R. v. Martindale, 2017 ONCJ 656

ONTARIO COURT OF JUSTICE CITATION: R. v. Martindale, 2017 ONCJ 656 DATE: 2017 04 21 Central East Region: Oshawa Court File: 15-35755 BETWEEN: HER MAJESTY THE QUEEN — AND — JOHN MARTINDALE Before Justice Peter C. West Heard on January 23 and 24, 2017 Submissions heard on April 21, 2017 Reasons for Judgment released on April 21, 2017 Ms. B. Green, Ms. J. O’Connor......................................... counsel for the Crown Ms. K. Fay....................................... Counsel for the defendant John Martindale WEST J.: [1] Mr.

Martindale was charged on November 22, 2015 with impaired driving and over 80, contrary to the Criminal Code. Hepleaded not guilty and a trial was commenced. The Crown called three witnesses, Connie Casselman, a security guard at the Great BlueHeron Charity Casino in Port Perry on Island Road; P.C. Deborah Knight, arresting officer and P.C.

Giasson, Qualified BreathTechnician. [2] At the conclusion of counsel’s submissions I dismissed the charge of over 80, in brief oral reasons, as the Crown had not provenbeyond a reasonable doubt that the first breath sample was taken within two hours as required by s. 258(1)(c)(ii). [3] These are my written reasons respecting the impaired charge. [4] There is no definition of "impairment" in the Criminal Code. It is a factual question that must be decided on the evidence in eachcase: R. v. Stellato, (1993), (ON CA), 78 C.C.C. (3d) 380 affirmed (SCC), [1994] 2 S.C.R. 478;Graat v.

The Queen (1982), (SCC), 2 C.C.C. (3d) 365 (S.C.C.), at 400-401. The critical question, however, is whetherthe requisite impairment occurred, not the degree of any impairment. As said by the Ontario Court of Appeal in R. v. Stellato, supra, atpara. 10, adopting the language of the Prince Edward Island Court of Appeal in R. v.

Campbell (1991), (PE SCAD),87 Nfld. & P.E.I.R. 269, at 320: It is not an offence to drive a motor vehicle after having consumed some alcohol as long as it has not impaired the ability to drive.However, a person who drives while his or her ability to do so is impaired by alcohol is guilty of an offence regardless of whether hisability to drive is greatly or only slightly impaired. [Emphasis added.] [5] And later, at para. 14:

[B]efore convicting an accused of impaired driving, the trial judge must be satisfied that the accused's ability to operate a motor vehiclewas impaired by alcohol or a drug. If the evidence of impairment is so frail as to leave the trial judge with a reasonable doubt as toimpairment, the accused must be acquitted. If the evidence of impairment establishes any degree of impairment ranging from slight togreat, the offence has been made out. [Emphasis added.] [6] The core issue is not whether the defendant drank and drove but whether that drinking impaired his ability to drive.

The legalbasis for this argument is set out in the oft-quoted case of R. v. Andrews (1996), 1996 ABCA 23 , 104 C.C.C. (3d) 392 (Alta.C.A.), at paras. 19, 20, 24, 27; leave to appeal refused, [1996] S.C.C.A. 115, 106 C.C.C. (3d) vi (S.C.C), which adopts, explains andapplies the reasoning in Stellato: [I]t is so important not to deal with the issue of impairment separate from impairment of one's ability to drive. Stellato must not beunderstood to mean that a person who has anything to drink and then drives a motor vehicle commits the offence under s. 253(a) [now s.253(1)(a)].

Nor does it mean any lack of sobriety is sufficient. ... The ratio of the judgment in Stellato is that it is not necessary for the Crown to establish a marked degree of impairment of the accused'sability to drive; rather, any degree of impairment of that ability, if proved beyond a reasonable doubt, will sustain a conviction. ... [Stellato] speaks to degree of proof. In other words, as framed in Stellato, the conduct must be of such a nature that an impairment ofthe ability to operate a vehicle (be it slight or marked impairment) is proven beyond a reasonable doubt. ...

It is not deviation from normal conduct, slight or otherwise, that is in issue. What is in issue is the ability to drive. Wherecircumstantial evidence alone or equivocal evidence is relied on to prove impairment of that ability, and the totality of that evidenceindicates only a slight deviation from normal conduct, it would be dangerous to find proof beyond a reasonable doubt of impairment ofthe ability to drive, slight or otherwise. [7] In R. v. Bush, 2010 ONCA 554 , [2010] O.J. No. 3453 (Ont.

C.A.) at para. 47, the Ontario Court of Appeal citedStellato and Censoni with approval and held, “Slight impairment to drive relates to a reduced ability in some measure to perform acomplex motor function whether impacting on perception or field of vision, reaction or response time, judgment, and regard for the rulesof the road: Censoni at para. 47.” [8] In my view, the Crown has proven the charge of impaired operation beyond a reasonable doubt based on the totality of theevidence. I found the evidence of the three Crown witnesses to be credible and reliable. Ms.

Casselman was an independent witness whohad no motive to fabricate, embellish or lie. Her observations of Mr. Martindale were as follows: 1. She saw the white F150 drive into the casino parking lot at a high rate of speed, which she estimated was between 20-40 km/hr. 2. The driver came to an abrupt stop in the over flow parking lot, stopping very quickly. The F150 was stopped at an angle and not in aparking spot. She identified two photographs which show how the truck was parked. 3.

