R v Cramer, 2019 SKCA 118

Court of Appeal for Saskatchewan Docket: CACR3189 Citation: R v Cramer , 2019 SKCA 118 Date: 2019-11-13 Between: Her Majesty the Queen Appellant (Respondent) And Jason Andrew Cramer Respondent (Appellant) Before: Richards C.J.S., Jackson and Tholl JJ.A. Disposition: Appeal dismissed Written reasons by: The Honourable Chief Justice Richards In concurrence: The Honourable Madam Justice Jackson The Honourable Mr. Justice Tholl On Appeal From: 2018 SKQB 298 , Regina Appeal Heard: April 12, 2019 Counsel: W. Dean Sinclair, Q.C., for the Appellant N. Chris MacLeod for the Respondent Richards C.J.S. I.

Introduction [ 1 ] Jason Cramer was convicted of impaired driving after a trial in Provincial Court. His conviction was subsequently overturned by a Queen’s Bench judge acting as a

summary conviction appeal judge [Appeal Judge] pursuant to s. 675 of the Criminal Code . The Appeal Judge concluded that, on the whole of the evidence, it had not been reasonable for the Provincial Court judge to have found Mr. Cramer guilty. The Crown now appeals to this Court, arguing that the Appeal Judge made a number of errors in his decision. [ 2 ] For the reasons given below, I would dismiss the Crown’s appeal. The Appeal Judge did not make the errors of law alleged by the Crown. II.

EVIDENTIARY background [ 3 ] Constable Stuart Keshane was driving just west of Regina near the intersection of Sandra Schmirler Way and 13th Avenue at about 2:00 a.m. on December 18, 2016. He saw a white SUV travelling east on 13th Avenue, passing Sandra Schmirler Way, heading into a residential area. Constable Keshane estimated that the vehicle was travelling 120–130 kilometres per hour. The speed limit was 50 kilometres per hour. [ 4 ] Constable Keshane decided to investigate and accelerated his vehicle in an effort to catch up to the SUV.

He saw the SUV start to slow down as it approached the back alley on the east side of Connaught Street and then saw it turn south into the back alley. By the time Cst. Keshane got to the alley, he could see the taillights of the SUV as it left the alley heading west on 14th Avenue. Constable Keshane put the police vehicle into reverse and backed up in a westerly direction to Connaught Street.

He could see headlights approaching from the south on the 2100 block of Connaught Street so he turned south to meet the vehicle. [ 5 ] Constable Keshane activated the emergency lights of his vehicle and the SUV came to a stop. He drove up beside the SUV and rolled his window down to speak to the driver. Mr. Cramer was the driver and he rolled down his window to speak to Cst. Keshane. Constable Keshane could see there were three other people in the SUV. Mr. Cramer advised Cst. Keshane that he had been drinking. Constable Keshane then told Mr.

Cramer to stay where he was and pulled the police vehicle around behind the SUV. He also radioed for assistance. [ 6 ] Constable Keshane approached the driver’s window. He asked Mr. Cramer to produce his driver’s licence and, as well, a rental agreement because the SUV had come up on his in-car device as being rented. He could smell alcohol coming from inside the SUV. Mr. Cramer retrieved the rental agreement from the glovebox and turned it over. Constable Keshane then saw Mr. Cramer having difficulties both in locating his driver’s licence in his wallet and in removing the licence from the wallet.

Constable Keshane testified that Mr. Cramer was “fumbling around”, looking at other pieces of identification or documents in the wallet before he finally found the licence. [ 7 ] After returning to the police vehicle and determining that Mr. Cramer’s licence was valid, Cst. Keshane came back to the SUV and asked Mr. Cramer to get out of that vehicle. When Mr. Cramer stood next to him, Cst. Keshane could smell a strong odour of beverage alcohol emanating from Mr. Cramer. He formed the opinion that Mr. Cramer’s ability to operate a motor vehicle was impaired by alcohol and informed Mr.

Cramer that he was under arrest for impaired driving. [ 8 ] Constable Veitch was the officer who subsequently made a breath demand on Mr. Cramer. Constable Veitch also testified that he located an open bottle of beer in the pocket of the driver’s door of the SUV shortly after Mr. Cramer was arrested.

