R. v. Sintra, 2016 ONCJ 102

COURT FILE NO.: Central East – Newmarket – 13-03973 DATE: 2016-02-23 CITATION: R. v. Sintra , 2016 ONCJ 102 O N T A R I O C O U R T O F J U S T I C E BETWEEN: HER MAJESTY THE QUEEN — AND — CARLOS SINTRA Before Justice P.N. Bourque Reasons for Judgment Released on February 23, 2016 D. Lerner............................................................................................................. for the Crown J.

Dos Santos........................................................................... for the accused Carlos Sintra BOURQUE J.: Overview [ 1 ] The defendant was operating his vehicle on the evening on May 7, 2013 when he became engaged in a "road rage" incident with two men in another vehicle. As a result of that incident and the subsequent police investigation, he is charged with assault cause bodily harm to one man, assault to another and impaired driving and driving with excess alcohol.

He brings a Charter application and states that the results of the blood sample analysis should be excluded from evidence as a result of a breach of his

section 10(

b) rights. He also asserts that in his interactions with the two men, he was acting in self-defence. Ernest Carmichael [ 2 ] . . . is a York Regional Police officer with 6 years’ experience. He was in a parking lot walking towards an LCBO store when he heard a commotion on the street some 150 to 200 meters away. He was unable to describe the commotion but he attended and saw a white van stopped across the lane of Crosby Street and a man lying on the road beside the van. The officer went up to the man and he appeared to be unconscious.

He had blood over his face and a significant injury to his mouth area, with blood. The officer was shown a picture of the defendant taken in the hospital which clearly shows that there is a laceration through the cheek into the mouth of the defendant near his left lip. [ 3 ] He said he could smell alcohol on the breath of the man. He called for emergency assistance and the EMS and fire truck came. Two men approached him and told him about the incident. The officer took out the man's wallet and got his identification of the defendant.

As a result of his smell of alcohol, and the information from the bystanders and another police officer, he formed grounds to arrest the defendant for impaired driving and did so at 20:25. [ 4 ] At 20:26, while the defendant was sitting on a stretcher, he read the rights to counsel from his book. He asked the defendant if he understood and the defendant said "yes". He read the caution and the breath demand and when asked if he understood, the defendant said "yes".

The witness stated that he asked him if he wanted to call a lawyer and the defendant stated "no". [ 5 ] The defendant was taken into the ambulance and it left the scene with the officer inside. The officer said that EMS was speaking to the defendant but he does not remember anything being said and did not recall anything that the defendant may have said to them. The officer stated that he at one point in the ambulance asked the defendant if he had been drinking and the defendant stated: "Just

some wine and espresso with brandy". [ 6 ] The officer stated that he had previous dealings with the daughter of the defendant and spoke to her on one occasion at her house (nearby this incident) when the defendant was present but he does not remember speaking to the defendant.

He was aware that the defendant’s first language was Portuguese. [ 7 ] He stated that at the hospital, he did not recall any dealings with the defendant and does not recall speaking to any other officer about any language issues of the defendant. (Read into evidence and accepted for the truth of their contents were a portion of another officer’s notes where he said "I advised dispatch we may need Portuguese interpreter - none available - advised Carmichael no Portuguese officers").

The witness does not recall this conversation. [ 8 ] The officer stated that if the defendant had wanted to speak to a lawyer from the hospital, he could only have done so if there was a Sergeant in attendance who had an issue cell phone as constables don't have issue cell phones and he believed that the hospital would not have allowed such a call. He would however have given the defendant the privacy of the room to make any such call. As it was, he believed that the defendant did not want to speak to a lawyer. [ 9 ] He stated that he did not think that the defendant required an interpreter.

Ali Foughi [ 10 ] . . . was 48 years old at the time of the incident and he states that he was driving his 2002 Toyota Camry north on Yonge Street when he noticed a white van behind him moving back and forth and passing other vehicles. He stated that the vehicle came up behind him and was "tailgating" him and trying to pass. He described the defendant's actions as weaving left and right "aggressively". He stated that he pulled onto Crosby Street in order to get away from the van but it followed and went around his car on the left and then drove in front of him and stopped diagonally in front of him.

