Her Majesty the Queen - v. -, 2016 SKPC 147

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2016 SKPC 147 Date: October 31, 2016 Information: 36657786 Location: Saskatoon _____________________________________________________________________________ Between: Her Majesty the Queen - and - Kristopher Trail Appearing: Sandeep Bains For the Crown A. MacRae For the Accused JUDGMENT M.L.

GRAY , J BACKGROUND [ 1 ] The accused was charged on March 11, 2016 with operating a motor vehicle while his ability to do so was impaired by alcohol and with operating a motor vehicle while his blood alcohol content exceeded 80 milligrams of alcohol in 100 millilitres of blood. As an application to exclude evidence was made based on assertions that s. 8 , 9 and 10(

b) of the Canadian Charter of Rights and Freedoms had been violated, the matter proceeded as a blended voir dire and trial. By consent, all admissible evidence from the voir dire will be applied to the trial proper. The accused did not testify on either the voir dire or trial.

[ 2 ] The issues left for the Court to decide on the voir dire are: (

i) Was the accused arbitrarily detained? (ii) Was the written statement of the accused proven to be voluntary? (iii) Was there a violation of s. 10(

b) of the Charter ? and (iv) If a Charter breach has been established, is exclusion of evidence the appropriate remedy? [ 3 ] In relation to the trial, the following questions were left for the Court: (

i) Has the time of driving been proven beyond a reasonable doubt? (ii) Were the breath samples taken as soon as practicable so as to permit the Crown to rely on the presumptions of s. 258(1) (

c) of the Criminal Code ? (iii) Has the offence of driving over the legal limit been proven? and (iv) Has the offence of impaired driving been proven? Voir Dire Issues (

i) Was the accused arbitrarily detained? [ 4 ] Constable Nathan Gawryluk testified on the voir dire that he has been employed with the Saskatoon Police Service since August 2009. He has been in the traffic division since April 2014 and has “extensive experience” with drinking drivers. On March 11, 2016, he was the passenger and Constable Talik was the driver in an unmarked police vehicle. Both officers were in uniform and specifically assigned to enforcing traffic violations. [ 5 ] At 12:33 a.m. he was dispatched to a single motor vehicle accident at an intersection in the City of Saskatoon.

They proceeded immediately to the scene but were delayed by a train. When they arrived at the specified location, he saw no accident so continued southbound until they arrived at the exit from Circle Drive to Valley Road at 12:42 a.m. There, he saw that a truck had collided with a corrugated steel crash cushion which had been pushed in about two feet. The damaged truck was further up Circle Drive with a path of debris leading to it. Paramedics were already at the scene.

There was other traffic on Circle Drive but he did not see anyone lose control of their vehicle, nor did he have any other calls reporting motor vehicle accidents. The roads, although wet, did not affect driving conditions. His partner drove at emergency speeds to the accident scene with full control of the police vehicle. [ 6 ] On arrival, he walked toward the damaged truck, stepping over debris, including a five or six foot drive shaft, in order to speak to the driver. En route, he met a paramedic who advised that the driver had refused medical attention.

[7] About 40 metres from the point of impact, he encountered the accused coming toward him. He was the only person presentin civilian attire and admitted that he was the driver of the truck; he was identified in Court as the driver and sole occupant of thedamaged vehicle. When asked, the accused said he was not injured, although the officer noted a little blood on his finger. He was askedif he wanted medical attention, which he refused. As he spoke to the accused, the officer noticed some symptoms of impairment.

Heasked questions of the accused about what happened and, because of the time of day, he was alive to the question of whether or not theaccused was impaired. The accused was chewing gum and had a “thick tongue” meaning that all his words were consistently slurred. Due to a cold, the officer was not able, and did not smell any beverage alcohol at any time that evening. He asked the accused how manydrinks he had and was told two and one-half beer.

At that point, the officer advised that he was now embarking on an impaired drivinginvestigation and that any information required for the Highway Traffic Board report would be obtained later. He noted that the accusedhad glossy, red, bloodshot eyes, and a thick tongue; he admitted he had consumed alcohol. When asked about where and when he hadhis last drink, the accused said at the Canadian Brewhouse where he had two and one half beer; later, he said he had two pints.

Initially,he said his last drink was about 25 minutes before driving and then said it was about two hours earlier. [8] At 12:48 a.m., the accused was placed under arrest for impaired driving. The officer estimated the time of driving to be12:30 a.m., based on the time of the call for police assistance.

