R. v. Joyal, 2023 MBPC 22

CITATION: R. v. Joyal , 2023 MBPC 22 THE PROVINCIAL COURT OF MANITOBA BETWEEN: His Majesty the King, ) Guillaume Dragon, ) for the Crown ) -and- ) ) ) Daniel Joyal, ) John Skinner, ) for the Accused Accused, ) ) ) ) ) Reasons for Decision ) Delivered: May 17, 2023 BRISCOE P.J. Introduction [ 1 ] The accused is charged with impaired driving following the police investigating and locating a Jeep rollover on the side of the road in Snow Lake, Manitoba on April 23, 2021. [ 2 ] For the following reasons, I acquit the accused.

Issue [ 3 ] The issue in this case is has the Crown established beyond a reasonable doubt whether or not drugs or alcohol caused any degree of impairment to the driving ability of Mr. Joyal at the time of his driving his Jeep and thus at the time of the accident. Facts [ 4 ] This is not a comprehensive recitation of all evidence and argument; it is a concise

summary of certain important matters. Crown’s Case Civilian Witness # 1 – Jerry Campbell [ 5 ] Mr. Campbell affirmed his evidence before the Court. He indicated that he had no relation to the accused and didn’t know him until the day of the incident.

The matter was now 1 ½ years old, and the incident occurred sometime in the summer/fall of 2021. [ 6 ] He had left work around 6:00 p.m. on the day in question and his involvement in the matter began shortly after - he had left the Lalor mine site along with some others commuting in a work vehicle back to Snow Lake after work. [ 7 ] Their homeward bound vehicle came across the scene of an accident and noticed a Jeep on its side. They slowed down and approached the vehicle by stopping and pulling over. Mr. Campbell had advanced first aid training and he was focused on seeing if he could assist. [ 8 ] Mr.

Campbell saw an individual climbing out of the top of the vehicle – through an open window (that being the top of the vehicle since the vehicle was now on its side) – and he assessed that the individual seemed concussed and confused.

[ 9 ] There was nobody outside the vehicle when they got there, and they assisted Mr. Joyal out of the vehicle – he appeared to be the only person in the vehicle. [ 10 ] They then offered him a ride back to Snow Lake. Mr. Campbell couldn’t tell if the vehicle was still running, but he noticed that the lights were on. [ 11 ] The driver of their homeward bound vehicle, that being the same vehicle Mr. Campbell had left work in with co-workers, was Ashton Leif, and they then headed back towards town. [ 12 ] Mr. Joyal had requested to be taken back to the camp, as he would be late for work but the people in Mr.

Campbell’s vehicle took Mr. Joyal to the hospital – which was approximately one km away, about a five minute ride - and Mr. Joyal was co-operative. [ 13 ] Mr. Campbell did not call the police. They dropped Mr. Joyal off at the hospital, and Ashton Leif took him into Emergency while the others stayed in the vehicle. That was the end of his involvement in the matter. [ 14 ] Mr. Campbell testified that his primary concern was to help - particularly in regards to physical injury. He did notice a smell of alcohol in their vehicle from Mr.

Joyal once he entered the vehicle – he 100% smelled alcohol – and nobody in the vehicle before hand had been consuming alcohol as they had just come from work. Cross-Examination [ 15 ] Mr. Campbell testified that the accident looked like a typical roll over and he didn’t notice any alcohol, but that he also wasn’t looking for it. [ 16 ] As a first aid responder, he emphasized that the individual looked disoriented and confused and he assumed that it was from the accident. [ 17 ] Mr. Campbell could not clarify whether the smell of alcohol was new or fresh. [ 18 ] He had walked with Mr.

Joyal, but was not sure if he required physical assistance – he was primarily concerned about head and spinal damage. [ 19 ] He testified that Mr. Joyal was quite capable of walking on his own, and that when they were walking he walked in front of Mr. Joyal when they were walking. Civilian Witness # 2 – Ashton Leif [ 20 ] Ms. Leif affirmed her testimony – she could not recall the date of the incident but knew it was in 2021 and thought it was perhaps June of that year. [ 21 ] She remembers coming across the black vehicle tipped over on the road – that Jerry (Mr.