The witness stopped his car some two feet from the side of the defendant’s car. [ 11 ] He stated that the defendant got out of the van and came up to his car. He stated that he got out of the car as he did not want to be "trapped" and the defendant came up to him and hit him on the head. He stated that the defendant was cussing and shouting and the witness thought he was mistaking the witness for someone else. He again described him as being aggressive. The witness stated that he put his arms up defensively. He stated that he was struck several times. He stated that he may have hit the defendant as well.

He stated that his brother came out of the front passenger seat after him and he tried to get between them and he got hit as well. His brother was hit multiple times in the face on the left side. The defendant bit the brother's face which started to bleed badly. [ 12 ] The witness did not describe any injuries to the defendant and while admitting that there was blood on his face, he stated that the defendant then just lay down on the road in a "controlled manner". In other words, he denied that the witness or his brother did anything to him to cause the fall of the defendant.

The witness said he could smell alcohol on the defendant. He stated that he and his brother (and his mother who had gotten out of the car as well), got back into their car, he drove it to the right over the curb and some 50 feet in front of the scene. He stated that they stopped and when the police came, they got out of the car and went to talk to the police. [ 13 ] The witness was cross-examined as to why he did not just stay in his car and perhaps drive by the defendant’s vehicle as he did before the altercation happened, and he admitted that he could have done that.

He was also cross-examined about his leaving the scene. He stated that at the time he left, the defendant was on the ground and there were a lot of people around. I find it very hard to believe his assertion that he left because he was still in fear of the defendant. I noticed generally when asked to be specific of details as to how things happened he would say that he was not taking notes and could not remember things.

This happened many times in his testimony. [ 14 ] When the witness was cross-examined about the defendant's version of events, it came out that the witness had previously stopped at a stop light, the defendant attempted to pass him on the right there. The witness denied that the defendant got past him and denied that he followed the defendant onto Crosby Street. Ali Reza Foughi [ 15 ] . . . is the brother of the last witness. He did not give viva voce evidence at this trial. However, his statement to the police was filed to be accepted by me as his evidence without the need for cross-examination.

His evidence dovetails in many respects to the evidence of his brother with the following exceptions: (

a) He says that the defendant did indeed pass on the right before the turn and got in front of the complainant's car. The defendant's car would have been in front of the complainant’s car when it turned onto Crosby Street; (

b) This witness put the defendant in a bear hug before he was struck by the defendant; (

c) This witness stated that they got into their car after the fight and "drove" and it was only after they saw the police coming that they returned to the scene. [ 16 ] The last discrepancy causes the most concern. If indeed the two complainants were leaving the scene, that would, in my opinion raise some doubt in my mind as to whether they were the innocent victims of an unprovoked attack by the defendant.

I doubt that by the time that the defendant was lying on the ground, (and clearly wounded) and there were other people gathering around, that there would be a real concern for the complainant's personal safety. It is perhaps more likely that they were trying to leave the scene. Patricia Solbeck [ 17 ] . . . was certified by me (with the consent of the defence) as an expert in toxicology. She filed reports and gave evidence.

She performed the blood analysis and was of the opinion that between 7:30 and 8:08 p.m. the defendant's blood alcohol reading was between 96 milligrams of alcohol and 158 milligrams of alcohol in 100 millilitres of blood. It was also her opinion that "impairment with respect to driving becomes significant at a BAC of 50 milligrams in 100 millilitres of blood and increases from then onward.

Stuart Goodall [ 18 ] . . . is a breath technician. He was dispatched to the hospital for the purpose of performing the breath test upon the defendant. [ 19 ] For the purpose of the issues in this case, I note that he made note of his times as he went about his duties and that he was qualified to perform his duties. [ 20 ] At 21:50, he was set up in the hospital and was ready to do the breath test. He had received the grounds from Officer Carmichael. He stated that when he first saw the defendant, the defendant was passed out on the "gurney".

