Her Majesty the Queen - v. -, 2012 SKPC 8

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2012 SKPC 008 Date: March 5, 2012 Information: 46743678 Location: Saskatoon _____________________________________________________________________________ Between: Her Majesty the Queen - and - Michael Francis Joseph Coffey Appearing: Cory Bliss For the Crown Andrew Mason For the Accused JUDGMENT P.S. KOLENICK , J BACKGROUND [ 1 ] The accused is charged with having committed the following offences, at or near Saskatoon on or about October 26, 2010: 1) While his ability to operate a motor vehicle was impaired by alcohol or a drug, operate a motor vehicle, contrary to section 255(1) and

section 253(1) (

a) of the Criminal Code ; 2) Without reasonable excuse, fail or refuse to comply with a demand made to him by a peace officer pursuant to section 254(3) (

a) of the Criminal Code , to provide samples of his breath for analysis, contrary to section 254(5) of the Criminal Code . [ 2 ] The accused had provided one suitable Intoxilyzer sample of 170 milligrams percent. That had occurred despite his claim that he had been seriously assaulted by three assailants just prior to his initial encounter with the police. Repeated blows to the head and jaw made it very difficult for him to properly position the mouthpiece in his mouth without experiencing much pain.

The assistance which the officer had offered for the first sample was not repeated for the second sample and he was told to keep his hands off the mouthpiece. As a result, he has been charged with refusal contrary to s. 254(5) of the Criminal Code . [ 3 ] Therefore the following issues arose: Is the evidence for the Crown sufficiently credible to prove beyond a reasonable doubt impaired operation contrary to s. 253(1) (

a) of the Criminal Code ? Is the evidence for the Crown sufficiently credible to prove beyond a reasonable doubt that the accused was without reasonable excuse for his omission, as set forth in s. 254(5) of the Criminal Code ? REVIEW OF EVIDENCE FOR THE CROWN Constable Gregory Pozniak [ 4 ] Constable Pozniak of the Saskatoon Police Service confirmed that he is a qualified technician of the Intoxilyzer Model 5000C and has conducted 290 tests in the course of his career.

He has been a peace officer since 2006. [ 5 ] He was operating an unmarked police vehicle on 22 nd Street East in Saskatoon when he became aware in his rearview mirror of the accused’s motor vehicle approaching from behind. The manner of driving caused concern so the officer stopped to allow the accused’s motor vehicle to catch up.

Among the matters observed was that despite being 2:00 a.m. or 3:00 a.m. and dark out, the accused was operating his motor vehicle with no headlights for some distance, and had deviated slightly in his travelling lane. [ 6 ] Before he could signal the accused to stop, the officer received a dispatch in regard to an alleged disturbance in the general area where he was located. It was his belief that the accused may have been one of the parties involved in the alleged disturbance.

Regardless he had identified the accused in court as the person he had encountered at the Police Services Building, at which they had both attended for the purpose of taking Intoxilyzer samples in the same time frame. [ 7 ] In preparation for obtaining the samples, the officer interviewed the accused to obtain pertinent details and made some notes. In that regard, the accused advised he had consumed two to two and one-half drinks before he had been stopped at 4:17 a.m. As well, he had not consumed any drugs or prescription medication. He confirmed he was able to breathe, and seemed to be physically normal.

In preparation for providing samples, all checks and tests had been successfully completed on the instrument. [ 8 ] The first attempt was at 4:31 a.m. Prior to it, the accused had been provided with a new mouthpiece placed on the breath tube. He was told to form a tight seal with his lips and blow until instructed to stop. However he did not provide a proper seal with his lips. He was told again to seal with his lips in the proper fashion. The officer noted as well that there was no fog in the mouthpiece to suggest proper air entry and a suitable sample had not been provided.