Campbell) and herself got out – checked out the vehicle to see if anyone was inside and then assisted Mr. Joyal when they located him in the vehicle. [ 22 ] Ms. Leif had been the driver of the vehicle heading homeward bound back to Snow Lake, coming home from the mine, and she was delivering four passengers home to Snow Lake. [ 23 ] Ms. Leif had chosen to stop at the accident to make sure everyone was okay. They got Mr.

Joyal out of the tipped vehicle – she said he looked shaken up but didn’t have any cuts or bruises – that he appeared to be fine and not injured in any way. [ 24 ] She then drove him into town to the hospital with the other passengers – Mr. Campbell and the other passengers were adamant that they take Mr. Joyal to the hospital. [ 25 ] Mr. Joyal was adamant that he didn’t need to go to the hospital and he wanted to be brought to either work or the camp, but he cooperated. [ 26 ] She could smell alcohol once Mr.

Joyal got in the vehicle – in the passenger seat. [ 27 ] She had certified training in first aid. [ 28 ] The smell of alcohol wasn’t fresh – smelled old – like it was coming out of his pores. [ 29 ] She didn’t see anything at the scene suggesting alcohol or alcohol consumption. [ 30 ] When they arrived at the hospital, she parked in the Emergency bay, and hit the buzzer for the emergency bay nurse. She then informed the fire chief about the accident – the fire chief is her boss. [ 31 ] When they arrived at the vehicle, two other vehicles had stopped as well. Nobody else was in the jeep. [ 32 ] She took Mr.

Joyal to hospital, and she called the fire chief on her own personal cell phone – multiple people had cell phones – and the accused had a cell phone. [ 33 ] She spoke to Mr. Joyal’s supervisor – on Mr. Joyal’s cell phone.

Cross-Examination [ 34 ] She again verified that she is trained in first aid, and she administered some first aid in this case but that there was no indication that Mr. Joyal was injured in any way shape or form based on her first aid training. [ 35 ] She testified that he didn’t seem intoxicated – he did not appear to be intoxicated. [ 36 ] He was a little shaken up – but didn’t seem intoxicated. [ 37 ] She has seen intoxicated people in her life. [ 38 ] She didn’t detect the old smell of alcohol until he entered the vehicle. She did not recall specific debris items from the accident.

Civilian Witness # 3 – Roxane Lamontagne [ 39 ] Ms. Lamontagne swore on the bible, that the incident took place on Friday April 23, 2021 around supper time. That this was during COVID. [ 40 ] That she works at the Snow Lake Motor Inn as the owner operator and as a waitress. [ 41 ] Mr. Joyal had come into the bar for a drink. [ 42 ] During this COVID timeline, everybody had to order food to drink and he did. [ 43 ] He ordered a beer, cheeseburger, and fries.

He further ordered a second beer and he left before receiving his food and didn’t come back – he came in alone. [ 44 ] She recalled that it was a fairly busy day and he left without his food – she was expecting him to come back and he never did. [ 45 ] The police then came to speak to her that evening – she had never called the police and they had come to her seeking information. [ 46 ] She verified again that Mr.

Joyal consumed two beers - two Budweiser beers – and then left. [ 47 ] She remembers this as she remembers everything as she is there all the time – that he was at the bar about 20 minutes and there was nothing strange or out of the ordinary about what happened on an extremely busy day. Cross-Examination [ 48 ] In Cross-examination, it was re-addressed that Ms. Lamontagne was the owner operator of the Snow Lake Motor Inn and that she was familiar with the liquor laws of Manitoba. [ 49 ] She was aware of laws around over serving alcohol and that if he was intoxicated he would not be served in that context.

Voir Dire [ 50 ] A Voir Dire was held to determine the admissibility of the certificate of analysis for the breath technician readings in support of the Crown’s case and whether the Court can rely on the presumption of

section 320.31(4) to admit the certificate into evidence. [ 51 ] In short, as per reasons indicated below, the balance of the evidence from the officer is ruled to have gone into the trial proper mutatis mutandis , aside from the certificate and the readings from the certificate itself.

