R. v. Bennet Ersoll Hunter, 2012 NBPC 11

R. v. Bennet Ersoll Hunter – 2012 NBPC 11 Court File Number: 14265113 IN THE PROVINCIAL COURT OF NEW BRUNSWICK JUDICIAL DISTRICT OF MIRAMICHI B E T W E E N: HER MAJESTY THE QUEEN -and - BENNET ERSOLL HUNTER JUDGEMENT BEFORE: Judge Steven M. Hutchinson DATE OF HEARING: January 4 th , 2012 PLACE OF TRIAL: Miramichi, New Brunswick DATE OF DECISION: June 6th, 2012

APPEARANCES: For the Crown: Jean-Guy Savoie For the Defence: David M. Hitchcock, Q.C. JUDGEMENT INTRODUCTION [ 1 ] The defendant, Bennet Ersoll Hunter (hereinafter referred to as “Hunter”) stood trial on an Information alleging five counts. Those counts are all alleged to have occurred on May 29 th , 2010 at Doaktown, New Brunswick, and they are: 1) operating a motor vehicle while his blood alcohol limit exceeded the legal limit; 2) driving while impaired; 3) resisting peace officers in the execution of their duty; 4) assault with a weapon; 5) causing a disturbance in or near a public place.

EVIDENCE OF THE CROWN Mike Olmstead : [ 2 ] Mike Olmstead is the alleged victim with respect to an assault, alleged to have occurred at Doaktown, New Brunswick, on May 29 th , 2010. [ 3 ] According to the evidence given by Olmstead, a resident of Doaktown, New Brunswick, these events would have occurred on Main Street in that village at approximately 2:00 p.m. The original contact between Olmstead and the defendant occurred when Hunter was driving an all-terrain vehicle. Mike Olmstead testified that the defendant, Hunter, was “going crazy on the track”.

He later described “the track” as a walking trail that extends through the Village of Doaktown, where a railway formerly ran. [ 4 ] According to Mike Olmstead’s testimony, the defendant, Hunter, would have driven his all-terrain vehicle in close proximity to him as he was walking his two dogs, almost striking him in the process.

According to Olmstead, the defendant was driving a “four- wheeler racer” all terrain vehicle. [ 5 ] After this initial “encounter” Hunter would have continued driving along the trail, however, he then would have made a U-Turn and returned to where Olmstead was still walking. [ 6 ] There was subsequent conversation between these two persons, at which time Olmstead would have informed Hunter that he was not allowed to operate this type of vehicle on the track. Mr. Hunter would have disagreed. Olmstead testified that he would then have told Hunter to “get off the track”.

According to Olmstead’s evidence, Hunter would then have “told him off” and then asked him, “Do you want to have it out here?” [ 7 ] Olmstead testified that these events left him with the distinct impression that Mr. Hunter wanted to fight with him; however, Olmstead was not interested. According to his evidence, at this point in time, the defendant would have gotten off his vehicle, would have grabbed him and placed him in a headlock from which he could not extricate himself. This incident would have occurred near the residence of Andy Arbeau, a friend of Olmstead’s.

[ 8 ] According to Mr. Olmstead, this was the first time he ever met Hunter. He described him as wearing a helmet, being gray with red stripes with a shield on the front. Olmstead testified that after placing him in a headlock, the defendant then would have confronted Mr. Arbeau as he returned to his residence from a shopping trip. Accordingly, Arbeau would have requested that his son call the police for assistance, which he did. [ 9 ] At some time following the altercation with Arbeau, Hunter, who was standing next to Mike Olmstead, would have taken his helmet and struck him in the face with this helmet.

Upon seeing what was happening, Andy Arbeau intervened to stop Hunter from fighting with Olmstead. [ 10 ] According to the testimony of this witness, Hunter would have remained at the scene; however, he picked up his helmet and tried to leave when he noticed that the police had arrived. During this time, the defendant continued “yagging and hollering” at both Olmstead and Arbeau. “I don’t know what he said he just kept on hollering and mouthing off”.

As a result of this exchange, Olmstead testified that there were a lot of people in the background and they were all standing around. [ 11 ] The witness testified that he sustained no injuries from this altercation; however, he did sustain a torn T-shirt and his glasses, which had fallen to the ground, were damaged. He described himself as being smaller in stature than Mr. Hunter. [ 12 ] When questioned with respect to the condition of the defendant, Mr. Olmstead testified that he felt that Hunter was “feeling good”. He stated that “maybe he was drunk”.