He waited for the defendant to be medically cleared to do the breath test as he had "seen injuries on the defendant". At 22:37, he went in to see the defendant and the nurse was checking him. He asked the defendant if he could understand him and the defendant said "yes". At 23:00, he read the technician’s demand for a breath sample and he asked the defendant if he understood and the defendant said "Yes, can you get me a copy after?".

The officer read the secondary caution and the officer asked him if he understood and the defendant said "yes". [ 21 ] At 22:58 he stated that a doctor cleared him medically to take the breath test, and Officer Carmichael turned him over to him at 22:58. [ 22 ] At 23:03 the officer started the first test. The defendant was partially sitting up on the gurney and he had blood around his mouth. He describes that there was a small, but bloody, cut near his mouth. The defendant tried to give a sample but said that "his face hurt". The defendant tried a second sample and his lips came apart and blood and air came out.

There was a partial reading of 89 per cent but it was not a suitable sample. The defendant again said that his lips hurt and the officer noted that he saw air and blood leaking from the side of his face, and there was blood leaking from the mouthpiece. The officer decided to stop as the defendant said that he was in pain and also the presence of blood into the machine would not result in a proper sample. [ 23 ] At 23:05, he therefore decided to do a blood kit. He examined the kit and found everything in order and at 23:10 he read the Blood Demand.

He asked the defendant if he understood and the defendant said "yes". He stated that he spoke to the doctor and the doctor approved taking the blood sample and a nurse came in and took two samples into two individual vacucontainers. The containers were marked and eventually sent to the Centre for Forensic Science. [ 24 ] At no time did this officer ask the defendant any questions about whether he wished to call a lawyer, or indeed if he had spoken to a lawyer. On the time sheet filled in by the arresting officer, it was clear that apparently this defendant did not want to speak to a lawyer.

It is clear that he had not done so. This officer, on that basis, clearly felt there was no need for him to discuss this with the defendant at all. The Defence Carlos Sintra [ 25 ] . . . testified in his defence. He stated that he had been working at his brother's house that day and was finished at about 6:00 p.m. He had dinner with his brother and his sister-in-law. He stated that at dinner he had one glass of wine and a brandy with his coffee. He stated that he left at between 7:15 and 7:30 to go to his daughter's house where he would visit his daughter and his grandchild.

The defendant’s daughter is blind and deaf and she lives in a housing complex with many disabled people. The defendant is a native of Portugal, but came to Canada in 1985. He worked in concrete forming for a Portuguese company for 11 years and then for a general contractor, and states that everyone speaks either Portuguese or Italian. He described that he speaks Portuguese and Italian and a little bit of English. [ 26 ] He related that as he was driving up Yonge Street in his van, he stopped behind a vehicle at a red light.

When the light turned green, the vehicle in front did not move so he moved over to the right and passed it and said: “You don't see the green light?" to the driver of the car as he passed. It was his evidence that he proceeded up Yonge Street and the vehicle behind him was following closely and the person was honking his horn. He turned onto Crosby Street which is where he was going as his daughter's apartment was nearby.

He said he was concerned about the people following and did not want them follow him all the way so he stopped his vehicle on a partial angle and got out of his van and walked toward the car and said "What’s wrong with you guys?". He stated that as he got to the side of his van, the driver came up to him and struck him on the side of the face. He was also punched several times in the body. The second man from the car came up and he was punched and he began to faint.

He said that as he fell, he felt he was kicked several times by both men. [ 27 ] Already filed as exhibits in this matter were several pictures of the defendant. One of the pictures was taken after the incident and after he was "cleaned up at the hospital". It shows a significant wound to the left side of his face. From his mouth and running for about two inches is an open hole. Such a wound supports his contention that his dentures were broken by this blow and his glasses were broken (he brought them to court but they were not filed as an exhibit).

