Her Majesty the Queen - v. -, 2016 SKPC 162

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2016 SKPC 162 Date: December 01, 2016 Information: 35708920 Location: Saskatoon _____________________________________________________________________________ Between: Her Majesty the Queen - and - Aamer Toma Appearing: Ms. T. Rock For the Crown Mr. A. Mason For the Accused JUDGMENT D.C. SCOTT , J Introduction [ 1 ] The accused Aamer Toma is charged that on May 9, 2016 he had the care or control of a motor vehicle: 1) while his ability to operate a motor vehicle was impaired by alcohol contrary to section 253(1) (

a) of the Criminal Code ; and

2) while the concentration of alcohol in his blood exceeded the legal limit, contrary to section 253(1) (

b) of the Criminal Code . [ 2 ] The Crown alleges Aamer Toma had the care or control of his vehicle while impaired by alcohol and while over .08 after he drove into a slough, requiring the assistance of a tow truck. Alternatively, the Crown alleges Mr.

Toma’s admission that he drove into the ditch amounted to proof of having had care or control of his vehicle. [ 3 ] Counsel for the accused argues the Crown has failed to prove the accused had the care or control of his vehicle within two hours prior to taking the first breath sample, thereby precluding the Crown from relying on the Certificate of Qualified Technician to establish the accused’s blood alcohol level.

Further, it is the position of the defence that the Crown has failed to prove the accused’s ability to operate a motor vehicle was impaired by alcohol. [ 4 ] At the trial, the Crown called Constables Mikhaila Bird and Lee Conrad, as well as a civilian witness Andrew McPhee. A video from the patrol vehicle was also introduced by the Crown. The accused, Mr. Toma, testified on his own behalf.

Background Andrew McPhee [ 5 ] Andrew McPhee, a tow-truck operator, was dispatched to a T-intersection at the 8 th Street extension of McOrmand Road in Saskatoon on May 9, 2016, arriving at that location at approximately 4:00 a.m. The driver, who referred to himself as “John”, had made numerous calls to the towing company beginning at approximately 3:30 a.m. As it turned out, the caller was Aamer Toma, the accused. The towing company dispatch notified the police and Mr. McPhee was sent to the scene but was told to stall until the police arrived. [ 6 ] Mr. McPhee found Mr.

Toma in the driver’s seat of his vehicle, which was submerged in approximately three feet of slough water. The water was waist-high on Mr. McPhee and reached the bottom of the vehicle’s door such that the water would have entered the vehicle had Mr. Toma opened the door. Mr. McPhee described Mr. Toma as being trapped inside the vehicle. [ 7 ] According to Mr. McPhee, the engine of the vehicle was running and the lights were illuminated. He directed the accused to put the vehicle in neutral and to straighten the steering wheel. Mr.

McPhee could only reach the ball hitch on the accused’s truck, because of the water depth, so he wrapped a chain around the hitch on the vehicle and attached a line to the chain. Mr. McPhee pulled the accused’s vehicle approximately fifteen to twenty feet out of the slough and onto the incline of the ditch. The ditch was muddy but not full of water. [ 8 ] By the time the police arrived, Mr. McPhee had already pulled the truck onto the ditch’s incline. Mr. Toma remained in his vehicle, even though he would have been able to exit. To Mr.

McPhee’s knowledge, the vehicle’s engine continued running and was turned off at 4:30 a.m. While the police were still present, Mr. McPhee pulled the accused’s vehicle an additional seventy feet out of the ditch onto the road and scooped the tires, to prepare for towing. According to Mr. McPhee, the vehicle was operable. [ 9 ] Mr. McPhee testified that at the time he arrived at the scene, it was dark outside, overcast and drizzling and there was no lighting.

A reflective stop sign governs traffic at the T-intersection, and it appeared to him that the accused’s vehicle went through the stop sign, across the road and into the slough. [ 10 ] Mr. Toma provided Mr. McPhee with his address, which was approximately five kilometres from their location in the ditch. He stated that had the police not arrived he would have taken Mr. Toma home.

