R. v. Smith, 2011 ONCJ 67

COURT FILE No.: Halton 09 4044 DATE: 2011·02·10 Citation: R. v. Smith , 2011 ONCJ 67 ONTARIO COURT OF JUSTICE BETWEEN: HER MAJESTY THE QUEEN — AND — ROBERT SMITH Before Justice Sheilagh O’Connell Heard on January 14, 2011 Reasons for Judgment released on February 10, 2011 D. Sahulka ................................................................................................................ for the Crown L. Muller ............................................................................................ for the accused Robert Smith O’CONNELL J.: [ 1 ] Mr. Smith is charged with operating a motor vehicle while his ability was impaired by alcohol, contrary to s. 253(1) (

a) of the Criminal Code . The issues of date, jurisdiction and identity are admitted by Mr. Smith. Mr. Smith does not take issue with the fact that he was the operator of the motor vehicle identified by witnesses. [ 2 ] The issue is whether the Crown has discharged its burden to prove beyond a reasonable doubt that Mr. Smith’s ability to operate his motor vehicle was impaired by alcohol at the material time. The Crown elected to proceed summarily. THE EVIDENCE: [ 3 ] The Crown’s evidence consisted of the testimony of a civilian witness, the arresting officer and the breathalyser technician. Mr.

Smith testified in his own defence and also introduced video and audio taped evidence of Mr. Smith in the cells and the breathalyser room. Evidence of Nicholas Radonovich : [ 4 ] Mr. Radonovich is 29 years old and employed as a network cable technician. He testified that on the evening of August 23, 2009, he was driving on the Queen Elizabeth Way (QEW) towards Fort Erie. He entered the highway at Appleby Line and first noticed Mr. Smith’s vehicle at Walker’s Line, approximately five minutes after he was driving on the QEW.

He testified that he observed the vehicle weaving in and out of the middle and right hand lanes. He estimated that the vehicle was travelling at approximately 110 kilometres per hour. He further testified that at one point he observed the vehicle to pass two vehicles by moving out into the middle lane and when the vehicle came back into the right hand lane, it forced the vehicle directly behind it onto the highway shoulder, in order to avoid a collision. [ 5 ] Mr.

Radonovich testified that he observed the vehicle to swerve in and out of the right lane even before it passed the two vehicles, although it had no reason to do so because the lane was clear. He testified that he slowed down to the same speed as the vehicle (approximately 110 kilometres per hour) and stayed approximately fifty feet behind the vehicle in the middle lane in order to stay far enough back to avoid anything. Mr. Radonovich testified that he always stays in the middle lane when he is driving on the QEW. [ 6 ] Mr.

Radonovich testified that the driving he observed led him to conclude that the driver was drunk. He called OPP and reported his observations, including a description of the vehicle and its licence plate. [ 7 ] Mr. Radonovich further testified after the vehicle passed the two vehicles and the near collision was avoided by the vehicle immediately behind it, he does not recall what the vehicle was doing. Mr. Radonovich testified that the vehicle continued onto the 403 while he remained on the QEW Fort Erie bound so he would no longer follow it.

He observed the vehicle just short of 10 minutes before it exited onto the 403 highway.

[ 8 ] Mr. Radonovich testified that these events occurred at approximately 9:00 p.m. on a summer evening. It was a clear night, it was not raining, and the lanes on the QEW were clearly marked. Evidence of Police Constable William Dellow : [ 9 ] Constable Dellow has been an Ontario Provincial Police (OPP) officer since 2007 and was the investigating officer for this incident. On August 21, 2009, he was on duty, operating a fully marked police cruiser. [ 10 ] He testified that at approximately 9:40 p.m. that evening he received a call from the dispatcher regarding a “possible impaired driver” on the highway.

The description and licence plate were provided and information that the driver was driving erratically. The dispatcher advised Constable Dellow of the possible location and Constable Dellow proceeded onto Highway 403 westbound to locate the vehicle. [ 11 ] Constable Dellow testified that he located the vehicle at 9:42 p.m. travelling westbound on Highway 403 in the third lane of three lanes (“the slow lane”). The vehicle was travelling at 90 kilometres per hours in a posted 100 kilometres speed limit.

He observed that the road conditions were clear and dry, and the road markings were clearly defined. [ 12 ] Constable Dellow testified that he followed the vehicle for approximately one kilometre at 90 kilometres per hour before activating his lights and siren. He testified that the time from first observing Mr. Smith’s driving and the time the vehicle stopped was “mere seconds.” [ 13 ] Nevertheless, during that time, Constable Dellow observed that the vehicle was “floating” between the middle lane and the right lane. He testified that although Mr.