He testified that he could smell liquor coming from him. [ 13 ] According to this witness, from the moment that the altercation took place until police arrived, approximately one hour would have passed. [ 14 ] In cross-examination, Mr. Olmstead agreed that he was annoyed that there were all-terrain vehicles using the walking trail, as this creates a lot of dust and is a problem for walkers who may be using the trail. He denies that he or anyone else threw rocks at Hunter’s vehicle. The witness in cross-examination stated that the whole incident took from two to three hours. Andy Arbeau: [ 15 ] Mr.

Andrew (Andy) Arbeau, a resident of Doaktown, also testified. He stated that he did not know the defendant, Hunter, at the time of the incident. On the date in question, his first meeting with Mr. Hunter occurred as he was returning from the grocery store, where he had purchased groceries for his father. He stated that when he left for the grocery store, Hunter was not in the vicinity. However, when he returned, Hunter came towards him running and cursing. This surprised Mr. Arbeau as he was unaware of any problems or what had previously transpired.

This altercation would have taken place in the driveway of his residence, situated on Main Street in Doaktown. [ 16 ] Arbeau testified that when Hunter approached him, he asked him if he “was the guy that was gonna beat him” to which Arbeau replied that he didn’t even know who he was. At this point in time, Mr. Arbeau asked his son to go into the residence and phone police. He was able to see Hunter with his helmet, which he took and swung at Mr. Olmstead’s face. This knocked Olmstead’s glasses off.

He stated that he thought there were a lot of “useless words” because Hunter was cursing and swearing and was visibly upset. He stated that Hunter wanted to shake hands with him, however, Mr. Arbeau merely asked him to leave. He never saw Mr. Olmstead make any physical gestures towards Hunter. [ 17 ] Andy Arbeau testified that he was present when police arrived on the scene. At that time, Mr. Hunter was getting on his bike to leave. Upon seeing this, the police officer requested that he get off the vehicle. According to Mr. Arbeau, Hunter wouldn’t listen nor was he cooperative.

The police had to forcibly prevent him from leaving the scene on his ATV. They finally succeeded in taking him and placing him in the rear seat of the police vehicle. [ 18 ] Mr. Arbeau was unable to testify as to whether or not Hunter was drinking and that he could not smell any alcohol coming from him. However, he did state that Mr. Hunter was “agitated” and testified that there was “saliva and stuff around his mouth”. “He was going on like someone that just lost it. He wanted trouble”. [ 19 ] In cross-examination, Mr. Arbeau described the defendant as “raving”.

He stated that Michael Olmstead was “rambling on”, but there shouldn’t have been a confrontation. Mr. Arbeau was witness to an exchange of words between Hunter and Olmstead. He admitted that he did intervene in an unsuccessful attempt to prevent the helmet from striking Mr. Olmstead.

Cpl. Richard Girouard: [ 20 ] Cpl. Richard Girouard, a qualified breath technician in the Blackville office of the Royal Canadian Mounted Police testified. On May 29 th , 2010, he was called to perform a breath test on a person detained by police. He arrived at the detachment and waited for that person who was in custody. At 4:40 p.m., Cst. Hugo Levesque arrived, and at 4:43 p.m., the detained person, the defendant, Hunter, was taken into the breathalyzer room. [ 21 ] According to Cpl. Girouard, he was able to observe a strong odor of alcohol emanating from the breath of the defendant.

He had bloodshot eyes, and he was emotional. He prepared the DataMaster and the DataMaster Check sheet. [ 22 ] Cpl. Girouard testified that he obtained a first sample of the breath of Hunter at 4:50 p.m. and a second at 5:09 p.m. Cpl. Girouard admitted that there were some technical difficulties that occurred surrounding the taking of breath samples from the defendant. [ 23 ] Originally the instrument failed to make a proper note of the date. The date was showing on the evidence ticket produced by the DataMaster as being May 28 th instead of May 29 th ; however, this was amended on the certificate of analysis.

He testified that the first evidence ticket showed the date as being May 28 th which he crossed out and inserted May 29 th . [ 24 ] Notwithstanding the several discrepancies indicated above, Cpl. Girouard testified that the information contained in the certificate of analysis (“A” for identification) is an accurate reflection of the readings as well as the times at which the samples of breath were obtained from the defendant Hunter. Cpl. Girouard was also satisfied that the DataMaster in question was operating properly and that the analysis were proper and accurate.