He explained again to the accused the method necessary to provide a proper sample and that a failure to comply would result in a criminal offence of refusal. However the blow was for only two or three seconds, with his lips wide open again. The officer could feel air escaping from the mouthpiece. The accused made several attempts of two or three seconds, to no avail. He was not providing a proper sample and was biting down on the mouthpiece. The officer noted on various occasions that in these attempts he would start properly and then grab at the mouthpiece, contrary to the

officer’s instructions. In general the accused did not appear to be exerting sufficient air or physical effort to provide a proper sample. [ 9 ] In any event, the instrument was reset for a second attempt after time had expired on the first effort. Again the accused was reminded that he was risking a charge of failure to comply. The accused exited the room at that time while they waited time for the second test, the officer provided a suitable sample of his own in the instrument, and brought his mouthpiece to court. [ 10 ] That same procedure was, in due course, used for the second attempt at a sample.

Again the officer used a new mouthpiece and told the accused to keep his hands on the counter and maintain a tight seal with his lips. He made several attempts with his teeth on the mouthpiece, from which the officer could feel air escaping. However, he was able to provide a suitable blow for roughly twelve seconds of 170 milligrams percent which was regarded as adequate for present purposes. [ 11 ] In preparation for the second sample the instrument was purged and the accused waited twenty minutes. Thereafter he was brought back into the room and provided again with a new mouthpiece.

Once more he was instructed to provide a tight seal with his lips around the mouthpiece and breathe. However on this occasion he burped before providing the sample which appeared to the officer as having been deliberate. He had been told not to burp because that could invalidate the sample by providing mouth alcohol, rather than air from his lungs. The burp had been of short duration from the accused swallowing air.

In any event, the accused was advised that they would need to wait a further twenty minutes and that attempt was voided. [ 12 ] After they waited twenty minutes, the accused was brought back to the instrument one more time. Again, a fresh mouthpiece was used and he was advised to form his lips around the mouthpiece and blow until he was told to stop. On this occasion again, there were several attempts of two to three seconds only, biting down on the mouthpiece with his mouth wide open, allowing air to escape from his lips and mouth.

The officer could hear and feel the air escaping from the mouthpiece. [ 13 ] The accused was warned again that he would be charged with the offence of failure to comply. At that time one of the other officers present for the investigation had taken his own mouthpiece and provided a demonstration for the accused as to the proper method to use the mouthpiece in order to provide an adequate sample.

Regardless, the accused did not provide an adequate sample before time on the instrument had expired on this occasion and was told he would be charged with failing or refusing to provide an adequate breath sample as required by law. At that time the officer again himself blew into the instrument and was able to provide a proper lawful sample. [ 14 ] Also entered as an exhibit were the five mouthpieces used in the course of the investigation, all in apparent proper working order. Included therein were the two allegedly failed attempts by the accused.

The one where he had provided an adequate sample of 170 milligrams percent and the two samples which the officer himself had provided to test the working order of the instrument. [ 15 ] In regard to signs of impairment the officer had noted glassy, bloodshot eyes, slow responses to questions, a moderate smell of alcohol from his breath which became stronger as the accused spoke. As well he was somewhat unsteady on his feet as he rocked from side to side for balance which he could not control.

In general, the signs of impairment remained throughout his contact with the accused. [ 16 ] In the course of examination-in-chief we were required to adjourn in order that the defence could properly review the DVD video disc of the accused’s alleged actions in this investigation. It was entered as an exhibit herein for the Crown. [ 17 ] Before reviewing the evidence on the video disc, the officer confirmed that in the course of his career he had taken roughly 290 samples.

In his opinion, the signs of impairment which the accused had displayed, would be consistent with a reading of 170 milligrams percent. [ 18 ] He noted that during Incident 8 on the video disc, the accused had stumbled back against a wall which was a further indication of impairment. In general he confirmed as well from the video the same problems for the accused in providing a proper sample, despite being explained the proper method. He was biting down on the mouthpiece and holding it in his hands even though he

had been advised by the officer and another member of the proper procedure to provide an adequate sample. On one of the attempts the machine “timed out” after the three minutes which required the process to be started again, and the accused returned to the interview room. [ 19 ] On Incident 12, on the video disc, again the accused was presented with the machine. It was explained once more to the accused the need for a tight seal on the mouthpiece and to blow once more until told to stop. Despite that the accused pulled away.