Police Evidence –Constable Simard [ 52 ] Constable (“Cst.”) Simard affirmed his evidence and testified he has been an RCMP officer for 13 ½ years at the time of his testimony. [ 53 ] On April 23, 2021, just before 7:00 p.m., he received a call from his supervisor about a collision on Highway 392 (this is the main highway connecting Snow Lake to Highway 39). [ 54 ] He attended within a few minutes and observed a black jeep resting on its side.

He was on call dispatch – he doesn’t recall any concerns of an injured person walking off into the woods. [ 55 ] The complaint came in from a lady named Jennifer, who works at Hudbay Security, who was making her rounds that day. [ 56 ] When on scene, he confirmed there was nobody near by.

He took five photos of the scene that were presented to the Court and have been filed as Exhibits. [ 57 ] In Photo 1, he described tire tracks that he believed were from a vehicle skidding. [ 58 ] He noticed some items spread across the scene including a chicken meal, a coke can – the chicken smelled fresh. [ 59 ] He was looking for the person (the driver), and was made aware that he was at the hospital. [ 60 ] A passenger from another vehicle then waived him down – Mr. Daniel Joyal exited another vehicle from the passenger seat of said vehicle and talked to him.

[ 61 ] Mr. Joyal had admitted to being involved in the incident as being the driver of the Jeep. In the course of talking to Mr. Joyal, Cst. Simard observed he could smell alcohol on his breath. [ 62 ] Cst. Simard read Mr. Joyal the breath demand as he had made an utterance that “he was drinking earlier” at the Snow Lake Motor Inn and admitted being the driver. [ 63 ] Cst. Simard operated on the assumption that it was within the two hour window and that in this case he had received the initial call at 6:50 p.m. and then lawfully demanded a breath sample at 7:25 p.m. [ 64 ] Mr.

Joyal provided a sample and registered a fail on the Approved Screening Device (“ASD”). [ 65 ] Mr. Joyal was then arrested for impaired operation of a conveyance, read his right to counsel, and police warning. He was placed in the back of the police vehicle and taken back to the Snow Lake detachment. [ 66 ] Corporal (“Cpl.”) Young was the qualified breath technician. Two breath samples were taken from Mr. Joyal at 8:22 p.m. and 8:45 p.m. [ 67 ] Cst. Simard indicated that he was with Mr. Joyal during the entire period of his arrest. [ 68 ] Cst. Simard’s initial involvement was from Cpl.

Young over the radio, and the initial call was that Mr. Joyal was at the hospital. Cross-Examination of Cst. Simard [ 69 ] Cst. Simard clarified that he had been told by (Cpl.) Young of the motor vehicle collision by dispatch. That this was just general information and there was no indication of when the collision occurred. [ 70 ] At the time Cst. Simard made the ASD demand, he was not sure of the exact time the collision had occurred. [ 71 ] Cst. Simard indicated that the police investigation was initiated by the report from Jennifer from Hudbay.

He was not sure when this person did her “rounds” nor how often. [ 72 ] He clarified that his partner Cpl. Young interviewed Mr. Joyal, and that Mr. Joyal had got out of the passenger side of another vehicle on scene. [ 73 ] It was after the ASD that Mr. Joyal spoke about drinking after the accident. [ 74 ] Mr. Joyal had indicated that he was drinking, but didn’t indicate when. Mr. Joyal further indicated that he was going to work and didn’t tell them when the accident occurred. [ 75 ] Cst. Simard did not locate any beverage alcohol nor hand sanitizer on scene. [ 76 ] He also verified that Cpl.

Young did not tell him when the accident / collision had occurred. [ 77 ] Cst. Simard described Mr. Joyal as having a cooperative demeanour, and when he was speaking you could tell there was an odour of alcohol coming from his breath. [ 78 ] Cst. Simard testified that there were no visible signs of impairment from Mr. Joyal. [ 79 ] Cst. Simard’s suspicion for impaired driving was based on the smell of alcohol, Mr.