He was able to give this opinion as a result of the several internal tests that the instrument performs, all of which indicated to him that the machine was functioning properly. [ 25 ] With respect to the defendant, Hunter, Girouard testified that his recollection of the accused is quite vague. He could not identify him at trial. His evidence was given from notes taken at the time of the incident. [ 26 ] In cross-examination, Cpl. Girouard testified that the times indicating when the breath samples were taken, are those times that were recorded on his DataMaster Check sheet.

He confirmed that he was aware that there are maintenance reports that are filed with respect to this particular instrument. Cpl. Girouard was not aware as to who carries out the actual examination; however, this is done, and the results are forwarded back to the clerical staff at the police detachment. As a result, Cpl. Girouard was satisfied as to the proper working condition of the DataMaster on this particular occasion. Cst. Regan O’Keefe: [ 27 ] Cst. Regan O’Keefe is a member of the Royal Canadian Mounted Police stationed at Blackville, New Brunswick.

He was involved in the investigation surrounding the charges against Bennet Ersoll Hunter. He testified that on May 29 th , 2010; he received a request for assistance from Doaktown RCMP. As a result, he proceeded to 206 Main Street in Doaktown, New Brunswick. Upon his arrival at approximately 4:00 pm, he was able to observe a parked all-terrain vehicle. He also observed, a male person, with riding gear and helmet on, as well as a male and two elderly people. Soon after his arrival, he was met by a male who came towards him displaying a ripped shirt and broken glasses. This person was Mike Olmstead. [ 28 ] As Cst.

O’Keefe responded to a telephone call, the male with riding gear on, attempted to get on his all-terrain vehicle. Cst. Levesque a second member of the RCMP who was on the scene, advanced towards the person on the ATV in an attempt to prevent him from leaving the scene. [ 29 ] Cst. O’Keefe also testified that he could smell liquor coming from the male who was attempting to leave the scene on his ATV. This person has been conclusively identified as Mr. Hunter, the defendant in the within matter. Cst. Levesque then requested that Hunter take his helmet off, and he refused. Cst. Levesque then proceeded to place Mr.

Hunter under arrest for impaired driving. According to Cst. O’Keefe, Mr. Hunter “kept resisting”. [ 30 ] Cst. O’Keefe testified that because Mr. Hunter kept trying to “pull himself away”, he was obligated to handcuff him in order to subdue him. He testified that he handcuffed his right arm and brought him to his police vehicle. Once this person removed the helmet,

Cst. O’Keefe was able to identify him as being the defendant, Hunter. Apparently, he had dealt with him once or twice in the past. [ 31 ] Cst. O’Keefe testified that when he and Cst. Levesque became aware that Mr. Hunter may not remain at the scene, Cst. Levesque went to his left and Cst. O’Keefe went to the right of Hunter who at this time was on his ATV. Cst. O’Keefe removed the keys from the ignition of the vehicle. Mr. Hunter was then advised that he was under arrest, however, he kept trying to pull away from both officers. [ 32 ] Cst.

O’Keefe testified that the efforts to pull away by the defendant were more directed towards Cst. Levesque’s efforts than his own. Cst. O’Keefe stated that Cst. Levesque played the major role in subduing Mr. Hunter, while O’Keefe was primarily concerned with Mike Olmstead. [ 33 ] Cst. O’Keefe stated that during his encounter with Hunter he was able to smell liquor coming from his breathe. To his knowledge, no alcohol was seized at the scene. He stated that Mr. Hunter was talkative. He couldn’t make out what. He described his speech as being “slurred” and “he mumbled”.

This exchange occurred when he had his helmet on. Cst. Hugo Levesque: [ 34 ] Cst. Hugo Levesque was the final Crown witness. He is a member of the Royal Canadian Mounted Police with two and a half years experience. He is presently posted to the Doaktown detachment of the RCMP. [ 35 ] He testified that on the 29 th of May 2010, the RCMP office in Doaktown received a complaint at approximately 15:50 hrs. This was with respect to an all-terrain vehicle. [ 36 ] Cst. Levesque testified that he arrived on the scene at approximately 15:55 hrs. He was able to observe a verbal argument amongst several people at the scene.