Once more he was holding the mouthpiece and leaning in, the latter of which was regarded as being a further sign of impairment. After leaving the room again to avoid the possible “ambient fail” and an improper failed reading, the accused was able to provide a suitable sample of 170 milligrams percent. On that occasion the seal on his mouth was not perfect but sufficient for these purposes. [ 20 ] Incident 18 continued the alleged investigation. Included therein was the accused burping which the officer alleged had occurred intentionally.

Once again the sample had to be aborted because of the risk of the presence of mouth alcohol. [ 21 ] The Crown alleged more improper conduct on Incident 21. He was told to perform a tight seal, keep his hands on the counter and then blow until he was told to stop. Instead he took short quick bursts with his mouth open, biting on the mouthpiece. [ 22 ] The alleged problems continued in Incident 22. Once more it was explained he needed a tight fit with his lips, hands on the counter and blow until he was told to stop.

Again he was biting down on the mouthpiece and the sample failed. [ 23 ] Another peace officer had used his own mouthpiece to demonstrate for the accused the proper procedure, to no avail. Once again the machined “timed out” and he was charged with refusal. In that regard, it was not apparent that he had any medical issues. As well his actions in court for the trial, were markedly different than the manner in which he had conducted himself at the time. [ 24 ] In cross-examination Constable Pozniak confirmed that there had been a skirmish at the Olympia Restaurant which apparently had involved the accused.

He noted the accused had bruises on his face and eyes. He also agreed that the accused appeared to have a mark on his right hip in one of the video disc shots. He also noticed in one of the shots the accused had been rubbing his eyes, but assumed that was from being impaired by alcohol. [ 25 ] Regardless he had not complained to the officers of any injuries, although obviously he did have at least some. He had not asked the accused if he was able to physically close his mouth around the mouthpiece. The officer was not aware of the presence of any blood around the outside of his mouth nor any injury inside of it.

He agreed that in one of the photos the accused had suffered from swelling and redness to his left eye, but again the accused had not claimed he had any problem. However he could not recall if the accused had claimed he was having any issue using the mouthpiece because of an injury, and he should have been able to form his lips around it. [ 26 ] He was also of the view that the burp from the accused had been intentional and did not know if it was a result of a kick to the ribs. [ 27 ] He agreed as well that in Incident 22 the accused appears to be speaking to the officer while attempting to provide the sample.

However he could not recall what was said and the recording system has no audio. Constable Cameron Graves [ 28 ] Constable Graves of the Saskatoon Police Service was on duty when the accused was observed going westbound on 8 th Street in Saskatoon. He estimated his speed to be 90 kph in a 60 kph zone. He was changing lanes abruptly and not signalling. Therefore

lights and siren were activated. The officer spoke to the accused who was the operator. He had an expired British Columbia driver’s license and his vehicle was not properly registered. He was aware of the distinct smell of alcohol from his mouth, and some slurring of speech. He was requested to come to the police vehicle.

On the way to it the accused was swaying from side to side with some balance issues as well as leaning on the police vehicle for support. [ 29 ] He believed there were reasonable grounds to conclude the accused had been operating a motor vehicle while impaired by alcohol and made a demand for a sample of his breath in the Intoxilyzer. The grounds on which he had relied upon were erratic driving, the accused’s agitated mood, including reference words to the effect “I pay your fucking taxes”, the smell of alcohol, slurring of some words, as well as swaying and balance problems.

The accused appeared to comprehend what he was being told in regard to the arrest, rights to Charter , police warning, and the Intoxilyzer demand. [ 30 ] It was also apparent that the accused had suffered some minor injuries to his face, consistent with a scuffle. He had not complained of any problem and appeared physically able to provide the breath sample. He showed no signs of concussion, and had not asked for medical aid. He had appeared to be very intense and aggressive in his demeanour with the officer, which may have been from his scuffle in the bar or impairment.