Joyal’s admission that he was the driver, and his observations of alcohol on his breath. [ 80 ] The matter was adjourned at this point for counsel to formulate written submissions to support their arguments around the voir dire . Conclusion of Voir Dire [ 81 ] The key issue arising from the voir dire was the timeline for the driving. [ 82 ] Defence counsel argued that Cst. Simard could not establish when Mr. Joyal had last operated the vehicle when it crashed and there was insufficient evidence that the first breath sample was taken in accordance within the parameters of

section 320.31(4) of the Code . [ 83 ] Defence argued that Cst. Simard could only speculate as to the time when Mr. Joyal last operated the motor vehicle. That the issue in this case is not so much whether the demand was lawful, but that there was insufficient evidence as to the time of driving as proof to an offence under 320.14(1)(

b) based on the presumption of

section 320.31(4) not being satisfied. [ 84 ] Crown counsel concluded, following the written submissions presented by defence counsel required in advance, that upon further review, the first breath sample was taken outside of the permissible two hour window and conceded that the Crown could not rely on the presumption under

section 320.31(4) for the resulting certificate of analysis.

[ 85 ] The Crown sought the Court endorse a Stay of Proceedings be formally entered on count 2 of the information. A stay of Proceedings was endorsed by the Court on March 10, 2023 for the 320.14(1)(

b) charge only and the trial continued on the 320.14(1)(

a) charge.

The Accused’s – Daniel Joyal’s - testimony [ 86 ] The accused testified, affirming his evidence to the Court, and outlined that he is a 41 year old man, resident of The Pas, and that he was working at Hudbay minerals in Snow Lake, Manitoba. [ 87 ] He testified that he was leaving the camp at Snow Lake to go to work for a night shift, and that he was driving about six minutes to get to a 12 hour work shift as an operator that would have began a shift at 6:30 p.m. [ 88 ] He testified that he did not consume any alcohol before the accident. [ 89 ] He testified that on the day in question he hit the shoulder, overcorrected and flipped the Jeep. [ 90 ] He testified that after the incident he was confused and distraught – he hadn’t missed a shift since employed and he wanted to inform his supervisor of the accident.

He says he was told to make sure he was okay and report the next day. [ 91 ] He was still in the vehicle when the other vehicle came by and assisted him – and he recalled that he needed very little assistance and that Mr. Campbell tried to help him – that they thereafter went to the hospital to get him examined by a medical nurse there. [ 92 ] He was examined and had a scraped scapula, and minor bump on his head after a thorough up close examination at the hospital. He decided to leave the hospital. [ 93 ] After he left the hospital, he took a shortcut and walked to the Motor Inn.

He described himself as being in disarray, was gathering his thoughts on the walking trail and began consuming alcohol. [ 94 ] He testified that he is only human and sometimes wants to have a drink – and he had a stash, a bottle waiting, a mickey of rye whiskey, and that he consumed ½ of its contents before the Motor Inn and then the other ½ after. [ 95 ] He further consumed two Budweiser beers while at the Motor Inn. [ 96 ] He was waiting for a buddy, Mr.

Johnson, to check up on him. [ 97 ] After he left the Motor Inn he started walking by the Corner View store, where it was arranged that he would get picked up on the side of the road. [ 98 ] Mr. Joyal finished the mickey, threw it away, and then Mr. Johnson picked him up and they then went to the scene of the accident so that Mr. Joyal could collect some personal items. [ 99 ] Mr. Joyal admits he was intoxicated as they returned to the scene. [ 100 ] Mr. Joyal insisted that they stop at the scene as he had nothing to hide, and was not afraid to attend the scene. [ 101 ] Mr.

Joyal emphasized that at time of accident he had not been drinking, and there were no effects of alcohol. Cross-Examination [ 102 ] Mr. Joyal indicated that he did not report the accident to police, but he would have if he hadn’t been taken by the other vehicle that prioritized bringing him to the hospital. [ 103 ] He was primarily concerned about calling his work supervisor and letting him know that he wouldn’t be going to work as that was his major issue. [ 104 ] Mr.