He was able to observe a male, dressed in all-terrain vehicle gear, wearing a red and gold helmet as described in the complaint. There was a full-face helmet, goggles and an all-terrain vehicle. Upon arriving at the scene, Cst. Levesque asked the driver of the all-terrain vehicle to remove his helmet in order to establish his identity. He stated that he requested on at least three different occasions that the driver comply with his request, however, compliance was not forthcoming and Hunter continued arguing. Cst. Levesque was able to observe slurred speech even while the defendant was wearing the helmet.

He was also able to observe that his balance was unsteady. He stated that the defendant would have attempted to mount the all-terrain vehicle as they were talking to him. In an effort to prevent the defendant from leaving the scene, Cst. Levesque would have grabbed his left arm Hunter, in turn, would have grabbed the handles of his ATV. [ 37 ] Cst. Levesque and Mr. Hunter continued to exchange conversation. Mr. Hunter was trying to defend himself against allegations that he was driving on the trail and causing dust. During this conversation, Cst.

Levesque was able to smell what he described as a clear strong smell of liquor emanating from Hunter’s breath. It was at this point in time, that Cst. Levesque advised Mr. Hunter that he was under arrest for impaired driving. He testified that this would have occurred when Mr. Hunter was on his all-terrain vehicle. Upon being advised of his arrest, he exhibited no reaction, however, he did keep holding on to the handlebars of the ATV. Cst. Levesque confirms that Cst. O’Keefe was able to cuff the right wrist of Mr. Hunter; however, he kept pulling and according to Cst.

Levesque continued to actively resist the efforts of Cst. O’Keefe. [ 38 ] Cst. Levesque testified that he was not familiar with the defendant, Mr. Hunter. He testified that once he removed the helmet, he was able to observe extremely bloodshot eyes on the person of Mr. Hunter. He was then placed in the back of a police vehicle. Cst. Levesque testified that Mr. Hunter stated that he was just going home, and at this point in time, he became emotional. Mr. Hunter continued to defend himself by stating that all he was doing was riding his bike and that a rock had been thrown at the vehicle. [ 39 ] Cst.

Levesque continued the investigation. He made a demand for a breath sample into an approved instrument (breathalyzer). Cst. Levesque then continued and read Mr. Hunter his right to retain and instruct counsel, after which Mr. Hunter indicated that he understood, however, he did not wish to retain a lawyer at that point in time. He was asked whether or not he understood the breath demand to which he replied yes and indicated his willingness to provide breath samples for analysis. [ 40 ] Cst.

Levesque testified that he left the scene of the incident in Doaktown to go to the Blackville detachment at 16:17 (4:17 pm) hours. He would have arrived at the detachment at 4:40 p.m. And, at 4:43, he entered the breathalyzer room with Mr. Hunter and Cpl. Girouard.

[41] Cst. Levesque testified that during the trip to Blackville, Mr. Hunter kept asking for a chance. He was very emotional. He wascrying and sobbing. [42] Cst. Levesque testified that two samples of the breath were obtained from Mr. Hunter, the first being at 4:50 p.m. and the secondat 5:09 p.m. Cst. Levesque then would have proceeded to serve the defendant with a copy of the certificate as well as a notice ofintention to produce the document. He then would have dropped him off in Doaktown to be picked up by a responsible third party. Hewas released at approximately 8:00 p.m.

EVIDENCE OF THE DEFENCE [43] The defense called no evidence. POSITION OF THE CROWN [44] The Crown submits that it has proven all of the essential ingredients on the five different charges. As a result of that, the Courtshould convict on all five. POSITION OF THE DEFENCE [45] With respect to the offense under

Section 253(

b) of the Criminal Code, that is that the defendant drove his motor vehicle whilehis blood alcohol reading exceeded the legal limit, the defence submits that there is no evidence of a valid demand being made underSection 253(4) of the Criminal Code. The defence further posits that the Court could not infer from the evidence that the officer formedthe requisite opinion. The defence submits with respect to the admissibility of the certificate that there is no evidence of the fact that Cst.Levesque knew that the accused was driving a motor vehicle.

As a result, there is no foundation for the making of a breath demand. Inthis vein, the defence relies upon the New Brunswick Court of Appeal decision in R. v.

Searle. [46] With respect to the impaired driving charge, the defence maintains that there is insufficient evidence for the Court to concludethat the defendant’s ability to drive a motor vehicle was impaired by alcohol or drug on that particular occasion. [47] With respect to the charges of resisting a peace officer in the execution of his duty, the defence submits that there is really noevidence of this and that based upon the evidence which the Court has heard, there is no evidence that could be interpreted as resistingthe efforts of the peace officers on the date in question. [48] With respect to the assault with a weapon charge against Mike Olmstead, it is submitted by the defence that Mr.