Constable Mikhaila Bird [ 11 ] Constable Bird testified that on May 9, 2016, she and Constable Conrad were on patrol in the east division of Saskatoon, when they were dispatched to 8 th Street and McOrmand Road, after receiving information from Astro Towing. According to Constable Bird, they arrived at the scene at 4:27 a.m. where they found a grey Dodge Ram truck in the ditch facing south. A tow truck was hooked up to the Dodge Ram approximately three metres from the slough. [ 12 ] The constable found the accused Mr. Toma in the driver’s seat. He was not wearing his seatbelt when she approached the vehicle.

She did not observe whether the vehicle’s engine was running and did not recall the vehicle’s exterior lights being illuminated, but no lights were on inside the vehicle. [ 13 ] Mr. Toma informed the officer that he was going home and as he approached the intersection it was dark and he missed the turn. When asked, he told the officer he had consumed two glasses of wine and that his last drink was approximately one to one and one- half hours prior. He told her he had been waiting for the tow truck for approximately one and one-half to two hours.

It should be noted that no objection was made by the defence with respect to the admissibility of Mr. Toma’s conversation with the officer and voluntariness was admitted. [ 14 ] Constable Bird testified that based upon the accident and Mr. Toma’s admission that he had been drinking, she asked him to accompany her to the patrol vehicle and an ASD demand was made. On his second attempt, Mr. Toma provided an adequate sample, producing a fail result. At 4:48 a.m., Mr. Toma was arrested for care or control of a motor vehicle, read his Charter rights and right to counsel.

A breath demand was also made. [ 15 ] The officer observed Mr. Toma had red, bloodshot eyes and detected the odour of beverage alcohol on his breath once he was in the patrol vehicle. Mr. Toma became uncooperative. A video operated from the front window dash of the patrol vehicle confirmed that Mr. Toma was argumentative and repeatedly interrupted the officers, asking why they were present. Constable Bird acknowledged she conducted no tests to determine if alcohol had affected his coordination. [ 16 ] The officers transported Mr. Toma to the police station, arriving at detention at 5:09 a.m. Mr.

Toma was booked into detention, placed in a holding cell and the observation period began. According to the Certificate, the first reading taken at 0540 hours was 140 and the second taken at 0623 hours was 130. Constable Lee Conrad [ 17 ] Constable Conrad confirmed Constable Bird’s testimony. In addition, he testified that at the time, a gravel grid road led to the T-intersection, and although it was raining, the road had not deteriorated.

He also noted the trailer storage lot at the northeast corner had sufficient lighting to illuminate the area and a well-marked stop sign governed traffic at the T-intersection. [ 18 ] The officer approached Mr. Toma’s vehicle, which was in the ditch, on the passenger side and observed Mr. Toma in the driver’s seat. The keys were in the ignition, the interior lights illuminated and the engine was running. He later retrieved the keys for the tow truck operator. [ 19 ] In the patrol vehicle, Constable Conrad observed the accused had bloodshot eyes and the strong smell of alcohol emanated from the back seat where Mr.

Toma was seated. Mr. Toma repeated comments and questions to the officers and was generally uncooperative and somewhat belligerent. At the police station, the officer observed further signs of impairment, including red watery, blood shot eyes. He noted that Mr. Toma continued to ignore Constable Bird’s directions. Aamer Toma [ 20 ] Aamer Toma testified on his own behalf. He stated that on May 9, 2016, he had attended a function at his church, where food

and alcohol were served. He consumed two glasses of wine and a couple of shots of rye between 8:30 p.m. and 12:30 a.m. [ 21 ] The event ended between 1:30 a.m. and 1:45 a.m. He dropped off his friend and proceeded to drive home. He took a road that was unfamiliar to him. The road was curved and in poor condition, two kilometres of which were under construction. He passed equipment and did not see the stop sign until he was very close to the intersection. He was unable to control his vehicle and drove across the T-intersection and into the ditch on the other side, coming to a stop in a slough.