[9] Mr. Cramer later provided two breath samples revealing his blood alcohol level to be 130 and 120 milligrams percent. He wascharged with both impaired driving and driving “over .08”. III. the trial decision [10] The trial judge began by dealing with the .08 side of the proceedings. He excluded the Certificate of Analysis because therewas no evidence that Cst. Keshane had told Cst. Veitch why he believed Mr. Cramer was impaired before Cst. Veitch made the breathdemand. As a result, Cst. Veitch had not had reasonable grounds to make the breath sample demand. The trial judge acquitted Mr. Cramerof the .08 charge.

He then turned his attention to the impaired driving charge. [11] The trial judge identified the evidence pointing to impairment as being (

a) Mr. Cramer driving 120–130 kilometres per hour ina residential 50 kilometre per hour zone, (

b) Mr. Cramer’s admission that he had consumed alcohol, (

c) the difficulty Mr. Cramer hadexperienced in getting his licence out of his wallet, and (

d) the strong smell of alcohol coming from Mr. Cramer. The trial judge also notedthat Mr. Cramer had demonstrated no problems with his balance, had not had slurred speech or bloodshot eyes, and, overall, had beenpolite and cooperative and had followed instructions properly. Citing R v Landes (1997), (SK KB), 161 Sask R 305(QB) [Landes], the trial judge went on to find that the speed Mr. Cramer had driven was significant evidence of poor judgment and thusimpairment.

The trial judge concluded, on the evidence as a whole, that the Crown had proven beyond a reasonable doubt that Mr.Cramer’s ability to operate a motor vehicle had been impaired by alcohol. IV. the appeal decision [12] Mr. Cramer appealed his conviction on the basis that the guilty verdict was unreasonable and not supported by the evidence (Rv Cramer, 2018 SKQB 298, 36 MVR (7th) 25 [Appeal Decision]). [13] The Appeal Judge began by reviewing the facts and summarizing the trial decision.

Then, referencing R v Villaroman, 2016SCC 33, [2016] 1 SCR 1000 [Villaroman], he confirmed the standard of review as being whether it had been reasonable for the trial judgeto have been satisfied that impairment was the only reasonable conclusion available on the totality of the evidence. [14] The Appeal Judge proceeded on the basis of the facts as found by the trial judge: (

a) Mr. Cramer’s driving at an estimated 120–130 kilometres per hour in a 50 kilometre per hour zone; (

b) Mr. Cramer’s trouble in removing his licence from his wallet; and (

c) thestrong smell of alcohol emanating from Mr. Cramer that confirmed his consumption of alcohol. The Appeal Judge then observed that hemust also consider the evidence weighing against impairment and the absence of evidence. In this regard, he noted that Mr. Cramer hadnot had bloodshot or glossy eyes or slurred speech and that he had been polite, cooperative and had followed instructions. Further, henoted there was no evidence of compromised balance or coordination, other than the fact Mr. Cramer had fumbled with his wallet. Withrespect to Mr.

Cramer’s driving, the Appeal Judge observed there had been no evidence of weaving, sudden braking, sharp turns, othererratic driving or suggestions of increased reaction times or diminished perception. [15] The Appeal Judge then reviewed the evidence relied upon to establish impairment. On this front, he observed that nervousnesswas an alternative explanation for Mr. Cramer fumbling to remove his licence from his wallet and that, having been drinking and thenbeing stopped by the police, there was a reason for Mr. Cramer to have been nervous.

Further, although accepting that speeding could becharacterized as aberrant driving, the Appeal Judge quoted appellate case authority for the proposition that many people drive over thespeed limit and that speed is, therefore, less indicative of an impaired ability to drive than, for example, weaving back and forth or drivingon the wrong side of the road. He noted that impairment was not the only reasonable explanation for Mr.

Cramer driving above the speedlimit. [16] By way of conclusion, the Appeal Judge found that the trial judge could not have reasonably concluded that the evidence as awhole excluded all reasonable alternatives to a finding of impairment. He summarized his analysis by writing as follows: [28] I am mindful of the direction in Villaroman that it is fundamentally for the trier of fact to draw the line that separates reasonabledoubt from speculation and that their assessment can be set aside only where it is unreasonable.