Smith never actually crossed over the lanes, he definitely observed him to “float” more than once. He explained that this meant that is, Mr. Smith would travel closer to the left and then the vehicle would correct itself and move back. Constable Dellow testified that there was no change in the variance of the vehicle’s speed and that the vehicle never crossed over the lane before correcting itself. [ 14 ] Constable Dellow testified that when he activated his lights and siren, Mr. Smith had no difficulty moving his car over onto the paved shoulder.

He further testified that although his practice is to approach the passenger side of the vehicle, on this occasion he went directly to the driver’s side because Mr. Smith had put his arm out of the window holding a Tim Horton’s coffee cup while he was approaching. When Constable Dellow approached the driver’s side, Mr. Smith said, “This is what I am drinking tonight.” Constable Dellow observed it to be a “bone dry” Tim Horton’s coffee cup with no liquid in it. [ 15 ] Constable Dellow also testified that Mr. Smith had not put his vehicle in “park” when he stopped, but kept the vehicle in “drive”.

Constable Dellow testified that Mr. Smith believed it was in “park” and he had to demonstrate that it was in “drive” before Mr. Smith agreed and then placed the vehicle into “park”. [ 16 ] Constable Dellow testified that he observed Mr. Smith’s eyes to be “extremely red” and “glossy” and that he detected the odour of alcohol from Mr. Smith. He testified that when he asked Mr. Smith for identification, he originally reached for his documents in the glove compartment but then actually retrieved them in a small black wallet in his pocket. He testified that Mr.

Smith had no difficulty looking into the glove compartment and that he had no difficulty removing his wallet from his back pocket and handing him the correct documents. [ 17 ] Constable Dellow further testified that when Mr. Smith stepped out of the vehicle at his request, he was “extremely unsteady on his feet”, even though the pavement was flat, clean and dry. He testified that Mr. Smith dropped his cell phone after making two attempts to clip the cell phone onto his belt. He further testified that when Mr.

Smith dropped the cell phone, he bent over from the waist to pick it up and nearly fell forwards towards the constable. Constable Dellow stepped back and Mr. Smith corrected himself. Constable Dellow further testified that he observed Mr. Smith to be swaying back and forth (from heel to toe) while standing there. [ 18 ] Constable Dellow then asked Mr. Smith how many alcoholic beverages he had consumed and Mr. Smith told him that he had one bottle of beer. [ 19 ] Constable Dellow testified that at 9:48 p.m. he formed the reasonable and probable grounds that Mr.

Smith was operating a motor vehicle while impaired and he was placed under arrest. The reasonable and probable grounds were the following: 1) Mr. Smith’s erratic driving; 2) The odour of an alcoholic beverage emanating from his breath; 3) Mr. Smith’s red and glossy eyes; 4) Mr. Smith’s admission of the consumption of alcohol; 5) Mr. Smith was “extremely unsteady” on his feet when he first exited his vehicle, including dropping his cell phone and swaying, and his extreme unsteadiness throughout that period of time. [ 20 ] Constable Dellow did not observe any slurred speech.

He testified that after the arrest, he transported Mr. Smith to the Burlington police detachment and they arrived approximately 12 minutes after he arrested Mr. Smith at the roadside. [ 21 ] Constable Dellow testified that once they were at the detachment, he did not have any new observations. He testified that Mr. Smith continued to have “red and glossy eyes”, and he continued to detect the odour of alcohol, and Mr. Smith continued to be extremely unsteady on his feet. He testified that while escorting Mr. Smith, he had to hold his arm to make sure he did not fall forward

or back and he once again observed the same “swaying motion”, while Mr. Smith was standing which is over and above what he would observe as normal behaviour on a daily basis. Evidence of Constable Flowers : [ 22 ] Constable Flowers has been a member of the Ontario Provincial Police for five years. He is a qualified breath technician and has been so qualified for the past three years. In direct examination, Constable Flowers testified that Mr. Smith was “slightly unsteady” on his feet when he was walking to and from the breathalyzer room. He testified that Mr.

Smith appeared to be walking “extra careful” as if he was forcing his walk to be “normal”. He testified that he escorted Mr. Smith from the “breath room” to his cell and he observed Mr. Smith to be “unsteady on his feet” when he walked back to his cell. [ 23 ] Constable Flowers further testified that he detected an odour of alcohol on Mr. Smith’s breath and that his eyes were red and glassy. [ 24 ] Constable Flowers further testified that Mr. Smith made several attempts to insert the mouthpiece from the breathalyzer into his mouth and he was not successful. He testified that Mr.