There was a small light to the left approximately fifty metres away which did not provide sufficient illumination for him to see the sign. He testified he was driving approximately 40 kilometres per hour at the time. [ 22 ] Once his vehicle came to rest in the water, he became frightened and panicked. It was dark and he had no way of knowing how deep the water was. He could not get out of the vehicle because of the water’s depth. Mr. Toma had only a quarter tank of gasoline.

He turned off the vehicle’s engine, because he didn’t want the vehicle to be damaged. [ 23 ] He estimated he drove into the slough at 2:15 a.m. but waited one hour before calling for help. He called 4-1-1 to get a tow truck number and then called 9-1-1 and obtained a phone number from the dispatch operator. He reached the towing company and was told a truck would be there in approximately ten minutes, but it was not, so he called again. When he called the tow truck company, he provided a different name, because when he uses his real name, “Aamer”, he is “asked questions”.

He testified he called the towing company four times. [ 24 ] Mr. Toma’s explanation for the gap in time between his driving into the slough and calling for help was that he thought he ought to be able to figure out how to solve the problem himself. Yet, he panicked, was afraid his vehicle would become further submerged and believed his life was in danger. [ 25 ] The tow truck operator arrived and directed him to open the door but he was unable to do so. He turned the key to open the window, which was his only choice.

He asked the tow truck operator to pull his car out and to drive him home. [ 26 ] The tow truck operator hooked a chain to his vehicle and directed Mr. Toma to use the steering wheel to assist. He stated he turned on the engine, once his vehicle was pulled from the slough. [ 27 ] Mr. Toma testified he did not intend to drive or set the vehicle in motion. He wanted his vehicle pulled from the water and expected it would not be in a driveable condition. He wanted the tow truck operator to take him and his vehicle to his home. That is why he called for help. [ 28 ] At trial, Mr.

Toma stated he felt remorseful for being belligerent to the officer; he explained that sometimes his personality changes. He attributed his behaviour to being tired and frustrated. He had called for help and instead he was arrested. Issues to be decided 1. Has the evidence established beyond a reasonable doubt that Mr. Toma had the care or control of his vehicle? 2. Can the Crown rely on the Certificate of Qualified Technician to establish the accused ’ s blood alcohol level at the time of the offence? 3. Was the accused ’ s ability to operate a motor vehicle impaired by alcohol?

Discussion [ 29 ]

Section 253 of the Criminal Code establishes the offences with which Mr. Toma is charged and provides in part as follows: 253

(1) Every one commits an offence who...has the care or control of a motor vehicle...whether it is in motion or not, (

a) while the person ’ s ability to operate the vehicle...is impaired by alcohol...; or (

b) having consumed alcohol in such a quantity that the concentration in the person ’ s blood exceeds eighty milligrams of alcohol in one hundred millilitres of blood. 1. Has the evidence established beyond a reasonable doubt that Mr. Toma had the care or control of his vehicle? [ 30 ] The timing and sequence of events in this case are important. I find the following facts. Mr. Toma testified he drove into the slough at approximately 2:15 a.m. then waited one hour before calling for help even though he was frightened, believing his life was in danger.

Such a fear is understandable, given that his vehicle was stuck in a body of water the depth of which he did not know, during the early morning hours. Yet, instead of making a call immediately, Mr. Toma waited and deliberated for one hour. His testimony on this point either lacks credibility or demonstrates extremely poor judgment at the time. Mr. McPhee confirmed his company received frantic calls from Mr. Toma beginning at 3:30 a.m. I find that at sometime prior to 3:30 a.m., Mr.