Joyal testified that he did not lose consciousness entirely as a result of the accident. [ 105 ] He reconfirmed that the accident was caused by him hitting the shoulder, then overcorrecting, and he then went across the road and flipped – that he never hit anything. [ 106 ] He testified that he had limited options to get out of the vehicle as the back door was damaged – it would only open from the outside in any event, and he had to get out through the driver door now pointed at the sky. [ 107 ] He didn’t know the people that helped him as he works at the Mill and they work at the mine – two different areas. [ 108 ] He was in disarray at the time. [ 109 ] As to the mickey, he testified he hid it behind a stump off the trail as there is no alcohol allowed in camp and he stashed the mickey inside his jacket pocket while at the Motor Inn. [ 110 ] He confirmed he had ordered the burger and fries and two beers but didn’t eat the food and only drank the two Budweiser beers.

[ 111 ] He testified that Mr.

Johnson was checking up on him because he recognized the vehicle. [ 112 ] He testified that he was driving about two minutes at the time of the accident, which would have been about 1/4 to 1/3 of the way of his total drive. [ 113 ] That he was alone in the vehicle and the only thing he would have had in his system was coffee, and he didn’t have any alcohol in his system on the way to work. [ 114 ] He was questioned about his post-accident alcohol consumption in regard to his state of mind and he indicated that he had never been in an accident before and never missed work at his posting in Snow Lake so this combination caused him great distress. [ 115 ] He acknowledged that he wanted to go back to the camp after he was picked up, and it was the idea of the civilians who picked him up to take him to the hospital. [ 116 ] He was turned over to hospital staff, examined by a medical nurse, not a doctor, and processed.

He was brought inside and it was a registered nurse that examined him. [ 117 ] After being examined he discharged himself from the hospital because he felt able to leave on his own two feet, and a doctor would take at least two hours before available. [ 118 ] He clarified that his friend contacted him. [ 119 ] When he left the hospital, he left on foot and the trails he took did not go to the RCMP detachment, and he admitted it was not on his mind to go the detachment at this time. [ 120 ] He did admit that he felt obligated to tell the RCMP what happened when they got back to the scene. [ 121 ] He didn’t believe it had been two hours, but he didn’t check the exact time. [ 122 ] He was asked why the vehicle flipped, and he answered that he had 33 inch tires on the Jeep with a 4 inch lift kit and that it was easy to flip. [ 123 ] He testified that he was travelling around 60-65 km/h.

Himself and his mother are the registered owners of the vehicle. [ 124 ] He was asked about the smell of alcohol and indicated that he had used hand sanitizer twice earlier and that he may have gotten some on his clothing. [ 125 ] He couldn’t attest as to what he thought the civilians who helped him thought about the smell of alcohol. [ 126 ] He went back to the scene to pick up items such as his wallet and explained that he paid for the meal at the Motor Inn because he always carries cash on him (even though he acknowledged he didn’t have any cash on him at the time of his cross-examination in court). [ 127 ] He was retrieving his ID, work bag, sign in card and personal belongings. [ 128 ] He didn’t make any observations of the vehicle or scene. [ 129 ] He explained that when he and Mr.

Johnson got to the scene he then went and told the police officer that it was his vehicle, he was driving, and that he consumed alcohol after he left the hospital. [ 130 ] He “somewhat” remembers the breath demand then made by the officer, and recalled that he hadn’t eaten. [ 131 ] He would have had the mickey and two beers on an empty stomach and he self-assessed his weight at around 175 pounds. [ 132 ] He wasn’t sure of his level of intoxication at the time of speaking to the officer, but at the time he felt okay and he wasn’t sure if the alcohol was in his bloodstream yet because it “takes time”.

Agreed Facts [ 133 ] After all viva voce evidence was called counsel agreed to admit the Emergency Treatment Report by the nurse. It was agreed that the writer of the report would not be called to testify. [ 134 ] It was further agreed that: On April 23 2021 Cory Johnson picked up Dan Joyal in his vehicle on the side of a road in Snow Lake, Manitoba. Mr. Johnson saw Mr. Joyal throw what looked like a bottle in the ditch which Mr. Johnson assumed was a bottle of hard liquor.

END OF EVIDENCE Argument of Defence [ 135 ] Defence argues that the issues of this trial have significantly been narrowed down as the evidence has come out over the course of the trial. [ 136 ] The sole issue is whether or not there is impairment, and that in the totality of the evidence there is no evidence of impairment of the ability to operate a motor vehicle.