In concluding that the ability of the accused to operate a motor vehiclewas impaired by alcohol Constable Gawryluk took into account: 1. the time and location of the motor vehicle accident and the fact that no other vehicles had lost control; 2. that the accused had red, glossy, bloodshot eyes; 3. that he had a thick tongue and was slurring his words; 4. that the accused admitted that he had been drinking alcohol; and 5. that the accused gave inconsistent statements regarding the time and quantity of his consumption. [9] The accused was searched and placed in the patrol car.

At 12:51 a.m. the demand for breath samples was made and the rightto counsel provided. The accused acknowledged that he understood both. [10] Counsel for the accused submits that the officer had the grounds to support a reasonable suspicion that the accused hadalcohol in his body, but that the articulated grounds were insufficient to found a demand pursuant to s. 254(3) of the Criminal Code andconsequently, the detention of the accused was arbitrary.

Counsel for the Crown relies on R v Shepherd, 2009 SCC 35 and R v Gunn,2012 SKCA 80 to support the validity of the grounds enunciated by the officer and the detention of the accused. [11] The Court is satisfied that at the time of the demand, the arresting officer held an honest, subjective belief that he hadreasonable grounds to demand that the accused provide a sample of his breath for analysis.

The question left for the Court is whetherthere is evidence which objectively supports the officer’s belief or, in other words, are the factors articulated by the arresting officerreliable and capable of supporting his conclusion on an objective analysis. In this analysis, the Court need not be satisfied that theCrown has established a prima facie case (see: Shepherd at para 23) let alone prove the case beyond a reasonable doubt (see: R v Bush,2010 ONCA 554).

The test is whether a reasonable person, standing in the position of the officer would have believed that the ability ofthe accused to operate a vehicle was even slightly impaired by alcohol: see R v Stellato (1993), (ON CA), 78 CCC(3d) 380; R v Bush, 2010 ONCA 554 at para 48; Gunn (supra) at para 9. [12] Counsel for the accused submits that the evidence of the officer is capable only of supporting a reasonable suspicion. Inreviewing R v Chehil, 2013 SCC 49 at para 28 and R v Yates, 2014 SKCA 52 at para 32, it is abundantly clear that the reasonablesuspicion standard is one with a low threshold.

In the case at hand, the uncontradicted evidence is that the accused collided with astationary object, spoke with a thick tongue, consistently slurred his words, had red, bloodshot eyes, gave inconsistent answers toquestions about how much and when he consumed alcohol and refused medical attention in spite of being involved in a significantcollision. This evidence goes well beyond the minimal standard of reasonable suspicion in the view of this Court.

The fact that theaccused performed some tasks well does not invalidate the reasonableness of the conclusion drawn by the officer. [13] After carefully reviewing and considering all of the evidence and able arguments, the Court is satisfied that the evidence doesobjectively support the grounds for a demand pursuant to s. 254(3) of the Criminal Code. The officer turned his mind to the issue of thetime of driving and, based on the time of the call for assistance, concluded that the accident had occurred within the preceding threehours.

The court is also mindful, in accepting this as a reasonable inference, that the roadway in question is a major and well-travelledthoroughfare in the City of Saskatoon. Although the officer could not smell alcohol on the breath of the accused, the Court is satisfiedthat the evidence provided with respect to the nature of the accident, the symptoms displayed by the accused and the admissions made

with respect to alcohol consumption is reliable and, objectively, is capable of supporting the demand that was made. Accordingly, I amsatisfied that both the demand and the detention were justified and lawful and no violation of s. 8 or 9 of the Charter has beendemonstrated. (ii) Was the written statement of the accused proven to be voluntary? [14] Once the first breath test was taken, the officer asked the accused if he would be prepared to provide a written statement. Theaccused was cautioned that he need not say anything and was provided the standard police caution.

He acknowledged this warning byaffixing his signature to it. He then proceeded to write one paragraph in his own hand, the officer wrote the questions that followed withthe accused writing his responses after each inquiry. Crown counsel tendered this written, warned statement taken from the accusedbetween the provision of breath tests as P-1.

Defence counsel submits that the Crown has not established the voluntariness of thestatement as the accused was under the control of the police and had just been compelled to provide a breath sample. [15] The Supreme Court of Canada has dealt with the admissibility of statements in R v White, (SCC), [1999] 2SCR 417 and R v Oickle, 2000 SCC 38. White held that statements compelled by motor vehicle legislation are inadmissible because theyviolate s. 7 of the Charter. The test for compulsion is whether the statements were based on an honest and reasonably held belief thatthey were required by law.