Smith had poor coordination because after he unsuccessfully attempted to insert the mouthpiece into his mouth by holding onto it with his teeth, Constable Flowers instructed Mr. Smith to insert the mouthpiece with his hand. Constable Flowers testified that Mr. Smith missed the hole, “several times by trying to insert it with his hands” and observed what he described as poor coordination. [ 25 ] Constable Flowers further testified that Mr. Smith’s speech seemed to be fine.

He then corrected himself when looking at his notes, as his notes indicated “speech appeared to be slurred.” He then testified that his independent recollection was that Mr. Smith’s speech was “slightly slurred”. The Crown conceded that there was no evidence of slurred speech in her closing submissions. [ 26 ] Constable Flowers concluded that Mr. Smith’s ability to operate a motor vehicle was impaired by alcohol and he rated Mr. Smith’s intoxication to be “extreme”. Constable Flowers testified that he rated Mr.

Smith’s intoxication to be “extreme” for the following reasons: 1) Unsteadiness on his feet; 2) Odour of alcohol on his breath; 3) Bloodshot and glassy eyes; 4) Poor coordination [ 27 ] Constable Flowers further testified that Mr. Smith’s demeanour seemed “carefree” as if he did not care to do the breath test. The audio and videotape evidence of Mr. Smith in the cells and breathalyzer room [ 28 ] The defence introduced the video of Mr. Smith in the cell area and in the breathalzyer room with Constable Flowers. The video in the cells had audio and Mr. Smith’s voice as well as others could clearly be heard.

The video in the breathalyzer room did not have audio. [ 29 ] The video of the cell and the breath room is approximately one hour in length. The recording is continuous so that numerous cameras are involved to ensure the sequence of events. This may lead to a sometimes “jerky” recording, according to the Crown; however a “stop action” video is not being used. [ 30 ] Throughout the playing of the video and audio recording, it can be observed that Mr. Smith is very cooperative, his speech is definitely not slurred and he does not appear to be visibly impaired.

He answered all questions readily and he did not appear to be swaying back and forth and did not appear to be unsteady on his feet. He is observed to be standing for fairly lengthy periods of time and he is seen walking. At one point in the video, when asked to remove his sandals and belt, he does so without difficulty and in fact, stands on one foot and balances, without swaying, and removes one sandal, and then balances on the other foot and does the same thing. [ 31 ] He is observed to lie down and sit up very quickly on at least two occasions without swaying while waiting in the cell.

It is not possible to view or see Mr. Smith’s eyes in the video and the video is a little choppy. [ 32 ] When reviewing the video and audio of the cells, Constable Dellow conceded that while Mr. Smith is being searched, he had no problem taking his belt and sandals off, and balancing on one foot while he took a sandal off, and then balancing on the other foot to do the same thing. He observed that Mr. Smith had no difficulty drinking water, no difficulty walking, and that while Mr. Smith was waiting to exit his cell to go to the privacy room to speak to counsel, Mr.

Smith had no difficulty leaning against the wall for fairly lengthy period of time, while standing on his right leg, with his left foot crossed over and putting all of his support on his right foot. Constable Dellow conceded that Mr. Smith had no problem doing this and he had no difficulty with his balance. The video does not indicate any swaying of the body. [ 33 ] Constable Dellow testified under cross-examination when viewing the video, that Mr. Smith had no difficulty walking to the privacy room or the breath room. He further testified that when Mr.

Smith entered the breath room, he had no difficulty negotiating his movements around a chair to approach the desk. [ 34 ] Constable Dellow testified that during the times that he was present with Mr. Smith as recorded in the video, he did not observe that Mr. Smith had any problems walking and that he had no difficulty removing his belt and his sandals. He did not observe Mr. Smith swaying back and forth in the video.

[ 35 ] In reply, Constable Dellow testified that there were times that were not shown on the video during which Constable Dellow observed Mr. Smith’s “back and forth” movement. He testified that when he was assisting and escorting Mr. Smith into the police detachment and escorting him up the stairs (not captured on video), he observed the swaying motion and Mr. Smith’s unsteadiness on his feet.

He further explained that the video recordings are digital images made from a number of images, so the movements that are being observed are not entirely natural and somewhat jerky. [ 36 ] During his cross-examination, Constable Flowers also had an opportunity to view the video and audio recording of Mr. Smith in the breath room. [ 37 ] Constable Flowers admitted, while watching the breath room video, that Mr. Smith appeared to walk into the breath room without difficulty, negotiated past a chair and then sat down without difficulty.