[137] That the Crown’s case is based on circumstantial evidence. [138] That the medical report is significant, and as indicated in page 3 of that document, it comments on Mr. Joyal’s mental status andfurther noted that his speech was clear. The medical examination of the nurse had no indication of intoxication. [139] That the Court should be mindful of R v. Villaroman (2016 SCC 33 ) when analyzing the circumstantial evidence and theinferences to be drawn from the Crown’s case. In this context, the accident itself has a plausible explanation and Mr.

Joyal was neverquestioned in cross-examination about being impaired. [140] That there is no evidence that the accident alone is proof beyond a reasonable doubt. The mere fact of an accident does not meanimpairment – overcompensating when he hit the shoulder does not establish evidence of impairment. [141] It was conceded that Mr. Joyal was sometimes “combative” in cross-examination, but on the balance he was a credible witnesswith no reason not to accept his evidence. [142] That even if the Court does not believe Mr. Joyal, the remaining evidence is insufficient. [143] That the Court may be suspicious of Mr.

Joyal’s behavior, but he was shaken by the accident and the evidence needs to beanalyzed in totality. [144] When it comes to assessing Cst. Simard’s evidence, the relevant time is the time of driving and the Court must also be mindful ofthe medical report and the concrete proof it provides. [145] That Cst. Simard describing an odour of alcohol, does not make it a sign of impairment. Argument of Crown [146] The Crown asks the Court to focus on the evidence from the first responder, Mr. Campbell, and relying on his evidence to proveimpairment. [147] The Crown conceded that from the officer evidence, Mr.

Joyal did not exhibit signs of impairment – there was an odour ofalcohol but he was steady on his feet, with no visible signs of impairment. [148] The Crown asks the Court to consider the accused as being functional with alcohol. [149] The Crown asks the Court to analyze the timeline upon which he went to the hospital, and discharged himself and how that fits inwith his conduct afterwards. [150] That every individual who testified - from the vehicle that picked him up - that it became clearly noticeable that there was a smellof alcohol in the vehicle after Mr.

Joyal entered the vehicle. [151] The Crown asks the Court to take a common sense approach to the totality of the evidence and the circumstances, including theexplanation provided by Mr. Joyal as to how and when he consumed alcohol. [152] The Crown asks the Court to consider the nature of the driving as a marked departure, and to draw an inference of such in regardsto the evidence in this case. That his deviation in driving was a marked departure. [153] The Crown indicates that Mr.

Joyal was asked if he had been drinking prior and denied it during cross examination. [154] That the Court should look at the circumstances in their totality and that the evidence establishes proof of impairment.

That Mr.Joyal could be impaired, but go undetected. [155] When considering R v Andrews (1996 (ABCA) (1996 ABCA 23 , 104 CCC (3d) 392, this case is distinguishable on itsfacts as that case was dealing with a matter with extremely low readings below .025. [156] That in considering the Andrews case, I should focus on the last part of paragraph 30 – which reads as follows: common sense dictates that the greater the departure from the norm, the greater the indication that the person’s ability to drive isimpaired…and that speeding…would be less indicative of one’s ability to drive being impaired, than would weaving back and forth fromlane to lane, or travelling on the wrong side of the road. [157] That furthermore, paragraph 31 of Andrews outlines the appropriate test to determine impairment - and with the onus of proof thatthe ability to drive is impaired to some degree by alcohol or a drug is proof beyond a reasonable doubt and that proof can take manyforms that indicate behaviour that deviates from normal behaviour. [158] That the inference to be made for impairment is from weighing the circumstantial evidence of this case. [159] That the Court must look at the facts and evidence, and that in this case the accused’s evidence is self-serving and tailored to fitwithin the officer’s investigation.

That Mr. Joyal chose not to call the police, and if his testimony is believed he instead opted to go to thebar, have drinks, go to his stash and drink a mickey of whiskey instead. That he opted to call his boss and friends but not the police. [160] That when looking at the accused’s evidence, it should not be accepted. [161] The burden of the case never shifts to the accused.