His appearance in court for the trial was noted by the officer to be more appropriate and acceptable. [ 31 ] In cross-examination Constable Graves advised that there were some facial injuries consistent with a fight as well as a picture of a bruise on his hip. Regardless he had not complained to the officer at the time. As well the officer had agreed he was not an expert in diagnosing concussion symptoms. Regarding speed, he is an experienced laser operator and normally can estimate speed within five kph. The accused was going considerably over the speed limit.

Constable James Bonynge [ 32 ] Constable Bonynge was also on patrol. After the accused’s motor vehicle had been seen, they made a u-turn with theirs and followed for roughly eight blocks before it was stopped. The motor vehicle of the accused had been operating at a high rate of speed but otherwise his driving was normal. They activated the emergency flashers and made a traffic stop. [ 33 ] Constable Graves concluded that the circumstances involved an impaired driver investigation so they proceeded along that basis.

In the early stages of the investigation Constable Bonynge noted in the accused red bloodshot eyes and a strong smell of alcohol from his breath. Initially he was belligerent and swearing but on route to the Police Services Building he calmed down somewhat. [ 34 ] Once they arrived at the Police Services Building the officer prepared the Impaired Driver’s Check Sheet. He noted on it that the accused had a cut under his left eye from an altercation. Again he noted bloodshot and glassy eyes, strong smell of alcohol from his mouth and poor coordination. His balance also appeared to be very poor.

He would sway and use the counter for support. He was slow in his personal actions, belligerent and argumentative. He would slur his words. He had problems with comprehension and would repeat words. His quality of speech was good but he had dry, smacking lips. [ 35 ] As part of the Impaired Driver’s Check Sheet the accused indicated that he had no medical problems and was willing to provide the breath sample.

His alcohol consumption had been three and one-half drinks of white wine. [ 36 ] The officer was also present for much of the accused’s encounter with Constable Pozniak in the effort to obtain two suitable samples. He described his recall of those circumstances as to what he had observed although he is not a qualified technician. [ 37 ] In the course of his encounter with the accused as well, the accused claimed he could not blow because he had been in a fight. However his injury was to his left eye rather than the mouth.

The blood on his face seemed to be from his eye rather than his mouth. [ 38 ] In cross-examination Constable Bonynge agreed he was not an expert in diagnosing alcohol symptoms and head trauma. As well a cut to the accused’s left eye had occurred in the previous hour, in his estimation. However he had not complained about any

problem and any injury seemed to be to the eye rather than to the accused’s mouth. Also, while he was of the view balance issues for the accused were from impairment, he could not say for certain that some were not from head concussion. [ 39 ] In re-examination the officer indicated that the booking sheet which had been filled out for the accused indicated as well that the accused had not stated any medical issues that needed attention. That was not consistent with this officer’s observation that he had noted the said injury in the Impaired Driver’s Information Sheet.

EVIDENCE FOR THE DEFENCE The Accused [ 40 ] The accused is aged thirty-two and resides in Calgary. Just prior to this matter he had been laid off his job with an oil drilling company. He ended up in Saskatoon and was intending to be at work again at a job site near North Battleford. He had contacted his sister in Vancouver to send some money. As usual, his intention was to spend the night in his GMC Jimmy until he could get relocated at the next job site. He was not very familiar with Saskatoon.

His British Columbia driver’s license had expired and he had switched plates on the Jimmy. [ 41 ] He had not eaten for roughly twenty-four hours so once there were funds from his sister, his plan was to go to a restaurant and socialize. In the meantime he had purchased a bottle of wine from an off-sale which he finished himself as he rested in his Jimmy. After it was done, the accused made his way to the Olympia Restaurant to eat and drink. He was hoping to play pool, but was by himself. He visited with some others during the course of the evening and drank beer.

Before departing he consumed three 20 ounce pints of beer. He was in good spirits, talking to people and enjoying himself. He was feeling some of the effects of his beer consumption and the earlier wine. [ 42 ] At the end of the evening he went outside for a cigarette and was attacked by three men he had been socializing with earlier. One of them pushed him over another of them who was crouched behind. His head hit the concrete.