Such a significant wound also leads anyone to doubt the assertion of the witness Foughi that he and his brother struck no blows but only put their hands up to protect themselves. Such a wound could only have been caused by a hard and deliberate blow to the defendant's face. [ 28 ] He states that he then remembers nothing other than being on the stretcher and being spoken to by the EMS person, who was a woman.

He denies (or at least has no recollection) of being spoken to by the officer at the scene and denies the officer's recitation of the questions and answers at the roadside and specifically denies he was given rights to counsel. [ 29 ] He states at the hospital, he was left in a corridor on a stretcher for a long period of time and then taken to a room. He recalls a policeman telling him to blow into a tube and relates that he tried to do so but could not because of the pain to his mouth. He also states that he recalls the nurse taking his blood.

He denies (or has no recollection) of any conversations with anyone at the hospital. He remembers being handcuffed and taken to a police car. He exchanged words with officers at the police station and went through something of a process to get into his van and retrieve some money and his phone. He admits having some words in English with these officers.

[ 30 ] He states that at no time was there any discussion by any officer with him about a lawyer until he was given some papers and then released. He states that an officer told him that he "needed a lawyer". He also stated that it was only later when he showed the papers to his sister-in-law and she read them that he really understood that he had been charged with an offence. He stated that he could not read English. [ 31 ] He was cross-examined extensively about his knowledge of English. It is clear to me that he has some working knowledge of English and can communicate in English about everyday things.

I accept that he is illiterate in English. That is a clear indication in my mind that his English is limited. [ 32 ] He was also cross-examined extensively about the scene at the roadside. He did not change his version of events notwithstanding such cross-examination. Analysis [ 33 ] The Crown bears the burden of proving the essential elements of the offences against the defendant beyond a reasonable doubt. With regard to the charges of assault and assault causing bodily harm, The defendant has provided an explanation which, if believed would afford him a complete defence.

In assessing his defence, I apply the doctrine of R v. W. (D .) which states: First, if you believe the evidence of the accused, obviously you must acquit. Secondly, if you do not believe the testimony of the accused but you are left in a reasonable doubt by it, you must acquit.

Thirdly, even if you are not left in doubt by the evidence of the accused, you must ask yourself whether, in the basis of the evidence which you do accept, you are convinced beyond a reasonable doubt by that evidence of the guilt of the accused. [ 34 ] With regard to the charges of assault and assault bodily harm, upon review of the defendant's evidence, I find there are some difficulties with simply accepting his version of events. His performance in the witness box leaves something to be desired, although I attribute a lot of the difficulties to the translation issues.

I accept that for many of the questions, because they attempted to elicit the defendant's comprehension of English, made it a difficult session. I also accept that, generally, cross-examining through translation is just difficult. However, I find that on occasion, his responses were evasive and not responsive to the questions asked. [ 35 ] He admits stopping his car in the middle of a public street to confront the driver of another car about some perceived driving issues. In that sense, it is the scenario of a classic "road rage".

He has put himself in a situation he could be perceived as the aggressor and thus the author of his own misfortune. The complainants had some minor injuries and there is a possibility that it could have been from a bite. That also gives me some pause. [ 36 ] For these reasons, I find that I cannot simply accept the totality of his evidence although many parts of it I can accept (I will review it again in the context of the Charter application). [ 37 ] Even not being convinced of the correctness of the defendant's version of events, does it leave me with a reasonable doubt?

The question to be decided is who threw the first punch? In that sense, the defendant’s evidence could leave me with a reasonable doubt. He was seriously wounded in the altercation. He fell to the ground and upon the officer's evidence, he was concussed. His glasses and his dentures were broken. Neither of these two individuals knew each other. Neither of them had a criminal record. [ 38 ] Upon an assessment of the Crown's evidence, my doubt increases. The evidence of the Foughi brothers is inconsistent in several important respects.