Toma drove his vehicle into the slough. [ 31 ] The tow truck arrived at the scene at 4:00 a.m. and shortly thereafter, the operator, Mr. McPhee, wrapped a chain around the ball hitch of Mr. Toma`s vehicle and pulled it from the slough into the ditch. [ 32 ] The officers arrived at 4:30 a.m., by which time Mr. Toma’s vehicle had been removed from the slough and was now situate in the ditch. Both officers confirmed Mr. Toma was in the driver`s seat. I accept Constable Conrad`s testimony that the engine was running and the lights were illuminated.

Constable Bird`s testimony did not conflict with Constable Conrad’s, she simply could not recall whether that was the case. Mr. McPhee estimated the officers had arrived at 4:10 a.m., but this does not conform with their evidence or the time on the patrol car video. Mr. McPhee stated the vehicle was turned off at 4:30 a.m.; whether or not the time is exact, he was clear that it was after the police had arrived. [ 33 ] I accept Mr. McPhee`s testimony that Mr.

Toma did not leave the driver`s seat of his vehicle from the time the tow truck arrived on the scene until the officers asked the accused to accompany them to the patrol car. Presumed care or control [ 34 ] According to section 258(1) (

a) of the Criminal Code , where an accused is found occupying the driver’s seat, he is deemed to have the care or control of the vehicle, and the Crown may rely on the presumption to prove the charge, unless the accused can establish on a balance of probabilities that he did not occupy that seat for the purpose of setting the vehicle in motion. [ 35 ] It is obvious that at the time Mr. Toma drove into the slough, he had the care or control of his vehicle. However, once his vehicle became lodged in the slough, I accept he was no longer in the driver’s seat for the purpose of setting the vehicle in motion. Mr.

McPhee described the water as surpassing the bottom of the vehicle’s doors and the accused as being trapped. The vehicle was not

capable of being set in motion and Mr. Toma’s presence in the driver’s seat was not for that purpose. Mr. Toma’s use of the steeringwheel at that point was only to assist Mr. McPhee in removing the vehicle from the slough. [36] Mr. Toma testified that when his vehicle became stuck he no longer held an intention to drive it further. He called the towingcompany for the purpose of extricating his vehicle from the slough, so that it could be towed and he could be driven home; he testifiedthat he asked Mr. McPhee to do so. Mr. McPhee confirmed Mr.

Toma provided him with his address. [37] I am satisfied on a balance of probabilities that once it became apparent to Mr. Toma that his vehicle was submerged and hecould not remove it himself, he was not in the driver’s seat for the purpose of setting his vehicle in motion and at that time did not intendto drive. He has therefore rebutted the presumption in s. 258(1)(

a) of the Criminal Code. Actual care or control [38] The Court must then consider whether Mr. Toma had the actual care or control of his vehicle. His stated lack of anintention to drive is not a defence and is only relevant to rebutting the presumption in section 258(1)(a): R v Boudreault, 2012 SCC 56, [2012] 3 SCR 157; [2012] SCJ No 56 at para 54, [Boudreault]; R v O’Neill, 2016 ONCA 307 at para 10. [39] According to Boudreault, the essential elements of the offence of ‘care or control’ in section 253(1) of the Criminal Code are: 1. An intentional course of conduct associated with a motor vehicle; 2.

By a person whose ability to drive is impaired or whose blood alcohol level exceeds the legal limit; 3. In circumstances that create a realistic risk, as opposed to a remote possibility, or danger to persons or property: paras 9 and 33. [40] The risk of danger must be realistic, rather than negligible or remote, and represents a low threshold for the Crown toovercome. An individual found inebriated, behind the wheel of a vehicle with a present ability to drive will, and should, almostinvariably be convicted, however a conviction in these circumstances will not be inevitable.

A conviction would not be appropriateabsent a realistic risk of danger in the particular circumstances: Boudreault, para 45; R v Poncelet, [2014] SJ 149 (CA). [41] The risk described in Boudreault may arise in at least three ways: First, an inebriated person who initially does not intend todrive may later, while still impaired, change his or her mind and proceed to do so; second, an inebriated person behind the wheel mayunintentionally set the vehicle in motion; and third, through negligence, bad judgment or otherwise, a stationary or inoperable vehiclemay endanger persons or property: para 41.

