R. v. Rueben, 2013 ONCJ 283

Citation: R. v. Rueben, 2013 ONCJ 283 ONTARIO COURT OF JUSTICE Old City Hall - Toronto BETWEEN: HER MAJESTY THE QUEEN — AND — TRACY RUEBEN ) ) ) ) ) ) ) ) ) ) ) ) ) ) S. De Filippis For the Crown D. Brown For the Defendant Heard: April 3 and May 15, 2013 REASONS for JUDGEMENT MELVYN GREEN, J.: A. INTRODUCTION [1] The defendant, Tracy Rueben, faces a single count of impaired driving.

As in many such cases, the issue is whether policeevidence of the defendant’s driving and roadside conduct (as here supplemented by videotaped recordings of his subsequent behaviour atthe police station) amount, in law, to proof to the requisite standard that the defendant drove while his ability to operate a motor vehiclewas impaired by alcohol. [2] “Impairment” is not defined in the Criminal Code. It is a factual question that must be decided on the evidence in each case: R. v. Stellato, infra; Graat v. The Queen (1982), (SCC), 2 C.C.C. (3d) 365 (S.C.C.), at 400-401.

The critical legalquestion in such prosecutions is not the degree of any impairment but, rather, whether an accused was in fact driving while his ability tooperate a motor vehicle was impaired by alcohol. Adopting the language of the Prince Edward Island Court of Appeal in R. v. Campbell(1991), (PE SCAD), 87 Nfld. & P.E.I.R. 269, at 320, the Ontario Court of Appeal authoritatively determined thispoint in R. v.

Stellato (1993), (ON CA), 78 C.C.C. (3d) 380, at para. 10; affd. (SCC), 90 C.C.C. (3d)160 (S.C.C.): It is not an offence to drive a motor vehicle after having consumed some alcohol as long as it has not impaired the ability to drive. However, a person who drives while his or her ability to do so is impaired by alcohol is guilty of an offence regardless of whether hisability to drive is greatly or only slightly impaired. [Emphasis added.] And later, at para. 14:

Before convicting an accused of impaired driving, the trial judge must be satisfied that the accused's ability to operate a motor vehiclewas impaired by alcohol or a drug. If the evidence of impairment is so frail as to leave the trial judge with a reasonable doubt as toimpairment, the accused must be acquitted. If the evidence of impairment establishes any degree of impairment ranging from slight togreat, the offence has been made out. [Emphasis added.] [3] Does the evidence here establish the requisite impairment? I turn to a review of the evidence before venturing an answer tothis question. B.

EVIDENCE [4] PC Conrad Wong and his partner PC Kevin Rasmussen were parked in their police car in an alleyway facing O’Hara Avenuein the Queen West part of Toronto at about 7:40 pm on January 6, 2012. Wong and Rasmussen are TAVIS officers. They werecompleting their notes regarding an unrelated matter when they heard the loud sound of car as it passed them heading north. Wongestimated the car was doing about 60 kph in a residential 40-kph zone. Rasmussen, who was driving, pulled out of the alley. Hefollowed the car, a red 2-door Porsche, as it made a right turn at the first corner onto Maple Grove Avenue.

The police activated theiremergency lights and the Porsche turned onto Brock Avenue at the next corner, slowing down, according to Wong, but not fullystopping for a Stop sign at that intersection. The police then activated their vehicle’s horn. The driver of the Porsche pulled over to theright side of the street and stuck his hand out the window waiving it from left to right. He then turned directly into the driveway of hisown home at 49 Brock.

There was no other traffic during the course of this brief pursuit. [5] In cross-examination, Wong allowed that the defendant stopped without difficulty at a second Stop sign at Earnbridge Street,about 40 feet north of Maple Grove on Brock and a couple of doors south of his home. (Rasmussen could not recall this.) Wong agreedthat the defendant’s car was not swaying or swerving and that the defendant took appropriate precautions in making his turns. He alsoagreed that the Porsche had deep bucket seats and was built low to the ground. Wong is six feet tall.