They do not agree as to which car was in front and in doing so, leave open the real possibility that it was the complainant who followed the defendant onto Crosby Street and not the other way around. In addition, the leaving of the scene raises real concerns in my mind. The complainant states that he was afraid of the defendant and therefore had to drive away. It is hard to believe that when the defendant is down on the ground (and not rising) and a lot of onlookers now on the scene, the witness would be in a greater state of fear than he was at the beginning of the altercation.

Most importantly, I feel that the complainants were indeed attempting to leave the scene and would have done so had the police not arrived. [ 39 ] I am also leery of the complainant's evidence where he is adamant that he did not strike a blow to harm the defendant. The severe injuries to the defendant speak of a deliberate and forceful blow to the face of the defendant. It is much greater that a flailing in self-defence. The picture of the wound on the side of the complainant's face is not conclusive of a bite. It could very well have been from the protruding denture from the defendant's mouth.

There is no expert evidence to assist me either way. For the reasons I have set out above, I am not just willing to accept the two complainants’ evidence in this regard. [ 40 ] Upon my review of all of the evidence, I am not convinced that the defendant struck the first blow. I am also not convinced that the defendant bit anyone. By any comparison, the defendant received much the worse of this altercation. As a result of the blow to his face, he may very well of struck out. I can't see how any of the injuries to any of the complainants are the result of any excessive force.

I believe that the defendant can rely upon

section 34 of the Criminal Code . I find that the following factors assist the defendant: 1. the defendant was confronted by two persons 2. the defendant was significantly injured by a blow from the complainants [ 41 ] I understand that the defendant stopped his vehicle in front of the complainants’ car and got out to confront the complainants. I am not satisfied he struck the first blow. In fact it is unlikely that he did so. [ 42 ] Based upon all of the above, I am left in a real doubt about the defendant's guilt on the charges of assault and assault cause bodily harm and both of those charges will be dismissed. The Charter Application

[43] A warrantless search is deemed to be unreasonable. It is up to the Crown on a balance of probabilities to show thereasonableness of the search. [44] The defendant alleges that his right to counsel as per

section 10(

b) of the Charter has been infringed and if I make such afinding, then after an analysis under section 24(2), the blood test results should be inadmissible in evidence against him. The Law [45] R. v. Taylor, 2014 SCC 50 , [2014] 2 S.C.R. 495 restates the importance of Charter obligation under

section 10(a)and 10(

b) of the Charter of Rights and Freedoms. Par 21: "The purpose of the s 10(

b) right is to allow the detainee not only to beinformed of his rights and obligations under the law but, equally if not more important, to obtain advice as to how to exercise thoserights". [46] The specific question here is, based on the circumstances of this case, were there "special circumstances" present whichobligated the police to do something beyond simply giving the standard "rote" recitation of the rights to counsel and accepting, at theoutset of the investigation, a simple "no" response to a question of wanting counsel. [47] In R. v.

Vanstaceghem, (ON CA), [1987] 21 O.A.C. 210 (ONCA), the court stated at para. 10, "whether theaccused had been advised of his rights pursuant to s. 10(

b) of the Charter in a meaningful and comprehensive manner?". [48] In R. v. Bartle, (SCC) the court stated at para 19: "absent special circumstances indicating that a detainee maynot understand the s. 10(

b) caution, such as language difficulties or a known or obvious mental disability, police are not required toassure themselves that a detainee fully understands the s. 10(

b) caution..." [49] With regard to language issues, Justice Nelson in R. v. Oliva Baca, [2009] No. 1926 (C.J.) set out a very useful set ofprinciples: 1. The mere fact that an accused speaks with an accent is not, in and of itself, sufficient to result in special circumstances whichrequire the police to ensure the accused understands his rights to counsel. 2. Special circumstances may be obviated if the police ask the accused if he has language difficulties; advise duty counsel of apossible language issues; or offer an accused the opportunity to speak to duty counsel who speaks the accused’s language. 3.

When it is clear that an accused has difficulty understanding the language, especially when he states he has difficultyunderstanding, special circumstances may arise. 4. The fact that an accused does not specifically ask for an interpreter or duty counsel with a specific language facility is notdeterminate of the issue of special circumstances. An accused may not be aware such accommodations exist. 5. Whether or not the police believed the accused understood his rights is not determinative of the issues. 6.