[ 162 ] That there is a presumption of care and control as Mr. Joyal was the driver, and there is sufficient evidence to make out the offence. Law [ 163 ]

Section 320.14(1) (

a) of the Criminal Code sets out the offence of impaired driving as follows: 320.14(1) Everyone commits an offence who (

a) operates a conveyance while the person’s ability to operate it is impaired to any degree by alcohol or a drug or by a combination of alcohol and a drug. Case Law [ 164 ] The Criminal Code does not prescribe any special test for determining impairment such as a “marked departure” from normal behaviour.

If the evidence of impairment establishes any degree of impairment, ranging from slight to great, the offence is made out”. (see R v Stellato – 1993 (ONCA), 2 SCR 478 n)(“ Stellato ”). [ 165 ] Stellato, however, requires further clarification in the practical application of this framework for “any degree of impairment”, and this was addressed in Andrews , supra, (leave to SCC refused)(“ Andrews ”). [ 166 ] In Andrews the key issue on appeal was the distinction between the degree of impairment of the ability to operate a motor vehicle necessary to found a conviction, and the degree of deviation from normal conduct necessary to prove that ability is impaired (see para. 2 – Andrews ). [ 167 ] As is emphasized in Andrews , a trial judge must specifically direct his mind to the question of whether the ability to drive of the appellant was impaired (emphasis as per ABCA). [ 168 ] Paragraph 19 of Andrews is particularly informative to the case at hand: [19] The courts must not fail to recognize the fine but crucial distinction between “slight impairment” generally, and “slight impairment of one’s ability to operate a motor vehicle”.

Every time a person has a drink, his or her ability to drive is not necessarily impaired. It may well be that one drink would impair one’s ability to do brain surgery, or one’s ability to thread a needle. The question is not whether the individual’s functional ability is impaired to any degree. The question is whether the person’s ability to drive is impaired to any degree by alcohol or a drug.

In considering this question, judges must be careful not to assume that, where a person’s functional ability is affected in some respects by consumption of alcohol, his or her ability to drive is also automatically impaired. There is significant jurisprudence in the area of impaired driving law, but I find that Andrews is specifically on point to the key issue of this case. Analysis [ 169 ] The key issue in this case is whether or not drugs or alcohol caused any degree of impairment to the driving ability of Mr.

Joyal at the time of his driving his Jeep and thus at the time of the accident. [ 170 ] It must be established beyond a reasonable doubt that there was impairment at the time of driving caused by drug or alcohol. [ 171 ] The civilian evidence presented in totality that once they were around Mr. Joyal they could smell alcohol emanating from his person – coming from him when there was no smell of alcohol before amongst their group. [ 172 ] However, when these civilians dealt with Mr.

Joyal since the time that he was picked up in his overturned vehicle and thereafter, they have indicated that they did not make any observations of impairment. [ 173 ] Mr. Campbell and Ms. Leif in cross-examination specifically noted no signs of impairment nor suspected impairment by alcohol. Ms. Leif specifically indicated that Mr. Joyal did not seem to be impaired by alcohol. [ 174 ] Mr.

Joyal needed very little help to get himself sorted when they found him in the Jeep, and there was no indication of slurred speech or stumbling or lack of coordination, nor glossy eyes or any other range of observations typically associated with possible signs of impaired driving. [ 175 ] Mr.

Joyal seemed distraught or concussed, but he needed little help and there was no indication that his behaviour or actions were impacted by alcohol. [ 176 ] These Good Samaritan civilians who observed a smell of alcohol, then brought him to the hospital, and though they may not have been looking for indicia of impairment, they did not notice any behaviour of impairment when he was with them on scene or in the vehicle. [ 177 ] Furthermore, when he was then taken to a further medical professional - i.e. the intake nurse at Snow Lake hospital who conducted a thorough personal examination of Mr.

Joyal - this person did not note any signs of intoxication or impairment in their report.