Olmstead isquite simply not a reliable or credible witness, and for that reason, his evidence does not constitute proof beyond a reasonable doubt ofthe offence. [49] Finally, there is no evidence that these events constituted a disturbance near a public place. ANALYSIS (1)Driving with a blood-alcohol reading of over.08 [50]

Section 253(

b) of the Criminal Code of Canada prohibits anyone from operating a motor vehicle having consumed alcohol insuch a quantity that the concentration in the person’s blood exceeds eighty (80) milligrams of alcohol in one hundred (100) milliliters ofblood. In this particular matter, the Crown alleges that Cst. Hugo Levesque was justified in making a demand for a breath sample from Mr. Hunter based upon the observations that he made and the evidence he obtained at the scene of this altercation on May 29th, 2010.

The defence counters that there is no evidence and Officer Levesque never testified that he formed an opinion that the defendant Hunterhad within the preceding three hours committed an offense under

Section 253 of the Criminal Code. The defence further contends thatin the particular facts of the present matter, the Court could not infer that the officer held the requisite grounds. In arriving at thisposition, the defence relies upon the decision of the New Brunswick Court of Appeal in Searle vs. R, (2006) 2006 NBCA 118 ,215 C.C.C. (3d) 374. Section 254(3) of the Criminal Code reads as follows:

(3) If a peace officer has reasonable grounds to believe that a person is committing, or at any time within the preceding threehours has committed, an offence under

section 253 as a result of the consumption of alcohol, the peace officer may, by demand

made as soon as practicable, require the person (

a) to provide, as soon as practicable, (

i) samples of breath that, in a qualified technician’s opinion, will enable a proper analysis to be made to determine theconcentration, if any, of alcohol in the person’s blood, or [51] In the within matter, the defence alleges that there is no evidence that Cst. Hugo Levesque formed the necessary opinionrequired by Section 254(3) of thye Criminal Code, as there is no evidence that he knew that Mr. Hunter was driving his motor vehiclewithin the preceding three hours. When he arrived on the scene, Mr. Hunter was off the vehicle, the vehicle was stationary. The defencedoes not assert a constitutional violation.

It bases its position entirely on the Searle decision. [52] In Searle, the appellant sought leave to appeal a decision of a judge of the Court of Queen’s Bench who on a

summaryconviction appeal upheld an impaired driving conviction in the Provincial Court. [53] Searle involved a motor vehicle accident. Upon arrival at the scene, the police officer in question noted that a collision had takenplace. The officer observed symptoms which led him to form the opinion that Mr. Searle had operated a motor vehicle while impairedby alcohol and consequently made the demand for breath samples from Mr. Searle. [54] In Searle, the trial judge inferred the time of the accident based upon the evidence of the driver of the other vehicle involved inthe accident.

This witness testified that police arrived a short time following the accident. [55] At paragraph 16 of the decision, the Court of Appeal disagrees with the trial judge that in these particular circumstances, aninference could be drawn from the evidence that the police officer in question subjectively believed that an accident had occurred in thethree hours before the demand was made. The Court held that the time of the accident did not permit the inference that the defendant,Searle had driven his vehicle within the previous three hours.

More importantly, the evidence did not permit the inference that the policeofficer “subjectively believed that an accident had occurred in the three hours before he gave the demand”. Simply stated, there was nodirect evidence on this particular aspect and the Court disagreed that an inference could be drawn by the trial judge. [56] At paragraph 18, the Court notes as follows: In my respectful view, it was not open for the trial judge, on the evidence before him, to conclude that the demanding officer hadan honest belief that Mr.

Searle had committed an offence under s. 253 within the preceding three hours when he made thebreathalyzer(sic) demand. [57] In my opinion, Searle must be viewed in light of the fact that there is jurisprudence that a Court is entitled, in an appropriatecase, to draw an inference that the officer formed the requisite opinion, notwithstanding that there may be no direct evidence on thisparticular point. See: R. v. Clarke, [2000] O.J. No. 804, R. v. Blanchette, [1978] 41 C.C.C. (2d) 205, R. v. Hall, (ON CA), [1995] O.J.