When the accused speaks to English speaking duty counsel, this fact alone is not sufficient to indicate he exercised his rights tocounsel. This is the case even when the accused does not complain with respect to the advice given. [50] With regard to the issues of the injuries to the defendant, I believe that clearly there are circumstances where the state ofthe injuries, perhaps coupled with other factors could make it apparent that there is a general lack of comprehension. Obviously anunconscious person is in no state to comprehend anything said to him.

Where a person has recently revived from a concussion and is stillsubject to the effects of the trauma, I believe it is a matter of fact to determine whether this affected the ability of the defendant tocomprehend the rights to counsel, and make an informed decision as to whether he wanted to assert the right (R. v. Owens 2015 ONCA652 , [2015] O.J. No. 4972), and also as to waiving that right. The officer was not clear as to the time that he first saw thedefendant on the ground to the time that he gave him the RTC.

I believe it could be no more than 15 minutes. [51] With regard to the Crown's assertion that the defendant waived his RTC I quote from R. v. Prosper, (SCC), [1994] S.C.J. No. 72, where the court stated that the standard required for an effective waiver of the right to counsel is very high.A person who waives a right must know what he or she is giving up if the waiver is to be valid. That being said, it stands to reason thatthe right to counsel guaranteed under s. 10(

b) must not be turned into an obligation on detainees to seek the advice of a lawyer. Wheresomeone needs the services of an interpreter, a waiver is not valid. (R. v. Vassilev, [2008] O.J. No. 1530). In R. v. Devries, 2009 ONCA477 , [2009] O.J. No. 2421 (C.A.), the court observed that where an accused has waived his right to counsel at the roadside,failure to re-advise the rights to counsel at the station does not "necessarily constitute a breach of s. 10(b).

That said, however, I thinkthat in cases such as this, it would be a much better practice for the police, upon arrival at the detachment, to reiterate the right tocounsel". The Factual Foundation [52] With regard to the factual foundation, I make the following findings of fact based upon all of the evidence: 1. The defendant was a native Portuguese speaker. English was a second or even third language. He had been in Canada since 1985and I find that he had a reasonable working knowledge of verbal English which was sufficient in everyday familial and socialconversations.

He was however functionally illiterate in English; 2. I accept the evidence of Officer Carmichael. I accept his observations of the defendant at the scene. I accept that the defendantwas unconscious when the officer arrived at the scene and within 20 minutes of being in that unconscious state, the officer arrested himand provided him with the rights to counsel using the formal words in his notebook. I find that he did receive responses from thedefendant as indicated. I find that the officer never attempted to explain the rights to counsel to the defendant in any fashion other than

the formal reading of the words. I find that he never in the following 3 hours (when the breath technician began to attempt to take breath samples) made any attempt to speak to the defendant about his rights to a lawyer; 3. I find that Officer Carmichael was aware that the defendant was a native Portuguese speaker. I find that another officer was concerned enough about the issue to investigate whether a Portuguese speaking officer was available. I find that he informed Carmichael of his efforts. I find that Carmichael ignored this issue in its entirety.

The three or four short responses he received from the defendant satisfied him that there were no language issues. I find that Carmichael made no efforts to see if any consultation by the defendant with a lawyer could be facilitated at the hospital; 4. I find that the defendant was concussed. I find that the defendant did a receive a serious injury which made it impossible for him to provide a breath sample. I have absolutely no evidence as to any medical treatment provided to the defendant at the hospital other that the medical staff assisting the police in obtaining their evidence in the criminal investigation.

I accept that defendant's assertion that he was in significant pain throughout this period of time; 5. I find that the breath technician made no inquires whatsoever about whether the defendant had received legal advice. I find that he did not provide the defendant with rights to counsel. I find that the officer requested the defendant to blow two occasions into the intoxilyzer device.