All three of his assailants continued kicking and punching while holding his feet with many blows to his head and torso as well as his legs. [ 43 ] When the accused was able to escape this attack he ran to his motor vehicle and drove away from the immediate area. He had just gotten the beating of his life in a strange city and was not very familiar with the layout in Saskatoon. [ 44 ] It was while he was making his escape that the accused was stopped by the police. The accused told Constable Graves he had just gotten well beaten up but the police did nothing to assist or seek out his assailants.

He felt completely disoriented as he drove but was looking for a safe place to stop. [ 45 ] Regarding the effects of alcohol consumption the accused advised that it might have slowed his reaction slightly but did not feel inebriated because he was in survival mode. At first, he was glad to see the police. [ 46 ] He also had intended to co-operate with providing the breath sample although he had wincing pain in his head and mouth. He could taste blood. When he tried to provide the sample he had to hold the mouthpiece to the right of his mouth because his jaw was swollen.

He told them his mouth was in a lot pain and could not properly seal. As such he could not provide a second sample because his mouth would not conform. The one sample he was able to provide with help from the peace officer because he had his hand on the accused’s mouth. However he was told by the peace officer not to put his hand by his mouth for the second sample and could not get any help for it. Regardless, the accused had no intention to refuse the second breath sample. [ 47 ] In cross-examination, the accused confirmed he had arrived at the Olympia Restaurant at 11:00 p.m. or 11:30 p.m.

He had drunk the wine roughly forty-five minutes before going there and had had the three 20 ounce pints of beer. He had failed to mention the three beer to the police. As well, no medical evidence was being called regarding the would be effects of concussion. Despite that, the accused disputed any suggestion that he was not having difficulty closing his mouth around the mouthpiece which caused pain. He was

able to eat his breakfast sandwich as it appeared on the video clip by chewing, but not closing his lips on it. He had not eaten for a wholeday and he was famished. He had pain in his jaw on both sides and was uncomfortable. He had blood in his mouth but was still able todrink his coffee in the morning before release. In regard to the effects of his alcohol consumption, he denied that alcohol was the causeof his staggering but he was not as surefooted as if sober. He had been drinking over five hours, and agreed he was not as surefooted ashe normally would be.

He was in a strange city and wanted to find somewhere safe to stop and sleep. He had not planned to drive andagreed he may have been over .08 when suddenly he had to drive away from the restaurant. As well he agreed that he could not tellwhether his driving problems were caused by alcohol, or some other cause, such as the assault. [48] In re-examination as a possible explanation for the red, bloodshot eyes, the accused confirmed he had put Visine in his eyesfor his contact lenses.

ANALYSIS Is the evidence for the Crown sufficiently credible to prove beyond a reasonable doubt impaired operation contrary to s. 253(1)(

a) of theCriminal Code? [49] The Court notes s. 254 of the Criminal Code which provides, in part, as follows: 254(3) If a peace officer has reasonable grounds to believe that a person is committing, or at any time within the preceding three hourshas committed, an offence under

section 253 as a result of the consumption of alcohol, the peace officer may, by demand made as soonas 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 the concentration, ifany, of alcohol in the person’s blood, or . . .

(5) Every one commits an offence who, without reasonable excuse, fails or refuses to comply with a demand made under this section. [50] As noted, in general the burden is on the Crown to prove the constituent elements of the offence beyond a reasonable doubtwith credible evidence, and the accused is presumed innocent until proven guilty. In assessing credibility, the Court is guided by theprinciples restated in R. v. McKenzie (P.N.) (1996), (SK CA), 141 Sask. R. 221 (Sask. C.A.) (from R. v.