The defendant is taller still. [6] Rasmussen approached the driver, the defendant Rueben. He told the defendant to turn off his engine, remain in the car, andremove the keys from the ignition. The defendant was co-operative. He produced photo ID (although initially the wrongdocumentation) when his driver’s license was requested and began to argue with Rasmussen about why he was being investigated. Rasmussen had to bend over to speak to the defendant in the driver’s seat of his sports car.

He could smell alcohol on the defendant’sbreath and, with the aid of a flashlight, detected that the defendant’s eyes were bloodshot and a little bit glossy. His speech, however,was not slurred. He advised Wong of the odour of alcohol and that he was going to return to the police scout to conduct some computerchecks. He left Wong with the defendant.

Although Rasmussen considered the odour of alcohol sufficient to justify an approvedscreening device demand, he did not believe he had grounds to arrest the defendant for impaired driving. [7] Wong’s observations of the defendant’s eyes and the odour of alcohol were similar to those made by Rasmussen. LikeRasmussen, he had to bend over to speak with the defendant in the driver’s seat of his Porsche. Wong told the defendant to remain in hiscar. As he returned to his scout, Wong heard the sound of the Porsche door opening.

The defendant had placed both feet on the groundand was using the doorframe to push himself out of the vehicle. He appeared to be having difficulty and Wong put his hands on thedefendant for a few seconds to help steady him. Based on the defendant’s excessive speed, his sharp turns, the appearance of his eyes,the alcohol on his breath and what he viewed as some unsteadiness on his feet, Wong formed the belief that the defendant had beendriving while his ability to do so was impaired by alcohol. Accordingly, at 7:41 pm Wong arrested the defendant for impaired drivingand cuffed him to the rear.

This was approximately two minutes after he had first observed the Porsche and one minute, at most, afterthe defendant pulled into his driveway [8] The police left the defendant’s home at 7:53 pm. They arrived at Traffic Services Division at 8 pm and the defendant wasparaded a few minutes later. Both officers testified that difficulties experienced by the defendant in detaching his watch during theparade spoke, in their view, to his impaired motor skills. Samples of the defendant’s breath were taken at 8:38 pm and 9:02 pm. Boththe defendant’s parade and his breath-testing procedures were videotaped.

Wong and Rasmussen agreed that the defendant’s indicia ofimpairment at the station were no different than those exhibited during the investigation in front of his home. The defendant was nevercharged with speeding or any other HTA-related offence, Rasmussen explaining that he believed the defendant’s errant drivingbehaviour was comprehended by the charge of impaired driving. [9] Crown and defence counsel agree that the defendant’s behaviour at the police station following his arrest, as recorded in thepolice videotapes, discloses no indicia of impairment by alcohol.

My own repeated viewings of the video evidence confirm thisassessment: the defendant was completely responsive, coherent and polite throughout the booking procedure, a mere 20 or so minutesafter his arrest. His movements and co-ordination were fluid and natural, he exhibited no difficulty standing, and the manner in which heunbuckled his watch appeared in no way peculiar. As Crown counsel concedes, nothing in the video is probative of the defendant’simpairment. C. ANALYSIS [10] The central issue, to be clear, is not whether the defendant drank and drove but whether that drinking impaired his ability todrive.

The legal importance of this distinction is set out in the oft-quoted case of R. v. Andrews (1996), 1996 ABCA 23 , 104C.C.C. (3d) 392 (Alta. C.A.), at paras. 19, 20, 24, 27; leave to appeal refd. 106 C.C.C. (3d) vi (S.C.C), which adopts, explains andapplies the reasoning in Stellato: It is so important not to deal with the issue of impairment separate from impairment of one's ability to drive. Stellato must not beunderstood to mean that a person who has anything to drink and then drives a motor vehicle commits the offence under s. 253(a) [now s.253(1)(a)]. Nor does it mean any lack of sobriety is sufficient. …

The ratio of the judgment in Stellato is that it is not necessary for the Crown to establish a marked degree of impairment of the accused's ability to drive; rather, any degree of impairment of that ability, if proved beyond a reasonable doubt, will sustain a conviction. … … [ Stellato ] speaks to degree of proof. In other words, as framed in Stellato, the conduct must be of such a nature that an impairment of the ability to operate a vehicle (be it slight or marked impairment) is proven beyond a reasonable doubt. … … It is not deviation from normal conduct, slight or otherwise, that is in issue.