No. 544. [58] In the within case, the Crown maintains that it would be appropriate for the Court to draw an inference that Cst. Levesque hadformed the requisite opinion. [59] It is safe to assume that the Court of Appeal was aware of the above line of jurisprudence and nevertheless felt that the inferencedrawn by the learned trial judge in Searle was not warranted by the facts. Given the similarity of the facts in the present matter and thesimilarity of the facts in Searle, I feel that it is not open to the Court to draw the inference that Cst. Levesque did formulate the requisite

opinion. Consequently, this Court finds that there is no evidence that Cst. Levesque had reasonable probable grounds to make thedemand, and as a result of that, the demand is unlawful. [60] The Searle decision holds at paragraph 25: Since the demand was not made in strict compliance with s. 254(3) of the Code, it is unlawful. The Crown cannot rely on thepresumption found in s. 258(1)(

c) unless the officer had reasonable and probable grounds to make the breathalyzer demand inthe first place. Without this presumption, there is no evidence of the concentration of alcohol in the accused’s blood at the timethe offence was alleged to have been committed. Thus, the Crown has failed to prove the element of the offence under s. 253(

b) ofthe Code. To summarize: the certificate is still admissible but the prosecutor is not, however, entitled to use the presumptionunder s. 258(1)(c). The accused must, therefore, be acquitted of the charge under s. 253(

b) of the Code. [61] The Searle decision, of course, is binding on this Court. I note that there is no expert evidence relating the certificate readings tothe time of the alleged offense. As a result, I will admit the certificate of analysis; however, because the Crown is precluded fromrelying on the appropriate presumption as a result of the unlawful demand, I find the defendant Hunter not guilty of the offense underSection 253(

b) of the Criminal Code of Canada. [62] For a similar result, the Court notes the decision of Walsh P.C.J. (as he then was) in R. v. Brian Allan Tracy NBPC 2009 35.

(2) Impaired Driving [63] Because of the acquittal of the accused on the driving over the legal limit charge, the Court must now determine if there issufficient evidence to conclude that an offence has been committed under

Section 253(

a) of the Code? This particular

section prohibits aperson from operating a motor vehicle while that person’s ability to operate the vehicle is impaired by alcohol or a drug. [64] In R. v. Stellato, (SCC), [1994] 2 SCR 478, the Supreme Court of Canada approved the following test withrespect to the proof required to establish as to whether or not a person’s ability to drive a motor vehicle has been impaired by alcohol.

The Supreme Court held that if the evidence of impairment to operate a motor vehicle is sufficiently credible and probative so as toestablish any degree of impairment in the ability to operate a motor vehicle, ranging from slight to great, the offence has been made out. [65] In R. v.

Andrews, 1996 ABCA 23 , [1996] 104 C.C.C. (3d) 392; the Alberta Court of Appeal sets out the followinggeneral principles in an impaired driving charge at page 405: In my view the following general principles emerge in an impaired driving charge: (1) the onus of proof that the ability to drive is impaired to some degree by alcohol or a drug is proof beyond a reasonabledoubt; (2) there must be impairment of the ability to drive of the individual; (3) that the impairment of the ability to drive must be caused by the consumption of alcohol or a drug; (4) that the impairment of the ability to drive by alcohol or drugs need not be to a marked degree; and (5) proof can take many forms.

Where it is necessary to prove impairment of ability to drive by observation of the accused andhis conduct, those observations must indicate behaviour that deviates from normal behaviour to a degree that the required onusof proof be met.

To that extent the degree of deviation from normal conduct is a useful tool in the appropriate circumstances toutilize in assessing the evidence and arriving at the required standard of proof that the ability to drive is actually impaired. [66] To recapitulate, what follows the pertinent evidence touching on the impairment of the defendant, Hunter? [67] Mike Olmstead testified that Hunter was speeding and “doing cowboy” on the track. Hunter came very close to striking him ashe drove by. Olmstead also testified that the defendant Hunter was: • very aggressive towards Mr. Olmstead.

• Olmstead testified that in his opinion, Hunter was feeling good. He stated that “maybe he was drunk” and that he could smell liquor coming from him. [ 68 ] Andy Arbeau testified that: • he was unaware as to whether or not Mr. Hunter was drinking and did say that he could not smell any alcohol coming from him. • Arbeau testified that Mr. Hunter was agitated, and there was “saliva and stuff “around his mouth, and • he was generally lacking in self-control and was described as raving. [ 69 ] Cpl.