Rose (A.)(1992), (BC CA), 20 B.C.A.C. 7 (B.C.C.A.)), para. 4: First, if you believe the accused, obviously you must acquit; Secondly, if after a careful consideration of all of the evidence, you are unable to decide whom to believe, you must acquit; Thirdly, if you do not believe the evidence of the accused but you are left in reasonable doubt by it, you must acquit; Fourthly, even if you are not left in doubt by the evidence of the accused, you must ask yourself whether, on the basis of the evidencewhich you do accept, you are convinced beyond a reasonable doubt by that evidence of the guilt of the accused. [51] The determination of credibility does not involve the Court opting for one version of events or the other.

Rather, the Crownmust prove that its evidence is credible, and there is no onus on the accused whatsoever in that respect. Even if the Court prefers theevidence of the Crown, it must still consider whether the evidence for the defence raises a reasonable doubt. Therefore, credibility of thematerial witnesses needs to be considered, in that context.

[52] The general principles for an impaired analysis were set forth by myself in R. v. Edwards (RH) (2006), Sask. R. 234commencing at para. 19: [19] I had considered this matter in R. v. Kutsenko (W.M.) (2001), 22 M.V.R. (4th) 42, the material portion of which began at para. 39: In regard to this issue, in R. v. Arevalo (B.) (2001), (SK PC), 205 Sask. R. 315, (Sask. Prov. Ct.), I noted the following,commencing at para. 8: [8] Therefore, the evidence of impairment which is alleged by the Crown must be considered in the context of the principles contained in R. v.

Stellato (1994), (SCC), 31 C.R. (4th) 60, in which the Supreme Court of Canada approved the following, from the Ontario Court of Appeal reasons, 18 C.R. (4th) 127, at para. 14: In all criminal cases the trial judge must be satisfied as to the accused’s guilt beyond a reasonable doubt before conviction can beregistered. Accordingly, before convicting an accused of impaired driving, the trial judge must be satisfied that the accused’s ability tooperate a motor vehicle was impaired by alcohol or a drug.

If the evidence of impairment is so frail as to leave the trial judge with areasonable doubt as to impairment, the accused must be acquitted. If the evidence of impairment establishes any degree of impairmentranging from slight to great, the offence has been made out. In the process of making this analysis, the Ontario Court of Appeal judgment made reference to the so-called “classic” signs ofimpairment, namely: erratic driving, strong odour of alcoholic beverage, glassy and bloodshot eyes, slurred speech and unsteadiness onone’s feet.

Obviously this was not intended to be an all-encompassing list, and also, its application will very much depend on thecircumstances in the case. 40 Further, in R. v. Landes (1997), (SK KB), 161 Sask. R. 305 (Sask. Q.B., Klebuc J.), the court referred to Stellato(supra) and made the following observations, commencing at para. 16: [16] An opinion as to impairment, be it by the trial judge or a nonexpert, must meet an objective standard of “an ordinary citizen” or a“reasonable person” in order to avoid the uncertainties associated with subjective standards, particularly when based on inferences.

Tothat end a list of tests and observations has been developed for use by peace officers and courts in determining whether an accused’smental faculties and physical motor skills were impaired by alcohol to the degree of impairing the accused’s ability to drive a motorvehicle.

Those observations and tests include: (1) evidence of improper or abnormal driving by the accused; (2) presence of bloodshot orwatery eyes; (3) presence of a flushed face; (4) odour of an alcohol beverage; (5) slurred speech; (6) lack of coordination and inability toperform physical tests; (7) lack of comprehension; and (8) inappropriate behaviour. [17] In my view, a trial judge must carefully review all of the reported tests and observations which inferentially support or negate anyimpairment of the accused’s mental and physical capabilities, and then be satisfied beyond a reasonable doubt that the reasonableinferences to be drawn therefrom establish that the accused’s ability was impaired to the degree prescribed by ss. 253 and 255 of theCriminal Code.

A piecemeal approach supporting or negating impairment is not permissible. See R. v. Hall at p. 66. (R. v. Hall (1994), (SK CA), 125 Sask. R. 62). . . . [19] Manner of driving - It is well-established that erratic driving may evidence impairment of the driver’s mental faculties or physicalcapability, or both, to drive a motor vehicle due to the effects of alcohol. However, before any driving may be classified as “erratic”, itmust be referable, in the context of all of the evidence, to the impairment of the driver’s skills by alcohol and not to another cause, e.g.,mere negligence. Cst.