I am also mindful of the fact that the issueis not whether there are reasonable alternative explanations for the separate indicia that may signal impairment, but whether impairmentwas the only reasonable conclusion available on the totality of the evidence. However, with the greatest respect, it is my opinion that itwas not reasonable for the learned trial judge to conclude that the evidence as a whole excluded all reasonable alternatives to a finding thatthe appellant was impaired.

The evidence as a whole left open the plausible alternative that the accused fumbled because he was nervous,exuded a strong smell due to recent consumption, and was speeding because drivers sometimes speed. (Emphasis in original) V. analysis [17] This is an appeal taken pursuant to s. 839 of the Criminal Code. It allows for an appeal to this Court, with leave, on any groundthat involves a question of law alone. The Crown was granted leave to appeal on two grounds.

The first is an allegation that the AppealJudge misinterpreted the trial judge’s reasons and wrongly read them as meaning the trial judge had found nervousness on the part of Mr.Cramer while he was in detention to have been an indicium of impairment. The second ground is a contention that the Appeal Judgeapplied the wrong standard of review in dealing with the matter before him. Before considering the merits of these submissions, it will beuseful to confirm some of the basic legal principles at play in this appeal. A. Basic Principles

[18] At the time of the matters in issue here, s. 253(1)(

a) of the Criminal Code (now repealed) provided that it was an offence for aperson to operate a motor vehicle “while the person’s ability to operate the vehicle … is impaired by alcohol or a drug”. [19] In order to secure a conviction under s. 253(1)(a), the Crown was required to prove, beyond a reasonable doubt, that the abilityof the accused to operate a motor vehicle was impaired by alcohol or drugs at the time of the driving at issue. [20] Any degree of impairment in the ability to operate a motor vehicle, even a slight impairment, is sufficient to sustain aconviction. The impairment need not be marked.

See: R v Stellato (1993), (ON CA), 78 CCC (3d) 380 (Ont CA) at384, as approved by the Supreme Court of Canada, (SCC), [1994] 2 SCR 478. [21] The issue of impairment must be adjudicated by taking into account the whole of the relevant evidence. Behaviour that is amarked departure from normal will typically carry more probative weight than behaviour that is not a marked departure. However, there isno bright line that says impairment can only be inferred from behaviour that is a marked departure from the norm.

Justice Jackson put itthis way in R v Hall (1994), (SK CA), 125 Sask R 62 (CA): [8] Hence the importance of Labrosse, J.A.’s words (at p. 384): “[i]f the evidence of impairment is so frail as to leave the trial judgewith a reasonable doubt as to impairment, the accused must be acquitted. If the evidence of impairment establishes any degree ofimpairment ranging from slight to great, the offence has been made out”. The essence of Stellato (and the cases referred to therein, e.g., R.v.

Campbell (W.S.) (1991), (PE SCAD), 87 Nfld. & P.E.I.R. 269; 271 A.P.R. 269; 26 M.V.R. (2d) 319 (P.E.I.C.A.)) isto avoid the application of some rigid standard which might deprive the trier of fact of determining on all the facts whether an accused wasindeed impaired. The trier of fact no longer asks the question: does the accused’s behaviour or physical characteristics represent a markeddeparture from the norm. A trier of fact may be able to infer impairment from behaviour which is far outside the norm, but if suchbehaviour is not present, impairment may be inferred, in the appropriate case, from something less.

The trier of fact must, of course, besatisfied beyond a reasonable doubt that the accused’s ability to operate a motor vehicle was impaired. (Stellato, before its approval by theSupreme Court of Canada, was followed by R. v. White (G.) (1994), 1994 NSCA 77 , 130 N.S.R. (2d) 143; 367 A.P.R. 143;28 C.R. (4th) 160 (C.A.)). (Emphasis added) B. Did the Appeal Judge misinterpret the trial decision? [22] As noted, the Crown’s first line of attack in this appeal involves a submission that the Appeal Judge misinterpreted the trialjudge’s reasons for decision by reading them as meaning the trial judge had found Mr.

Cramer’s nervousness while in detention to havebeen an indicium of impairment. I agree with the Crown’s argument on this point. However, the Appeal Judge’s misreading of the trialdecision is of no effect because it had no impact on his conclusions. Let me explain. [23] In his decision, the trial judge stated that “[t]he detention video audio [sic] of Mr. Cramer did not reveal any other obvioussigns of impairment, other than showing that Mr. Cramer was nervous and concerned”. The Appeal Judge took this comment to mean that,in deciding to convict Mr. Cramer, the trial judge had considered Mr.