In the Slough [42] The defence argued that once Mr. Toma’s vehicle had entered the ditch, he could no longer pose a realistic risk of danger. [43] The Court accepts that from the time Mr. Toma’s vehicle entered the slough until its removal by the tow truck operator shortlyafter 4:00 a.m., he posed no realistic risk of danger. The vehicle was stuck and Mr. Toma was trapped inside. His vehicle could not bemoved on its own. Therefore, even had he changed his mind at that point, he would not have been able to drive away.

Similarly, therewas only a remote possibility that he could pose a danger by inadvertently or unintentionally setting the vehicle in motion while still inthe slough. He posed a negligible risk at best. Had his vehicle remained in the slough that might have ended the matter. But, his vehiclewas pulled from the slough to the ditch by Mr. McPhee.

In the Ditch [44] Mr. McPhee towed Mr. Toma’s vehicle fifteen to twenty feet from the slough to the ditch shortly after 4:00 a.m. For thefollowing reasons, I conclude that after the vehicle was towed from the slough there existed a realistic risk of danger that Mr. Tomawould change his mind and drive home or would unintentionally set the vehicle in motion in some other way. [45] Mr. Toma remained in the driver’s seat of an operable vehicle with the engine running between shortly after 4:00 a.m. untilthe police arrived at 4:30 a.m.

There was no indication he showed signs of leaving the vehicle to take a ride from Mr. McPhee, eventhough that was his original intention. [46] Mr. Toma’s vehicle, a truck, was in a ditch, adjacent to a public highway. The ditch was described as muddy, but not water-filled or impassable. [47] Mr. Toma had earlier believed his vehicle was in a “bad position” because of the water, stating that had he been able to driveout of the slough, he would not have needed a tow truck.

This signals he may have decided to drive the vehicle once he learned thevehicle was operable. [48] It is apparent from the patrol car video Mr. Toma disputed that he was impaired and did not understand why the police werepresent. The Courts have recognized that an impaired driver will have a diminished capacity to make safe decisions or may misjudge their level of impairment and drive while their condition poses a risk: R v Coleman, 2012 SKCA 65; R v Pelletier, (2000), 6 MVR (4th)152; [2000] OJ 848 (CA). [49] Much of Mr. Toma’s testimony lacked credibility. If Mr.

Toma is to be believed, he spent one hour partially submerged in aslough without calling for help though he was in fear for his life. His explanation that he took that much time to figure out what to do isunconvincing. Nonetheless, Mr. Toma’s equivocation and uncertainty about his course of action for a considerable length of time, inthese circumstances, leads me to conclude that he was unable to accurately assess his situation or exercise good judgment. [50] There are inconsistencies in the evidence, which suggest Mr. Toma was confused regarding the timing of events.

He testifiedhe drove into the slough at 2:15 a.m. Yet, according to Constable Bird, he told her at 4:00 a.m. that his last drink had been approximatelyone to one and one-half hours earlier, which would have been at approximately 2:30 a.m. to 3:00 a.m. According to his testimony, heconsumed four drinks between 8:30 p.m. and 12:30 a.m., which would have been several hours earlier than the time he indicated to theofficer at the scene. [51] Although the chain was wrapped around the ball hitch, the wheels of the vehicle were not scooped and it was not yet securedfor towing.

That was not done until sometime after the police arrived. There would have been nothing impeding Mr. Toma’s ability todrive away had he decided to do so. Mr. McPhee testified that had the police not arrived, he would have taken the accused home. But,one must assume that would have occurred only if he were asked to do so by Mr. Toma. [52] There was also a realistic risk that Mr. Toma would inadvertently or unintentionally set the vehicle in motion. Notwithstanding that the vehicle was tethered to the tow truck, Mr. Toma was behind the wheel and the engine of the vehicle wasrunning.