Richard Girouard stated that when the defendant Hunter arrived at the RCMP detachment in Blackville, he was able to observe a strong odor of alcohol emanating from the breath. [ 70 ] Cst. Regan O’Keefe testified that he could smell liquor coming from Mr. Hunter. Cst. Hugo Levesque was able to observe: • slurred speech coming from Mr. Hunter, even when he was wearing his helmet. • that his balance was unsteady. • he was able to smell a strong smell of liquor coming from his breath. • after Mr.

Hunter removed his helmet, he was able to observe extremely bloodshot eyes. • when he was placed in the police vehicle, he became very emotional. During the trip to Blackville, Mr. Hunter would have repeatedly asked the constable to give him a chance, and he was very emotional. He was crying and sobbing. [ 71 ] In arriving at a decision in this matter, I find the following extract from the decision of R. v.

Elvikis , [1997] O.J. 234 per Hill J. to be instructive: 24 Impairment is an issue of fact which the trial judge must decide on the totality of the evidence. 25 If the evidence of impairment is so frail, when considered as a whole, as to leave the trial judge with a reasonable doubt as to impairment, the accused is entitled to be acquitted. 26 Circumstantial evidence as to impairment, advanced by the Crown, whether driving conduct, physical symptomology or physical test results, or some combination thereof, will have probative value on the issue of impaired ability to drive a motor vehicle, more or less, depending upon the nature and strength of the evidence adduced.

Items of circumstantial evidence are not to be viewed in isolation but the entirety of the evidence must be considered in determining whether the prosecution has discharged his burden of proof. 27 The more minimal the driving misconduct, the fewer the existing classic signs of impairment, and, the better the achievements of the accused in any physical testing situation, the more difficult it may be for the trial court to conclude that the ability of the accused to operate a motor vehicle was impaired by alcohol at the time of the said operation. 28 If the evidence of impairment is sufficiently credible and probative as to establish any degree of impairment ranging from slight to great, the offence has been made out.

In my view, this is the ratio of the judgment in R. v. Stellato , supra. The decision does not, however, stand for the proposition that the production of any evidence consistent with impairment, however minimal, requires the court to find the prosecution has discharged its persuasive burden of proving impaired operation of a motor vehicle. Such an approach impermissibly depresses the burden upon the Crown. 29 I n any given case, the prosecution need not prove objective evidence of the accused's departure from lawful driving standards.

In other words, the Crown may not be able to establish weaving, speeding, the causing of an accident, or the like, and yet discharge its burden of persuasion of impaired ability to operate a motor vehicle based upon other evidence, for example, consumption of alcohol and physical condition of the driver.

The driver, who evidences classic symptomology of impairment and/or who fails physical sobriety tests may be convicted of impaired operation of a motor vehicle where the court concludes that such evidence affected the accused's ability to drive, for example, in terms of judgment, field of vision and response time. [ 72 ] In the within matter, I have taken into consideration the following factors in arriving at a decision: 1. There is evidence that the defendant had consumed alcohol and that he was impaired. Evidence of impairment includes that offered by Mike Olmstead, Cst. Levesque and O’Keefe. 2.

He was driving his all terrain vehicle in an erratic manner. 3. He was aggressive with both of the police officers and with Mike Olmstead and Andy Arbeau.

4. Notwithstanding the above, the Court notes that no sobriety tests per se were performed. [ 73 ] The question now becomes whether or not this circumstantial evidence permits the Court to conclude beyond a reasonable doubt that the ability of the defendant to operate a motor vehicle was impaired. I am satisfied that the totality of the evidence establishes a moderate degree of impairment. The evidence establishes more than a frail degree of impairment.

Furthermore, to adopt the reasoning of the Alberta Court of Appeals in Andrews , the behavior exhibited by Hunter, on the date in question, leads the Court to the inescapable conclusion that there was a substantial deviation from normal conduct by this person. The degree of impairment permits the Court to conclude that there was impairment in the defendant’s ability to drive his motor vehicle. For that reason, the Court finds the defendant guilty of impaired driving. Credibility [ 74 ] Before embarking upon my decision on the remaining charges, I wish to deal with the question of credibility. In

summary, the defence made much of the fact that the Crown witness, Mike Olmstead, was not credible. The defence points out that; • Mr.