Briant testified people run stop signs when they are sober and when they do, accidents often occur. A similarobservation may be concerning the quick turn and loss of control. ...

41 The indicators of impairment set forth in Stellato (supra) and Landes (supra) are not intended to be exhaustive. However, they dooffer some guidance, and they should be considered in the context of the evidence herein of the alleged impairment of the accused. [20] Also, in R. v. Landes (T.) (1997), (SK KB), 161 Sask. R. 305 (Q.B.), the court stated as follows in regard to theodour of alcohol, at para. 21: [21] Odour of “Alcohol” - Alcohol itself is odourless unless the odour detected arises from the nonalcoholic content of the drinkconsumed. Alan D.

Gold, as he then was, in Defending Drinking and Driving Cases (Toronto: Carswell, 1995), made the followingobservations: It is generally recognized that odour has no relationship to amount consumed, and is probative of little beyond the fact of someconsumption of an alcoholic beverage. A strong odour tends to show recent consumption. Ironically, alcohol itself is odourless and theodour arises from the nonalcoholic content of the drink consumed.

Hence, the strong smell of alcohol on the appellant’s breath is only probative of the appellant having recently consumed a beverageknown to contain alcohol. [21] Therefore, the signs of impairment which are alleged herein need to be weighed and considered in that context. [53] In any event, the accused has suggested that the Crown cannot prove the signs of impairment alleged because they could havebeen from the serious assault he allegedly had suffered, rather than from the consumption of alcohol. [54] However, reference was made by the Crown to the judgment in R. v.

Pelletier (1989), (SK KB), 51 C.C.C.(3d) 161 (Sask. Q.B. Batten J., as she was then). The Court there appeared to conclude that impairment from any other source as well asthe consumption of alcohol is sufficient to prove impairment beyond a reasonable doubt. The Court noted as follows at p. 163: The trial judge stated: I appreciate, on the evidence, that there is a possibility that his ability to drive was partly impaired as well by fatigue. There may havebeen other operative factors . . . there was probably a combination of factors operative here . . .

Clearly the trial judge found unqualified “impairment” - the adjective “partial” applies to the cause not the condition, and is used to showan appreciation of the possibility that the condition of impairment by alcohol resulted in part because of the pre-existing condition offatigue and perhaps lack of sufficient sleep (although there was no evidence on this point). [55] Certainly it may well be that at least some of the signs of impairment were from the assault which the accused allegedlysuffered. However, that was only a contributing factor along with the consumption of alcohol.

It is reasonable to infer that theobservations made of the signs of impairment was a combination of factors but that it did include alcohol consumption to at least someextent. That is sufficient for these purposes to prove impaired operation beyond a reasonable doubt. Likewise, of course, the accusedhas confirmed consumption of a significant amount of alcohol at the material time. He agreed in his testimony that drinking was a factorin the signs of impairment but the degree was not known. CONCLUSION

[ 56 ] Applying the principles in Stellato and Landes , supra , the evidence is sufficiently credible to prove beyond a reasonable doubt the constituent elements of impaired operation, contrary to s. 253(1) (

b) of the Criminal Code . The accused should receive the benefit of the doubt on the driving evidence because he was attempting to escape to safety when observed by the police. Beyond that there was ample evidence of at least some of the factors noted by Constable Bonynge, including bloodshot and glassy eyes, a strong smell of alcohol, balance and co-ordination issues, slurred words, slow in his personal actions, was belligerent and argumentative, had problems in comprehension and would repeat his words.

The accused is therefore guilty on count #1 of impaired operation. [ 57 ] Therefore the Court orders a conditional stay of proceedings on count #2, the charge of refusal, contrary to s. 254(5) of the Criminal Code . That stay of proceedings will become absolute in the event that no appeal is taken. ______________________ P.S. Kolenick, J