Compulsion amounts to an absence of consent and an accused bears the burden of establishing this on abalance of probabilities. Oickle stands for the proposition that a statement made by an accused to a person in authority is inadmissible ifthere is a reasonable doubt as to its voluntariness. The Crown bears the burden of proof. Factors that must be assessed in determiningwhether a statement is voluntary include: (

i) threats or promises; (ii) oppression; (iii) operating mind and (iv) police trickery. Anotherframework for making this determination is whether the accused had knowledge of what he was saying and that the police could use it to the detriment of the accused. Oickle also addressed the concept of an “atmosphere of oppression” such as depriving an accused personof food, drink, clothing, sleep, or medical attention or using excessive aggression or intimidating questioning techniques for a prolongedperiod: see para 60.

R v Boudreau, (SCC), [1949] SCR 262 established that a police warning prior to a statement beingtaken should be included in assessing whether a statement is voluntary. [16] A number of Ontario cases have considered whether statements given in the interval between breath tests were voluntary. The court in R v McGregor, 2015 ONCJ 692 reviewed a number of those cases and summed up its analysis in this manner at para 48: Further, when I consider all of the circumstances, including the fact that Mr.

McGregor was given the primary common law caution atthe time of his arrest, spoke to duty counsel and then a second criminal defence lawyer. . ., was repeatedly cautioned once inside thebreath room that he was not obligated to say anything or answer any questions, had the same caution repeated again after the formalbreath demand was read to him, was given the secondary common law caution, combined with the exceedingly polite tone that pervadedthe entirety of Constable Leonardo’s interactions with Mr. McGregor inside the breath room, I simply have no reasonable doubt thatwhen Mr.

McGregor spoke inside the breath room he did so voluntarily. [17] In the case at hand, the accused was given the common law caution at the time of his arrest. In addition, at the police station,after indicating that he did not wish to speak to a lawyer, he was given the Prosper warning and advised that he need not say anythinguntil he had a reasonable opportunity to speak to a lawyer. Further, at the commencement of the written statement, he was again giventhe common law caution, which he signed, to signify his understanding. He then wrote answers to questions that were put to him inwriting.

There is no evidence that he was compelled to put pen to paper, that he believed that he was legally obligated to provide thestatement, that the officer made any promises to him or threatened him in any way by word or manner. Under these circumstances, Ihave no hesitation in finding beyond a reasonable doubt that the statement written by the accused was voluntarily given and the productof an operating mind.

For reasons that follow, I am equally satisfied that the accused was given an opportunity to contact counsel andrefused; there was no change in his jeopardy at the time the statement was requested and, therefore, no need to further advise him of hisright to counsel. (iii) Was there a violation of s. 10(

b) of the Charter? [18] The accused was arrested at 12:48 a.m., the demand for breath samples was read at 12:51, followed immediately by his rights

to counsel. When asked if he wanted to call a lawyer, he replied “probably yup.” At the accident scene, he referred to someone named Yarashenko. The officer did not recognize the name nor did he have any knowledge that this was a lawyer. As there was no facility to allow the accused to call counsel from the accident scene, he was transported to the police station where he was booked into the detention centre. Immediately after, at 1:54 a.m., he was asked if he wanted to call a lawyer; he said that he did not.

One minute later, the officer read to him the Prosper warning as the accused had initially said that he “probably” wanted to speak to counsel.

When asked if he understood this warning, the accused replied, “correct” and when asked if he wanted to call a lawyer, he responded, “At this time, I do not want to contact a lawyer.” In cross-examination, the officer acknowledged that if he recognized the name of a lawyer given by an accused, he would facilitate the call and that if he did not recognize the name, he still would give the accused an opportunity to call on arrival at the police station. [ 19 ] Counsel for the accused submits that the officer violated his duty to implement the accused’s right to counsel in that he did not note the name mentioned by the accused, did not make further inquiries of the accused and treated the accused differently than he would have if he had recognized the lawyer’s name. [ 20 ] It is well-established that the right to consult counsel includes the right to consult a lawyer of the accused’s choice, that an accused person must be given a reasonable opportunity to exercise that right in private, and that the police are to refrain from eliciting any evidence until that reasonable opportunity has been given.