He further testified that he handed the mouthpiece wrapped in a plastic package to Mr. Smith and he opened it without difficulty. He further testified that Mr. Smith is able to put the mouthpiece in his mouth and to blow without difficulty. [ 38 ] Under cross-examination, Constable Flowers testified that his earlier testimony in-chief about Mr. Smith having difficulty inserting the mouthpiece with his hands several times was incorrect. After watching the video, he conceded that when Mr. Smith inserts the mouth tube with his hand (not his mouth) he has no problem at all.

It does not take him “several attempts” as he testified in his examination in-chief. He admitted that when Mr. Smith tried to insert the mouth tube with his mouth only, he had difficulty, but as soon as he used his hands, he inserted it quite easily and had no difficulty. [ 39 ] Constable Flowers further testified that upon reviewing the video that Mr. Smith had no problem standing up, maintaining his balance, sitting down, and leaning forward at least two times to use the breathalyzer, although he maintains that Mr. Smith was still unsteady when he walks back to his cell.

He further conceded that an individual may have bloodshot and glassy eyes if they are tired. Evidence of Robert Smith: [ 40 ] Mr. Smith is 42 years old. He is married and has a seven year old daughter. He has no criminal record. He is employed doing demolition work for Ontario Specialty Construction. He lives in Scarborough, Ontario. [ 41 ] Mr. Smith normally starts his day at 5:00 a.m., leaving his house at that time for a 7:00 a.m. shift. He usually picks up other co-workers on the way to work. He usually works approximately 44 hours per week, but Mr.

Smith testified that during the week of August 21, 2009, he worked overtime, and completed a number of 11 hour shifts. [ 42 ] Mr. Smith testified that on the morning of August 21, 2009, he left his house at 5:00 a.m. for work and finished work at approximately 2:00 p.m. on that day. After dropping off two co-workers after work, he then picked up a friend who asked Mr. Smith to deliver some empty beer bottles to the beer store (his friend did not have a car). Mr. Smith drove his friend to the beer store and then returned him to his home. Mr.

Smith testified that he consumed one bottle of beer at his friend’s home before returning to his home at approximately 4:00 p.m. [ 43 ] Mr. Smith testified that he arrived at his home shortly after leaving his friend’s home and then watched a number of his favourite television shows, as appeared to be his routine. He then left his house again to drive to Simcoe to meet some friends. He stopped on the way at an Esso gas station. [ 44 ] Mr.

Smith admitted that while driving on the QEW, he was swerving on the highway on at least two occasions and he further admitted to passing the two cars, as observed by the civilian witness. He testified that on the first occasion of swerving, he saw a little animal or group of animals resembling raccoons at the edge of the highway and he thought they were trying to cross the highway. He swerved into the middle lane from the right hand lane to avoid them. [ 45 ] On the second occasion that he swerved while driving, Mr.

Smith testified that he was talking to his brother on his cell phone and he reached over to get some paper out of his glove department while still talking to his brother, in order to write down some information that his brother was giving him. He testified that the car swerved as he was trying to talk to his brother on his cell phone and write something down on paper while driving. [ 46 ] Mr. Smith also recalls passing the two vehicles. He testified that he was in the right hand lane behind two cars and he moved into the middle lane, passed the two cars and moved into the right hand lane again.

He disagrees with the civilian witness’s description of this incident and denies cutting off the vehicle immediately behind him when he moved back onto the right hand lane. [ 47 ] Mr. Smith testified that when Constable Dellow pulled him over, he was once again talking to his brother on his cell phone. He dropped the cell phone onto the floor of his pick-up truck when Officer Dellow approached the vehicle. Mr. Smith testified that although the ‘hands free cell phone law’ was not yet in force, he was nervous. [ 48 ] Mr.

Smith further testified that he had the car parked in “neutral”, not “drive” because he had not pushed the gear stick all the way up when he stopped. He corrected this when Officer Dellow pointed out to him that his car was not in “park”. [ 49 ] Mr. Smith’s testimony regarding the coffee cup incident differs somewhat from Constable Dellow’s testimony. Mr. Smith testified that Constable Dellow approached his car window and asked him what he had to drink that night. Mr.

Smith testified that he retrieved his empty Tim Horton’s coffee cup, showed it to Constable Dellow and advised him that the coffee was all that he had to drink that night. Mr. Smith testified that he had purchased the coffee earlier that evening. He denies holding the empty coffee cup outside of his car window while Constable Dellow first approached the vehicle.