There would have been little for Mr. Toma to do in order to put the vehicle in gear and set the vehicle in motion. [53] Each case must be decided on its facts. However, similar cases may be instructive.

The risk of danger was present wherethere was the possibility an accused would drive away after he attempted to extricate his vehicle from the ditch by calling a tow truck: Rv Capone, [2010] OJ 1173; 2010 ONSC 1620; where an accused could have changed his mind and driven off or inadvertently set thevehicle in motion after his vehicle was extricated by a tow truck operator: R v MacMillan, (ON CA), [2005] OJ 1905(CA); where an accused remained in the driver’s seat after she had driven her vehicle off the road, which became lodged on a fence: R vMagagna, (ON CA), [2003] OJ 510 (CA); where an accused drove through a T-intersection and became stuck in snowrendering the vehicle inoperable: R v McBrine, [2005] OTC 237 (SCJ) para 89-92, 95, 97 (aff’d 2007 ONCA 25 , [2007] OJ 142

(CA) para 3-4); and after an accused had driven into a ditch, a tow truck arrived and pulled it out: R v Wilford, [2004] OJ 258 (CA). [54] In conclusion, in the all of the circumstances of the case before me, I find there was a realistic risk of danger that Mr. Tomawould decide to drive his vehicle after it was extricated from the slough or that he would inadvertently set the vehicle in motion. Heremained in the driver’s seat with the engine running. His vehicle was fully operable. It was parked in a ditch alongside a publichighway. Mr.

Toma had demonstrated poor judgment by equivocating for one hour before calling for help. He did not believe he wasimpaired by alcohol. He had earlier missed the stop sign and driven directly through a T-intersection and into a slough. He stated thathad he not been stuck in a slough, he would not have needed to call a tow truck, implying that, but for the slough, he would havecontinued to drive. [55] Mr. McPhee was working in close proximity to the accused’s vehicle and the police officers were out of their patrol carinitiating their investigation. The risk is that Mr.

Toma would change his mind and decide to drive home or set the vehicle in motioninadvertently, thereby causing injury to himself, Mr. McPhee, the police officers or damage to the vehicles. Driving [56] The Crown relied on the case of R v Smith, 2015 SKPC 130 in support of its submission that Mr. Toma can be convicted of‘care or control’ based upon his testimony that he was driving at a time when he was impaired.

The principle is established in the case ofR v Pincemin, 2004 SKCA 33 , 2004 SJ 134 (CA) [Pincemin], wherein the court held that the offence of ‘care or control’ whileimpaired includes the act of driving while impaired. In Pincemin the accused’s admission of prior driving while he was impaired provedthe Crown’s case. Here, the Crown suggests Mr.

Toma’s testimony that he drove into the slough establishes that he had the care orcontrol of his vehicle at a time when he was impaired. [57] Unlike Pincemin, however, the evidence in this case of impairment at the time of driving would not reach the level of proofbeyond a reasonable doubt, in the court’s view. When coupled however with the balance of the evidence of impairment gleaned fromsubsequent observations and conduct of the accused (infra at paras 67 to 69) at the scene, and thereafter, this threshold is achieved. 2.

Can the Crown rely on the Certificate to establish the accused’s blood alcohol level at the time of the offence? [58] The Crown tendered a Certificate of Qualified Technician to establish the accused’s blood alcohol level. [59] Section 258(1)(

c) of the Criminal Code provides that where the first breath sample is taken not later than two hours after theoffence of ‘care or control’ was alleged to have been committed, the Certificate of Qualified Technician is conclusive proof of the bloodalcohol level at the time of the alleged offence. In other words, for the Crown to be able to rely on the Certificate, it must prove beyonda reasonable doubt that the accused had the care or control of the motor vehicle within the two hours prior to the taking of the first breathsample.