Further, the onus falls to the accused to establish, on a balance of probabilities, that his right to counsel has been violated. In the case at hand, the uncontradicted evidence is that the accused was advised of his right to counsel promptly upon his arrest, and gave the equivocal response “probably” as to whether he wanted to speak to a lawyer. At the police station, where there was a facility for a private call, he was asked if he wished to make that call and he refused. The officer very properly then read the Prosper warning and received the unequivocal response that the accused did not want to call a lawyer.

It is incumbent upon the accused to demonstrate reasonable diligence in exercising his right to counsel: see R v Basko 2007 SKCA 111 at para 2 . Here, the accused chose not to adduce any evidence to contradict the clear testimony of the police officer that he unequivocally refused to contact a lawyer.

As has been so aptly stated in R v Thall, 2014 SKQB 412 at para 44 , “The law does not require peace officers to be mind-readers, babysitters, or advocates for detained persons.” The accused is, however, required to be diligent and to clearly communicate his intention to contact a lawyer: see R v McCrimmon , 2010 SCC 36 at para 33 . Therefore, the Court is not satisfied, on the evidence available, that a violation of s. 10(

b) of the Charter has been established. Both the Certificate of Qualified Technician and the warned statement of the accused are, accordingly, admissible. (iv) If a Charter breach has been established, is exclusion of evidence the appropriate remedy? [ 21 ] As no Charter breach has been established, it is not necessary to conduct an analysis pursuant to s. 24(2) . However, in the event that the Court is in error with respect to the existence of a Charter violation, the evidence, nonetheless, would have been admitted. Any violation of s. 8 , 9 or 10(

b) Charter was technical; there was no bad faith on the part of the officer, nor was he negligent in his dealings with the accused in ensuring that his Charter rights were honoured. The conduct of the officer was not such that the Court would feel beholden to disassociate itself as would be the case with flagrant breaches. Second, The Court must consider the impact of the breach on the accused. Here, the accused was dealt with expeditiously and politely; efforts were made to release him from custody as soon as a responsible person could collect him.

Further, the detention of a person for the relatively unobtrusive purpose of providing breath samples does not demean the dignity or invade the privacy of an accused. This type of search clearly has a less serious impact than one that intrudes on an area where a person has a high expectation of privacy: see R v Grant , 2009 SCC 32 at para 78 . The third arm of the analysis requires the Court to assess whether “the truth-seeking function of the criminal trial process would be better served by the admission of the evidence, or by its exclusion”: see Grant at para 79 .

Given the on-going toll that drinking and driving takes on individual lives and on the community, particularly in this province, societal interest in pursuing these prosecutions is high. As the Supreme Court of Canada noted: “. . .where the violation is less egregious and the intrusion is less severe in terms of privacy, bodily integrity and dignity, reliable evidence obtained from the accused’s body may be admitted.”: see Grant at para 111 .

In the circumstances of this case, it is my view that the balancing of these factors would weigh heavily toward admission of the evidence and indeed, that the administration of justice would be diminished by its exclusion. Trial Issues (

i) Has the time of driving been proven beyond a reasonable doubt? [ 22 ] Aaron Wood testified that on the evening in question he went to the airport to pick up his girlfriend from a midnight flight. From the airport, he drove eastbound on Circle Drive and, at the Valley Road exit, he saw a vehicle collide with a metal road divider. He estimated the collision occurred at 12:30 based on the arrival time of his girlfriend’s flight, the time it took to leave the airport and the time that he had been driving prior to seeing the collision. In cross-examination, he agreed with counsel that he left the airport at about

12:30 and would have been at the scene at about 12:40. He indicated however that he was not totally clear about the exact time and thatit was approximate. In re-examination, he was permitted to review the written statement that he had given to the police immediately afterthe incident wherein he noted the time of the accident as 12:30 a.m. This evidence is supported by the evidence that a call was placed tothe police almost immediately after the collision and that the police were dispatched at 12:33 a.m.

The Court is satisfied, beyond areasonable doubt, that the driving occurred at 12:30 a.m., well within three hours of the demand and within two hours of the first breathsample being taken. Further, the Court is prepared to make this finding even without reference to the written, warned statement of theaccused that the accident occurred at 12:30 a.m. (ii) Were the breath samples taken as soon as practicable so as to permit the Crown to rely on the presumption of accuracy? [23] Constable Gawryluk testified that he was dispatched to this collision at 12:33 and arrived upon the accident scene at 12:42a.m.