[50] Mr. Smith agrees that he had trouble getting his cell phone clipped onto his belt clip when he exited the car and that hedropped his cell phone on the ground trying to clip it onto his belt. However, he denies stumbling and falling forward. [51] Mr. Smith also testified that he was very tired and sleepy that night, having been up since 5:00 a.m. in the morning. Hetestified that he is usually in bed between 8 and 9 p.m. According to Constable Dellow’s testimony, Mr. Smith was pulled over by him atapproximately 9:43 p.m. that evening. [52] Mr. Smith testified in a straightforward and consistent manner.

His credibility was not diminished on cross-examination. Mr. Smith acknowledged his very bad driving that evening, and that he should not have been talking on his cell phone (which was not ahands-free phone), reaching into his glove department, and writing things down on paper while driving. Mr. Smith was consistent thatthe only alcohol he had consumed that day and evening was one beer and that his ability to drive was not impaired by alcohol.

ANALYSIS [53] This charge is a Criminal Code offence and as with all Criminal Code offences the onus is upon the Crown, on thetotality of the evidence, to prove the offence beyond a reasonable doubt in order for the accused to be found guilty of the offencecharged. [54] The Supreme Court of Canada has commented on the principle of proof beyond a reasonable doubt in several cases. In R.v. Lifchus (1997), 118 C.C.C. (3d) at para 24, Cory J. stated: Ordinarily even the most important decision of a lifetime is based upon carefully calculated risks.

They are made on the assumption thatcertain events will in all likelihood take place or that certain facts are in all probability true. Yet to invite jurors to apply to a criminaltrial the standard of proof used for even the important decisions in life runs the risk of significantly reducing the standard to which theprosecution must be held. Indeed, to like reasonable doubt in any way to daily activities weakens the special significance of the criminal standard of proof unique tothe legal process.

Later on in the Lifchus case the Supreme court of Canada held that the meaning of proof beyond a reasonable doubt is as follows: “thestandard of proof is higher than…a balance of probabilities yet less than proof to an absolute certainty”. In R. v. Starr (2000) 2000 SCC40 , 147 C.C.C. (3d) 449, the Supreme Court of Canada indicated that in order to convict, something less than absolute certaintyand something more than probable guilt is required.

The court further defined the reasonable doubt standard by explaining that it fallsmuch closer to absolute certainty than to proof on a balance of probabilities. [55] The case of R. v. Stellato (1993 (ON CA), 43 M.V.R. (2d) 120 (Ont. C.A.) sets out the test fordetermining impaired driving. The Criminal Code does not prescribe any specific test for determining impairment. Impairment is anissue of fact which a trial judge must decide on the evidence. The standard of proof is neither more nor less than that required for anyother element of a criminal offence.

Before convicting an accused of impaired driving, a trial judge must be satisfied, beyond areasonable doubt, that the accused’s ability to operate a motor vehicle was impaired by alcohol or drug. If the evidence establishesbeyond a reasonable doubt any degree of impairment, the offence has been made out. The Crown is not required to prove that theaccused’s conduct demonstrated a marked departure from that of a normal person.

As Justice Labrosse states at paragraph 14 of thedecision: “In all criminal cases the trial judge must be satisfied as to the accused’s guilt beyond a reasonable doubt before a conviction canbe registered. Accordingly, before convicting an accused of impaired driving, the trial judge must be satisfied that the accused’s abilityto operate a motor vehicle was impaired by alcohol or a drug. If the evidence of impairment is so fragile as to leave the trial judge with areasonable doubt as to impairment, the accused must be acquitted.

If the evidence of impairment establishes any degree of impairmentranging from slight to great, the offence has been made out.” [56] In assessing the evidence of impairment and applying the test enumerated in Stellato, and R. v. Andrews 1996 ABCA 23, [1996] A.J. No. 8 (Alta. C.A.), and other cases, the judge should not just look at each item of evidence in isolation, but mustlook at the totality of the evidence, to determine whether the Crown has proved the impairment alleged.

It may be that certain features ofthe evidence have possible explanations other than impairment, but the trial judge must still determine whether, on the whole of theevidence, all of those factors present in the same case, along with any unexplained observations, still leave a reasonable doubt as towhether the accused’s ability to operate a motor vehicle was impaired as alleged. [57] In this case, we have the following circumstantial indicia of impairment:

a) The erratic driving, including the weaving and the ‘floating’;

b) The odour of alcohol on Mr. Smith’s breath;

c) The bloodshot and glossy or glassy eyes;

d) Mr. Smith’s admission of the consumption of alcohol;

e) Mr. Smith’s “extreme unsteadiness on his feet”, including his swaying back and forth and dropping his cell phone;

f) Mr. Smith’s poor coordination.