She was in the shuttle bus with the window rolled down and pulled in front of the driver who had immediately exited his car when itstopped. She asked Mr. Martindale, “Hey buddy, what’s going on?” He replied he needed to get into the casino. She instantly couldsmell a very strong odour of alcohol off of his breath. 4. Mr. Martindale was slurring his words. 5. Mr. Martindale was having a hard time standing in one spot. He was moving and was not standing still when he was talking to her. Heappeared anxious to her. 6. She told Mr.

Martindale she could not let him in the casino as she was pretty sure the police officer coming into the parking lot in amarked police cruiser, lights flashing, was coming for him. [9] P.C. Knight, a police officer since 1998, made the following observations respecting indicia of impairment: 1. She observed F150 on Island Road travelling 80 km/hr. When he got to the casino the driver did not slow down his speed when heturned into the parking lot. The driver was driving at high rate of speed in the parking lot of the casino. She observed the driver get out ofthe F150 and approach a shuttle bus.

He got out of the F150 quickly and went directly to the bus. 2. P.C. Knight took photos of how F150 was parked. F150 is stopped at an angle and not in a parking spot. 3. Officer advised Mr. Martindale his vehicle reported as possible impaired driver and she was conducting investigation. When asked toidentify himself the driver said his name was John. When the officer asked for his driver’s license Mr. Martindale gave the officer hiswallet and asked her to get it out. She gave it back and told him to provide the driver’s license. 4. Officer believed Mr.

Martindale was stalling and was reluctant to provide her with other documents she had requested, ownership andinsurance. Mr. Martindale went to driver’s side of truck and opened the back door, which let his German Shepherd dog out. She viewedthis as a further stall tactic. The dog was protective of the vehicle. Mr. Martindale put the dog back in the truck. 5. Mr. Martindale then went to the passenger front and opened the door to go to the glove box to retrieve the requested documents.

Theofficer did not believe there was any purpose in opening the driver’s door except as a stall tactic or to have the dog scare the officers. 6. Officer detected a faint odour of alcohol from his breath but there was a wind blowing. 7. Mr. Martindale’s speech was slurring and he was being very careful with his wording. 8. When Mr. Martindale was walking he was dragging his heels as to kind of support himself.

9. When he was getting the documents from the glove box he was using the passenger seat as support to keep himself standing. 10. When he took the documents out of his wallet he was swaying back and forth. He was “rocking” back and forth. 11. The officer believed he was intoxicated, impaired by alcohol so she arrested him for impaired. 12. His eyes were glassy, as in shiny. He was dishevelled, his hair was messy and he was unshaven. 13. After the officer placed Mr. Martindale under arrest and placed him in the back of the police cruiser, Mr.

Martindale kept saying she had not given him a test yet so why was she arresting him. The officer described him as being confused as to why he was in the back of the cruiser even after the officer explained. 14. During the transport to the police station the odour of alcohol was moderate coming from Mr. Martindale. In the police car Mr. Martindale’s speech was much more slurred. Mr. Martindale fell asleep for five minutes in the back of the cruiser at some point. 15. In cross, the officer indicates Mr. Martindale was argumentative throughout.

He did not understand why he was stopped, why he had to provide his documents, why he was in the back of the police cruiser. [ 10 ] P.C. Giasson, the Qualified Breath Technician, with 4 years’ experience in that role, was with Mr. Martindale for approximately a half an hour. He made the following observations: 1. Mr. Martindale’s speech was slurred at times. From watching the breath room video, Exhibit 5, I observed Mr. Martindale’s speech to be slurred at times. 2. When he first dealt with Mr. Martindale and he was standing, the odour of alcohol coming from his mouth was strong.

Later when he was seated the odour of alcohol was moderate. 3. His face was flushed. His eyes were bloodshot. 4. Based on his dealings with Mr. Martindale, P.C. Giasson formed the opinion Mr. Martindale’s ability to operate a motor vehicle was impaired by alcohol. He noted slight impairment from his observations. [ 11 ] All three witnesses describe a moderate to strong odour of alcohol coming from Mr. Martindale’s breath. All three witnesses describe Mr. Martindale as slurring his words. I am of the view he was slurring his words at times on the breath room video, Exhibit 5.

His speed entering the parking lot, in my view was excessive. His parking of the F150 at an angle as depicted in the photographs, Exhibit 1 demonstrate his ability to operate the vehicle was impaired. I find he was attempting to stall P.C. Knight’s investigation by not providing his full name, handing the officer his wallet when she asked for his driver’s license, and by letting his dog out of truck by opening the driver’s side rear door. His unsteadiness on his feet while attempting to get his wallet when he was swaying back and forth. This is observed by Ms.

Casselman as well when he is speaking to her outside the bus, he had a hard time standing in one spot. His act of holding onto the passenger’s seat to support himself when getting documents out of the glove box. His eyes were glassy and bloodshot. He was argumentative with the officer, I find this was part of the stalling tactic. He also appeared to be confused about what was happening even after the officer explained things to him, which I find demonstrates impairment. [ 12 ] All of the above evidence of impairment, considered in their totality, satisfies me beyond a reasonable doubt that Mr.

Martindale’s ability to operate a motor vehicle was impaired by the consumption of alcohol. The impairment only has to be slight and in my view on the totality of the evidence his impairment by alcohol was much higher than slight when he is first observed by Ms. Casselman and P.C. Knight. P.C. Giasson’s opinion of slight impairment was not challenged and must be considered when considering the earlier evidence of indicia of impairment. Consequently, there will be a conviction registered. Released: April 21, 2017 Signed: Justice Peter C. West