He spoke to emergency services personnel, and the accused. He formed his grounds and ultimately arrested the accused at 12:48a.m. The accused was then walked several feet back to the patrol car where he was read the demand and advised of his right to counsel at12:51 a.m. The officers left the scene with the accused at 1:22 a.m.

Constable Gawryluk testified that in the 31 minutes between thedemand and the departure for the police station, his partner obtained witness statements from the civilians present, called for a tow truckto deal with the accused’s vehicle which was posing a hazard on the roadway and prepared the necessary paperwork for the tow truckdriver. While he waited in the vehicle with the accused, Constable Gawryluk used a laser device to make some measurements of theaccident scene and had a conversation with his partner as to whether an expert in accident reconstruction should be called to the scene.

Although Sergeant Lynden arrived at about the time of the arrest, it was his duty that night to oversee the deployment of officers asneeded. It was a very busy night and he heard Sergeant Lynden cancel officers who had been dispatched to assist at the accident so thatthey might attend to a domestic complaint; shortly after, the “majority’ of officers on duty were deployed to a homicide.

Nonetheless,once Constable Talic had concluded his tasks, they proceeded directly to the police station, arriving there at 1:34 a.m. [24] Counsel for the accused asserts that the samples could have been taken sooner as the officers should have left the accidentscene once Sergeant Lynden arrived and the delay in taking of samples renders inapplicable the presumption of s. 258(1)(

c) of theCriminal Code. [25] Section 258(1)(

c) of the Criminal Code creates presumptions about the concentration of alcohol in an individual’s blood atthe time of driving and at the time the analyses were made, but before any reliance can be placed on those presumptions, it must beproven that both the demand and the tests were taken as soon as practicable.

In this case, there is no issue with respect to the timelinessof the demand and the Court is satisfied that the demand was made promptly upon the officer forming his reasonable grounds. [26] Justice Joseph Kenkel in his text Impaired Driving in Canada 2012/2013 edition at page 231 cites R v Mudry, 1979 ABCA286 , [1979] AJ No 613 (Alta CA) for the proposition that “As soon as practicable means the thing must be done as soon asreasonably can be expected. ‘Practicable’ means feasible, fair, and convenient and is not synonymous with possible.” In R v McCoy,(1990), (SK KB), 86 Sask R 204 Sask QB), there is an acknowledgement that each case must be assessed on itsparticular circumstance.

Mr. Justice Gerein said: . . .What is reasonable will depend on the particular circumstances of each case. As well, in each case the trial judge may have referenceto his or her own experience. At the same time, the Crown cannot be expected to account for every minute or even several minutes lostover a period of time. However, if the lapse is one of considerable or unusual duration, it is incumbent upon the Crown to provide anexplanation for the delay. If that explanation is accepted as proper then the lapse of time remains reasonable.

If the explanation isrejected then the sample is not obtained within a reasonable time and the presumption can have no application. [27] The question of whether tests were taken in a reasonable time has been considered and reported upon with some regularity.These cases make it clear that, where there is a delay, the Court must be satisfied that the conduct of the police in the interval betweenthe time of the alleged offence and the breath tests was reasonable; the Crown need not provide a detailed explanation for every minutethe accused is in custody: see R v Vanderbruggen, (ON CA), [2006] OJ No 1138 at para 8, 12 and 13.

The test is notwhether the tests possibly could have been taken sooner: see R v Burwell, 2015 SKCA 37 at paras 29- 32 incl. [28] In the case before this Court, there was a delay of 89 minutes between the time of driving and the first test. There is no disputein relation to the lapse of time preceding the breath demand, or the time of departure from the accident scene to the first test. The only

delay in issue is the time between the arrest of the accused at 12:48 and the departure from the scene at 1:22 a.m. Although the officersmight possibly have left the scene earlier, there is ample explanation in the evidence for why they remained. First, the accused’sdamaged vehicle created a hazard on the roadway and needed to be removed. Second, there were civilian witnesses from whomstatements needed to be taken. Third, attempts to have other officers attend were foiled because of the nature of the workload for thepolice in general on that particular night.

Fourth, although Sergeant Lynden was at the scene, he clearly was involved in supervisoryduties which may have prevented him from remaining until the road hazards were cleared. One might argue that the officers could haveacted differently or more quickly; however, that is not the test. The Court is to assess whether, on the particular circumstances of anygiven case, the delay was adequately explained and reasonable. In this case, the Court has no hesitation in finding that any delaybetween the time of the alleged offence and the taking of the tests was properly explained and reasonable.