[ 178 ] This lack of observations of impairment by the civilians and the medical professional is further supported by Cst. Simard’s testimony that that there were no visible signs of impairment from Mr. Joyal during the course of the investigation. [ 179 ] Mr. Joyal has testified that he did not consume any alcohol before he was driving to work, and though I do not necessarily believe him absolutely on this point, he does not need to prove the extent of his sobriety before the Court – the Crown must prove his ability to drive was impaired and that is inconsistent with the evidence in this case. [ 180 ] Mr.

Joyal does not have to prove anything in this case – the burden falls on the Crown to prove beyond a reasonable doubt that Mr. Joyal was impaired by drug or alcohol at the time of the driving. [ 181 ] The proof of impairment at the time of driving is not unequivocal, it is not clear in this case – it is not established beyond a reasonable doubt. [ 182 ] There are signs of alcohol emanating from Mr.

Joyal prior to police involvement, but the extent of alcohol consumption is unclear as well as the source of alcohol on or from his person – including whether it was from his mouth, his clothes, his hands or whether it was a fresh or stale observation of alcohol. [ 183 ] How this smell of alcohol impacted his ability to operate a motor vehicle is unclear. [ 184 ] The Crown’s case depends on the assertion that the smell of alcohol from Mr. Joyal is indicia of impairment and that Mr.

Joyal must have been impaired to some degree because he smelled of alcohol and he therefore must have been impaired to some degree at the time of driving. [ 185 ] The Crown emphasized in its closing argument that the Jeep being in the accident was indicia of impairment as it is a significant deviation in assessing driver conduct – I do not agree. [ 186 ] There is more than one possibility for what happened here based on the evidence I do accept – and without going through an exhaustive list of alternate explanations – it is more than reasonable that this accident was plausible without alcohol playing a factor in the driving in and of itself, and a direct connection between impairment and the driving is not established beyond a reasonable doubt. [ 187 ] As the photos demonstrate, this is a two lane paved road with gravel shoulders and the possibility of the jeep catching the shoulder and then the vehicle being overcorrected and flipping is within the scope of a plausible narrative that does not depend on impairment by drug or alcohol.

This alternate explanation is more than plausible in this case. [ 188 ] In short, it is speculative to assume the only narrative for the Jeep flipping over was due to drug or alcohol impairment of the ability to drive.

Guilt by way of impaired driving is not the only explanation and I am mindful of Villaroman, supra, in regards to this line of reasoning. [ 189 ] The accident being indicia of impairment is speculative, and I must be mindful of the direction of the Alberta Court of Appeal as emphasized at paragraph 19 of Andrews, supra, as highlighted above in this decision. [ 190 ] The reality is there are numerous car accidents everyday in this country, and Mr.

Joyal’s explanation that he lost control of his vehicle when it hit the shoulder and he then overcorrected is a plausible explanation that can be considered apart from whether or not there was or was not any alcohol involved. [ 191 ] I found Mr. Joyal’s explanation on this point credible. [ 192 ] The combination of Mr. Joyal having alcohol emanating from him and the vehicle flipping do not lead to the sole conclusion that he was necessarily impaired. [ 193 ] In short, Mr. Joyal’s driving ability need not to have been impaired by alcohol for the accident to occur.

Conclusion [ 194 ] I find no reliable evidence of proof beyond a reasonable doubt of impairment to Mr. Joyal’s ability to drive caused by drug or alcohol at the time of driving. [ 195 ] I do find that there was some indicia of the smell of alcohol at the scene of the accident on Mr. Joyal as confirmed by the civilians, but there is no evidence that alcohol had any role in the accident of the Jeep flipping nor on Mr.

Joyal’s driving at the time. [ 196 ] Nobody involved, whether civilian or police, noted any signs of impairment, and without any reliable evidence as to his blood alcohol level at the time of the accident, I am left with a reasonable doubt as to the extent of his impairment at the time he was driving. [ 197 ] The evidence of impairment is ambiguous, and the Crown onus is not met. [ 198 ] As Mr. Campbell testified, it looked like a “typical rollover” and I am not satisfied beyond a reasonable doubt that based on the totality of the evidence I do accept to find impairment played a

part in the accident or the driving. [ 199 ] I acquit Mr. Joyal of the 320.14(

a) offence of impaired driving accordingly. “Original signed by” _______________________

BRISCOE P.J.