R. v. Soeur, 2017 ONCJ 531

ONTARIO COURT OF JUSTICE CITATION: R. v. Soeur, 2017 ONCJ 531 DATE: 2017·06·20 INFORMATION 16-06568 BETWEEN: HER MAJESTY THE QUEEN — AND — TEVY SOEUR JUDGMENT Evidence Heard: June 19, 20 th , 2017 Delivered: June 20 th , 2017. Mr. Vanden Ende .................................................................................... counsel for the Crown Mr. Laikie .......................................................................................... counsel for the defendant KENKEL J.: Introduction [ 1 ] Ms. Soeur hit a car stopped for a red light at an intersection.

The police were called and the other driver noted that Ms. Soeur looked unwell, possibly drunk. Two officers investigated and Ms. Soeur was arrested. At the hospital she provided two breath test samples into an approved instrument resulting in readings of 287 and 262mgs/100ml. [ 2 ] With respect to the Over 80 count the defence notes that the breath tests were conducted outside the two hours and therefore the Crown cannot rely upon the statutory presumptions relating those readings to the time of driving. The Crown did not call toxicology evidence in this case but Mr.

Vanden Ende submits that the court can take judicial notice of the calculation of the absorption and elimination of alcohol in this case as the very high readings could not result in a blood alcohol concentration (BAC) under 80mgs at the time of operation. [ 3 ] On the Impaired Operation count, the Crown submits that there’s ample evidence of impairment in the ability to drive due to the accused’s consumption of alcohol. The defence notes the fact of a collision and the accused’s emotional reaction and submits that the impaired charge has not been proven beyond a reasonable doubt.

Impaired Operation [ 4 ] I agree with the Crown that there’s ample evidence of impairment in the physical and mental faculties necessary for the accused to safely drive including: • The circumstances of the collision for no apparent external cause including the odd angle at which she struck the stopped car • Immediately after the collision she was “not walking properly” and swaying as demonstrated by the other driver at trial. Her movements were slow. She had to put her hand on a car to steady herself.

The minor scraping contact between the cars as described in evidence could not reasonably have led to any disorientation or injury on the part of the accused and there’s no evidence she suffered

from any such difficulty as a result of the collision. • The accused’s demeanor immediately after the accident was unusual – she had a strong emotional reaction to the minor collision and was crying then would switch to laughing for no apparent reason. This observation by the other driver is consistent with the accused’s demeanor throughout as shown in the evidence of PC Caringi, PC Brodhagen and the in-car video. She was unable to remember her phone number. She begged the officer repeatedly to forgive her.

Making every allowance for language difficulties, the accused was plainly disoriented, unable to focus with constantly changing moods unrelated to any external circumstance. • The odour of alcohol was present throughout even to the time of release some 5 hours later. • The accused was literally falling down drunk. She was unable to exit her car without the officer’s assistance. She was “heavily unsteady” on her feet thereafter with no apparent external cause.

PC Brodhagen who was closer to her during the search noted that even in that fixed position she swayed from side to side and was unable to remain still and balanced. Constable Caringi held her right arm to help her get back to his cruiser. In the cruiser she was unable to remain upright and during transportation fell over on a slow curve onto the 407 highway.

She was non-responsive to the officers for a time afterwards despite being conscious and there was no evidence of any injury that could account for her condition. [ 5 ] The whole of the evidence heard at trial reasonably leads to only one conclusion – that the accused was highly intoxicated due to alcohol consumption and her ability to operate her vehicle safely was impaired as alleged. The fact that the other driver who first saw Ms. Soeur expressed some uncertainty about whether she was drunk or suffered from some other condition is reasonably explained by her limited contact with Ms. Soeur.

I can find no evidence that reasonably could leave a doubt on this count. Over 80 [ 6 ] Some judges of this court have taken judicial notice of aspects of toxicology evidence in appropriate cases, some have declined to do so. I need not express an opinion in that regard generally as I agree with the defence that in this particular case it is not appropriate to do so. Conclusion [ 7 ] I find that the Crown has proved count 1 beyond a reasonable doubt. They have failed to prove count 2 and that charge is dismissed. Delivered: June 20, 2017 Justice Joseph F. Kenkel