Having viewed the pictures of the defendant which clearly shows a large open wound in the side of his cheek, I find it almost incomprehensible how this breath technician believed that the defendant could provide a sample of his breath. In any event, his attempts led to a stream of air and blood issuing from the side of his face.

I find that even when he then proceeded with a blood demand, he did not think it necessary to provide the defendant with rights to counsel. [ 53 ] In rejecting the defendant’s evidence on whether he received the warnings and questions as indicated by the officers, I do not make an adverse finding against the defendant about his trustworthiness. I find his memory lacking in these issues. I also find that he was very cooperative with the officers.

He followed instructions without complaint, perhaps he was too compliant, but nonetheless there were in my opinion issues which should have been obvious to the police officers which cumulatively should have alerted them to the fact that there were indeed “special circumstances which required them to do more than proved a "rote" rights to counsel at the very beginning of an investigation”. I find that the cumulative effect of the concussion and the language issue were such that his purported failure to assert his right was not in any way made in an informative situation.

The circumstances in my opinion excuse his failure to assert the right while he was on the ground or on the gurney. [ 54 ] I therefore find that the officers breached the defendant’s rights under

section 10(

a) of the Charter . [ 55 ] The question is, pursuant to the analysis required (in R. v. Grant ), should I exercise my discretion under section 24(2) of the Charter and exclude from evidence the results of the blood tests. [ 56 ] With regard to the first item I find that the seriousness of the charter infringing conduct to be significant. I find that Officer Carmichael did not turn his mind to the issue of whether the defendant really understood his rights to counsel. To expect a recently concussed person who is not a native English speaker to fully understand their options was not at all reasonable.

The time at the hospital compounded the issue. The officer was informed that one officer was concerned enough to seek a Portuguese speaking officer to assist. This had no effect upon Officer Carmichael. He ignored that officer's concern. In the over two hours spent at the hospital, with plenty of time to fully review the issue, neither Carmichael not the breath technician thought it was worthwhile to canvass the issue with the defendant. Even where the demand changed, the breath tech did not think that it was worthwhile to see if the defendant wanted some legal advice before submitting to the blood taking.

I note that the defendant was cooperative with the officers at all times. [ 57 ] With regard to the Charter protected interests of the defendant, while a breath test has been held to be minimally intrusive, taking into account the injury to the mouth area of the defendant, I find in this case, it was anything but minimally intrusive. He was in pain and this open wound was spewing blood when he attempted to blow.

Changing to a blood test was better in this circumstance, but in any event a blood test is, in my opinion, more intrusive than the standard breath test. [ 58 ] With regard to society's interest in adjudicating the case on the merits, I note that while granting this relief would end the over 80 charge, it does not affect the assault charges and the Crown is still free to lead some compelling evidence of the impairment. [ 59 ] I believe that taking into account all of the factors in this case that admitting the results of the breath test into evidence would bring the administration of justice into disrepute. [ 60 ] There being no evidence with regard to the drive with excessive alcohol charge, I dismiss that charge.

Is the Defendant guilty of impaired driving? [ 61 ] As per R. v. Stellato , the court need only be convinced beyond a reasonable doubt of the guilt of the defendant if it finds that the defendant is impaired to any degree. [ 62 ] The evidence of impairment by alcohol consists of the following: (

a) the smell of alcohol on the defendant ; (

b) the facts of the altercation with the complainants. [ 63 ] There is no other evidence of impairment, not at the roadside and not at the hospital. There is no evidence of any deterioration of any fine motor skills. Any physical observations of the defendant would be attributed solely to the injuries that he received during the fight. [ 64 ] The opinion evidence of the toxicologist called by the Crown is of no use as the breath test results have not been taken into evidence.

[ 65 ] I find that the evidence of impairment in this case to be absolutely minimal and not nearly enough to convince this trier of fact beyond a reasonable doubt that the defendant was impaired to any degree. Conclusion [ 66 ] Based upon all of the above, I find the defendant not guilty of all charges. Signed: “Justice P.N. Bourque” Released: February 23, 2016