What is in issue is the ability to drive. Where circumstantial evidence alone or equivocal evidence is relied on to prove impairment of that ability, and the totality of that evidence indicates only a slight deviation from normal conduct, it would be dangerous to find proof beyond a reasonable doubt of impairment of the ability to drive, slight or otherwise. [ 11 ] One must, of course, have regard to the totality of circumstances to determine the question of whether an accused’s ability to drive was impaired by alcohol.

Crown counsel acknowledges that there is, here, no evidence of gross impairment – an otherwise unexplained single-vehicle accident, difficulty maintaining one’s balance or severely slurred speech, for but three common examples. At highest, the evidence of PC Wong that is said to incriminate the defendant amounts to the following: an odour of alcohol from which the defendant’s consumption of alcohol may be reasonably inferred; somewhat excessive speed; a rolling stop; slightly glossy eyes; and the defendant’s apparent difficulty extracting himself from a sports car.

PC Rasmussen’s observations add nothing to this inventory. Indeed, other than the six-foot-plus defendant’s effort to pull himself out of his low-slung sports car, Rasmussen’s observations were the same as his partner’s yet he, Rasmussen, did not believe he had the grounds to arrest the defendant for impaired driving. [ 12 ] Although their presence is neither factually or legally necessary, in assessing Wong’s observations I am mindful of the absence of many of the more conventional indicia of alcohol-induced impairment.

I am also aware that he formed his belief as to the defendant’s impairment less than a minute after his first personal contact with him. Most importantly, perhaps, both police officers say the defendant’s behaviour and demeanour at the station were no different than what they observed in the driveway of his home, and yet the video recordings of the defendant’s conduct at the station exhibit no signs of impairment whatsoever. [ 13 ] There is no doubt that driving, unlike many more mundane activities, demands a high degree of intellectual and motor-co- ordination.

Bearing that in mind, “The task of the trier of fact”, as I said in R. v. Selvarajah, 2011 ONCJ 468 , at para. 17 , “is to determine, on the basis of what is almost always a constellation of circumstantial evidence, whether the inference of an alcohol-induced impaired ability to drive is satisfied beyond a reasonable doubt”. The Alberta Court of Appeal made a very similar point in Andrews , supra, at para. 25 : … The question is simply whether the totality of the accused's conduct and condition can lead to a conclusion other than that his or her ability to drive is impaired to some degree.

Obviously, if the totality of the evidence is ambiguous in that regard, the onus will not be met. Common sense dictates that the greater the departure from the norm, the greater the indication that the person's ability to drive is impaired. For instance, if one is assessing driving conduct, exceeding the speed limit is something that many people do whether or not they have consumed alcohol. Thus, that factor would naturally be less indicative of one's ability to drive being impaired, than would weaving back and forth from lane to lane, or travelling on the wrong side of the road.

In the end the test remains, is the ability to drive of the person impaired [by alcohol]? [ 14 ] Although I expressly decline to make this finding, PC Wong may have had sufficient grounds to arrest the defendant for the offence of impaired driving. Viewed globally, however, the evidence of alleged indicia of impairment falls short of satisfying me beyond reasonable doubt that the defendant’s ability to drive was impaired. As said in Andrews , “if”, as I indeed find, “ the totality of the evidence is ambiguous in that regard, the onus will not be met”. Accordingly, I find the defendant not guilty. D.

CONCLUSION [ 15 ] For the reasons I have earlier developed, the defendant is acquitted of the charge of operating a motor vehicle while his ability to do so was impaired by alcohol. Released on May 28, 2013 __________________________ Justice Melvyn Green