[ 58 ] Mr. Smith testified and provided a reasonable explanation for the very bad driving and a possible explanation for his red and glassy eyes, given that he was very tired. There is no question that Mr. Smith’s driving that night was very bad. Mr. Sahulka for the defence submits that the civilian witness observed the bad driving and concluded that Mr. Smith was drunk; however, bad driving on its own is not proof of impairment, particularly when another explanation for the bad driving is provided. [ 59 ] I have also carefully considered the officers’ evidence of Mr.

Smith’s extreme unsteadiness on his feet, his swaying back and forth, and his poor coordination. I n particular, I have considered Constable Dellow’s evidence that he did not observe anything new at the police detachment and that Mr. Smith continued to be “ extremely unsteady” on his feet, including swaying back and forth. [ 60 ] However, this evidence is not consistent with the video evidence introduced. The video does not show any evidence of unsteady walking, poor coordination, swaying back and forth, or slurred speech. It is not possible to have a close view of Mr.

Smith’s eyes in the video to determine whether they are red and glassy (although Mr. Smith did provide a possible explanation for this physical symptom). There are no observations in the video that would indicate traditional indicia of impairment. Mr. Smith exhibits no signs of impairment at all on the video. [ 61 ] Defence counsel concedes that Mr. Smith is not being tried for being impaired in the police station at the time the video occurred-he is being tried for what allegedly occurred earlier: the operation of a motor vehicle on the road while impaired.

However, Constable Dellow testified that the detachment was only twelve minutes away from the roadside where Mr. Smith was arrested on the charge of impairment and where Constable Dellow formulated his reasonable and probable grounds for arrest. Constable Dellow further testified that Mr. Smith’s actions at the detachment were consistent with his actions at the roadside, including the “extreme unsteadiness” on his feet. The video does not demonstrate this and is in fact, the video is more consistent with Mr. Smith’s evidence that he was not impaired. [ 62 ] In R. v.

Palanacki , (2001). 22 M.V.R. (4 th) 104, [2001] O.J. No. 5194 (S.C.J.) , Justice Durno states the following: I agree with the Chief Justice that when the physical symptoms alone would not support a conviction, a trial judge must examine not only the driving pattern, but all of the evidence, including evidence of non-impairment, in assessing whether the Crown has satisfied the onus. This is consistent with the judgment of Hill J. in R. v. Elvikis (1997), 25 M.V.R. (3d) 256 (Ont. Ct. Gen.

Div.) , relied upon by the Crown, where His Honour found: Circumstantial evidence as to impairment, advanced by the Crown, whether driving conduct, physical symptomology or physical test results, or some combination thereof, will have probative value on the issue of impairment ability to drive a motor vehicle, more or less, depending upon the nature and strength of the evidence adduced. Items of circumstantial evidence are not to be viewed in isolation but the entirety of the evidence must be considered in determining whether the prosecution has discharged the burden of proof.” (emphasis added ) [ 63 ] In R. v.

Singh , [1997] O.J. No. 1164 (Gen. Div.) LeSage C.J. instructs the court to consider all of the evidence and balance the incriminating factors against the exonerating ones: It has been suggested that the learned trial Judge shifted the onus of proof. I do not believe he did.

He goes through the driving which is terrible and, then he states: "Combined with certain indicia of impairment, that you had consumed alcohol and there was a strong odour of it indicates that you are impaired." I have difficulty coming to that same conclusion and I have difficulty in agreeing with the learned trial Judge that a properly instructed jury could on this evidence be satisfied beyond a reasonable doubt that the accused was impaired. If one were to take the driving by itself and take the smell of alcohol with that driving, then perhaps there would be a basis upon which to found a conviction.

But when one looks at all of the other indicia which are more consistent with non impairment than they are with impairment, I believe it would be dangerous to base a conviction on that evidence.” [emphasis added]. [ 64 ] In conclusion, having carefully considered all of the evidence, I find that the Crown has not established the guilt of the accused beyond a reasonable doubt as required by law. The accused is therefore acquitted. [ 65 ] I thank both counsel for their helpful submissions. Released: February 10, 2011 Signed: “Justice S. O’Connell”