The two hour period begins from the last time the accused was in the care or control of his vehicle. [60] The defence argues that Mr. Toma no longer had the care or control of his motor vehicle, once he drove into the slough,sometime at approximately 2:15 a.m, which would be outside the two hour limit. [61] I have concluded that Mr. Toma posed a realistic risk of danger after his vehicle was towed from the slough to the ditch,beginning shortly after 4:00 a.m. The last evidence of Mr. Toma having the care or control of the vehicle was at approximately 4:30a.m., when the police arrived.

Until asked to leave his vehicle, he remained in the driver’s seat in circumstances that posed a risk. [62] The first sample was taken at 5:40 a.m., which was within two hours of the offence as contemplated by section 258(1)(

c) ofthe Code. Therefore, the Crown is able to rely on the Certificate of Qualified Technician to establish his blood alcohol levels at the timeMr. Toma had the care or control of the motor vehicle. The breath sample readings were 140 and 130. [63] All three elements of the offence as set out in Boudreault have been proven. Mr. Toma demonstrated an intentional course of

conduct associated with a motor vehicle by choosing to remain in the vehicle while the engine was running after it was removed from theslough. His blood alcohol level exceeded the legal limit, as established by the Certificate of Qualified Technician. And, thecircumstances created a realistic risk of danger to persons or property. Therefore, I am satisfied beyond a reasonable doubt that Mr. Toma had the care or control of his vehicle between approximately 4:00a.m. and 4:30 a.m., while his blood alcohol level exceeded the legal limit. 3.

Was the accused’s ability to operate a motor vehicle impaired by alcohol? [64] The defence argued there was insufficient evidence of impairment. [65] The evidence with respect to impairment by alcohol is as follows. Mr. Toma missed a well-marked stop sign and drovethrough a T-intersection into a slough. His testimony that he was travelling 40 kilometres per hour lacks credibility. It is inconsistent withhis testimony that he lost control of his vehicle, driving across the road, through a muddy ditch more than seventy feet and into a slough. [66] Mr. Toma attributed the accident to road and weather conditions.

However, Constable Conrad stated the roads did not appearto present a problem, and although it was dark outside, there was some illumination and the stop sign was well-marked and reflective. [67] Mr. Toma delayed for one hour before calling for help, demonstrating a significant lack of judgment, given the circumstances. [68] He was uncharacteristically belligerent, argumentative and repeatedly questioned the officers about the reason for theirpresence at the scene, appearing confused. He seemed to have forgotten or was unable to make the connection that he had earlier called9-1-1. [69] Mr.

Toma also exhibited typical signs of alcohol consumption such as red, bloodshot eyes and his breath smelled of beveragealcohol. He confirmed that he had consumed two glasses of wine and two shots of rye earlier in the evening. [70] I recognize that no coordination tests were administered and the video shows Mr. Toma appeared to walk without difficulty tothe patrol car. [71] Nonetheless, the evidence of Mr. Toma’s driving, his delay in calling for help, his continuing confusion regarding the policepresence and the indicators of alcohol consumption, lead me to conclude that Mr.

Toma’s ability to operate a motor vehicle was impairedby alcohol. Any degree of impairment of the accused’s ability to drive will result in a conviction: R v Stellato, (SCC),[1994] SCJ 51; R v Andrews, 1996 ABCA 23 , [1996] AJ 8 (CA). [72] I am satisfied beyond a reasonable doubt that Mr. Toma had the care or control of his vehicle while impaired by alcohol. Conclusion [73] I find Mr. Toma guilty of having the care or control of a motor vehicle while his blood alcohol level exceeded the legal limit(count 2). I also find Mr.

Toma guilty of having the care or control of a motor vehicle while his ability to operate a motor vehicle wasimpaired by alcohol (count 1). However, I enter a judicial stay of proceedings with regard to count 1 to take effect at the expiry of allappeal periods.

________________________ D.C. Scott, J