Accordingly, the breath testswere taken as soon as practicable under the circumstances and since all the prerequisites of s. 258(1)(

c) of the Criminal Code have beenmet, the Court finds that the presumptions of that

section are applicable. (iii) Has the offence of driving over the legal limit been proven? [29] The Court is also satisfied beyond a reasonable doubt that the accused was the operator and sole occupant of the truckinvolved in a single vehicle collision that was witnessed by Mr. Wood on March 11, 2016 in the City of Saskatoon. Having found thatthe Certificate of Qualified Technician is admissible, that it ought not be excluded pursuant to s. 24(2) of the Charter, and that thepresumptions of s. 258(1)(

c) apply, there is uncontradicted evidence that, at the time of driving, the accused had 150 milligrams ofalcohol in one hundred millilitres of his blood.

Accordingly, all the elements of the offence have been proven beyond a reasonable doubt,and the accused is found guilty of the offence of driving while the concentration of alcohol in his blood exceeded 80 milligrams ofalcohol in 100 millilitres of blood. (iv) Has the offence of impaired driving been proven? [30] Aaron Wood testified that he saw the truck driven by the accused start up the exit ramp to Valley Road, strike the divide,become airborne and land in the right hand lane of Circle Drive.

The right wheel of the truck came off on impact and landed in the leftlane; the drive shaft was left behind in the right lane. Mr. Wood described the road conditions as “clear” with puddles but no ice toimpede the ability to slow down or brake. [31] He approached the driver who was the only occupant in the truck. There were no apparent injuries; he did not see the accusedlimping nor did he see any blood. He has seen people who are consuming alcohol and opined that, although the accused was pleasant, heappeared to be intoxicated.

He based this opinion on the fact that the accused stumbled, was slurring his speech, had the smell ofalcohol on his breath and could not walk a straight line. In spite of having been involved in a significant crash, the accused would notfollow directions to sit down, but rather got into his clearly inoperable vehicle and tried to start the engine.

In cross-examination, heagreed that the accused stumbled and seemed “out of it.” He could not agree that this behaviour was consistent with injury as, in hisexperience with Ski Patrol, he did not see injured people walking about. [32] Constable Gawryluk also made observations of the accused and described him as having red, glossy, bloodshot eyes, a thicktongue and slurred speech. The accused acknowledged to him that he had been consuming alcohol but could not give consistent answersto where or how much.

As noted earlier in this judgment, these observations, coupled with an unexplained collision formed the basis forthe breath demand. During the time that he spent with the accused prior to the breath tests, Constable Gawryluk noted that the accusedwas smacking his dry lips and was repetitive in his questions about the fate of his vehicle. In cross-examination, he agreed that theaccused walked steadily as he approached, and was not slow or deliberate in his movement.

He agreed that people normally drove atleast the speed limit of 90 kph in the location where the accident occurred but he did not recall ever having attended another accidentthere. Given the nature of the accident, he agreed that one might expect injuries but did not find it unusual that the accused was not hurtgiven the size of the vehicle he had been driving.

He believed that the symptoms he observed were not the result of the accident or ahead injury. [33] Having listened carefully to the testimony at the trial and having since reviewed the evidence in some detail, this Courtaffirmatively concludes that the accused’s ability to operate a motor vehicle was impaired by alcohol in accordance with the test set outin R v Stellato (1993), (ON CA), 78 CCC (3d) 380 (Ont CA) affd (SCC), [1994] 2 SCR 478[Stellato].

That test requires that the Court assess the evidence of driving and the physical comportment of the accused to determinewhether his ability to operate that vehicle was impaired, even slightly, by alcohol. This does not mean that slight evidence will suffice asthe Court must be satisfied of that fact beyond a reasonable doubt.

[ 34 ] In the case at hand, the accused collided with a large stationary object for no particular reason. In his warned statement, he indicated that he was paying attention to his driving and listening to directions from his GPS. Mr. Wood noted symptoms such as stumbling, slurred speech and the smell of alcohol, all of which are consistent with impairment by alcohol. Constable Gawryluk also observed similar symptoms which continued throughout his dealings with the accused.

The totality of this evidence leads to the inescapable conclusion that the ability of the accused to operate a motor vehicle was significantly impaired by imbibing alcohol. Therefore, he is found guilty of impaired driving. [ 35 ] As the accused has been found guilty of both counts on the information, the count of impaired driving will be conditionally stayed pending any appeal. _________________________ M. L. Gray J