Olmstead was unable to identify the province in which the acts are alleged to have occurred. • He was not able to identify the date or the time. • He talked about the all-terrain vehicle going “100 miles an hour”. [ 75 ] As a result, the defence alleges that because of the imprecision and exaggeration in his testimony, that his evidence is not sufficient from which the Court can make a finding that the assault has been proven beyond a reasonable doubt. [ 76 ] With respect, I do not share the position of the defence that Mike Olmstead was an untruthful witness who lacked credibility.

The point is conceded by the Crown that some of his evidence lacks precision, however, after having carefully observed Mr. Olmstead testifying, having analyzed his testimony and having fitted it in with a balance of the evidence, I am satisfied that the broad outlines of his testimony are reasonable and truthful. [ 77 ] While at times Mr. Olmstead was inarticulate, this does not equate with being untruthful.

I am satisfied that some of his testimony may have sounded exaggerated (i.e. vehicle was going 100 miles per hour) however, in my opinion, this is more if an idiomatic expression as opposed to an exaggeration. My conclusion is that these instances of seeming exaggeration are nothing more than examples of how Olmstead expresses himself. It would be wrong and unfair to the witness to construe these as attempts to mislead.

(1) Assault with a weapon [ 78 ] I find as a fact that Mr. Hunter was driving his all-terrain vehicle on the walking trail in or near the village of Doaktown, New Brunswick that he would have been driving at a high rate of speed that he would have passed quite close to the complainant Olmstead. Olmstead was perturbed by this, and basically there then ensued a verbal exchange whereby Mr. Hunter would have grabbed Mr. Olmstead in a headlock. This is an assault. I am further satisfied that Mr. Hunter would have struck Olmstead with his helmet on the side of his face.

This is corroborated by the witness, Andy Arbeau, It is also corroborated by the torn shirt and the broken glasses of Mr. Olmstead. [ 79 ] I would note that the Court found Andy Arbeau a most credible witness. He gave balanced testimony. His testimony was without exaggeration and there were no particular biases that were evident. I was left with the impression that he was honestly endeavoring to testify as to what he saw on that particular occasion. The fact that he corroborates most of Olmstead’s testimony has persuaded me that they are both telling the truth. I accept their version of the events.

They are uncontradicted. [ 80 ] In the result, the Court is satisfied beyond a reasonable doubt that Hunter assaulted Olmstead with a weapon, in this case his helmet.

Section 2 of the Criminal Code defines “weapon” in the following terms: “ weapon” means anything used, designed to be used or intended for use (

a) in causing death or injury to any person, or (

b) for the purpose of threatening or intimidating any person

and, without restricting the generality of the foregoing, includes a firearm; [ 81 ] Based upon all of the evidence, I am satisfied beyond a reasonable doubt that Hunter assaulted Olmstead with his helmet when he struck him in the facial area using the helmet. It is clear from the evidence that Hunter intended to use the helmet in a manner that threatened to cause injury to Mike Olmstead.

(2) Resisting peace officers [ 82 ]

Section 129 (

a) of the Criminal Code prohibits anyone from resisting a peace officer while in the execution of his/her duty. The Court is satisfied based upon the evidence of both police witnesses as well as the evidence of Olmstead and Arbeau that the defendant Hunter resisted their efforts to arrest him upon their arrival on the scene of this incident. The evidence of the constables is uncontradicted. Clearly both police officers were, at all times, in the execution of their duty when dealing with Mr. Hunter on May 29 th , 2010. As a result, the Court is satisfied beyond a reasonable doubt that Hunter did resist Cst.

Levesque and Cst. O’Keefe in the execution of their duty, and consequently, I find him guilty of the offence under

Section 129(

a) of the Criminal Code of Canada.

(3) Causing a disturbance [ 83 ] In this particular count, Hunter is charged with causing a disturbance in or near a public place, to wit: Highway 8 in Doaktown. The evidence proffered by the Crown does establish an assault and an aggressive verbal exchange taking place. However, the evidence is not sufficient, in my opinion to establish that these acts caused a disturbance. This may very well have been the case however the evidence does not amount to evidence to proof beyond a reasonable doubt.

There is evidence that a group of persons had congregated in the area but there is no evidence that this was as a result of a “disturbance”. Consequently, Hunter is found not guilty of this particular offence. DATED at Miramichi, New Brunswick, this 6th day of June, 2012. ____________________________ Judge Steven M. Hutchinson Provincial Court of New Brunswick