Cramer’s nervousness and concern while in detention to have beenan “obvious sign of impairment” and as something weighing in favour of a finding of guilt. The Appeal Judge, in the course of his ownanalysis, then went on to observe that nervousness was not an obvious sign of impairment because Mr. Cramer’s nervousness might alsobe explained, for example, by the simple fact of his arrest. [24] The Appeal Judge appears not to have properly appreciated that, before referring to Mr.

Cramer’s nervousness and detention,the trial judge had specifically identified and listed the signs of impairment that he was going to consider in deciding if it had been proventhat Mr. Cramer’s ability to drive had been impaired by alcohol: (

a) his high-speed driving; (

b) his admission that he had consumedalcohol; (

c) the trouble he had experienced in retrieving his driver’s licence; and (

d) the smell of alcohol emanating from him. Therefore,as a I read the trial judge’s decision, he did not have regard to Mr. Cramer’s nervousness in custody when making his decision as towhether Mr. Cramer had been impaired. Accordingly, I agree with the Crown’s submission that the Appeal Judge was in error to theextent he concluded otherwise. [25] However, none of this is of any ultimate consequence. The question before the Appeal Judge was whether the trial judge hadrendered an unreasonable verdict.

In considering that issue, the Appeal Judge took into account the same evidence as had the trial judge.Neither of them took into account Mr. Cramer’s nervousness while in custody. Thus, the Appeal Judge’s comments about thesignificance, or not, of Mr. Cramer’s nervousness while in custody were ultimately neither here nor there. C.

Did the Appeal Judge apply the wrong standard of review? [26] The Crown acknowledges that the Appeal Judge properly instructed himself as to the applicable standard of review when,referring to Villaroman, he framed the issue before him as being whether it had been reasonable for the trial judge to have concluded that,on the totality of the evidence, the only reasonable conclusion available was that Mr. Cramer’s ability to drive had been impaired.However, the Crown goes on to argue that, in the practical business of answering the question he had posed, the Appeal Judge left the railsand committed two errors.

First, it says the Appeal Judge wrongly reconsidered the weight that should be assigned to particular pieces ofevidence. Second, the Crown contends the Appeal Judge improperly interfered with the trial judge’s “preliminary findings of fact”. I willdeal with each of those points in turn. 1. Reconsidering the weight of the evidence [27] The Crown contends the Appeal Judge erred by referring to the evidence that Mr. Cramer had not had bloodshot or glossy eyes,had not slurred his speech, and had not had difficulty maintaining his balance or following instructions.

It contends that, because the trialjudge heard and considered this same evidence, it was not open to the Appeal Judge to “reconsider the weight that should have beenassigned to each item of evidence” and that it was an error for the Appeal Judge to “question the reasonableness of the verdict by citing

those factors and giving them more weight than the trial judge did”. I am not persuaded by this line of argument. [28] In coming to his decision, the trial judge specifically noted the absence of certain kinds of evidence. As noted above, heobserved that Mr. Cramer had experienced no problems with his balance, had not had slurred speech or bloodshot eyes, had not revealedvarious other signs of impairment, had been polite and cooperative, and had followed instructions properly. It is readily apparent that thetrial judge put these considerations on the scale in deciding whether Mr.

Cramer’s ability to drive a motor vehicle had been impaired.However, it is, of course, impossible to know what specific weight the trial judge attached to them. [29] As indicated, the issue before the Appeal Judge was whether the trial judge’s guilty verdict was unreasonable. In order toanswer that question, the Appeal Judge was required “to review, analyse and, within the limits of appellate disadvantage, weigh theevidence”. See: R v Biniaris, 2000 SCC 15 at para 36, [2000] 1 SCR 381 [Biniaris].

As put by McIntyre J. in R v Yebes, (SCC), [1987] 2 SCR 168 at 186 [Yebes], in order to apply the test for an unreasonable verdict, the Appeal Judge had to “re-examine andto some extent reweigh and consider the effect of the evidence”. In so doing, it was necessary for the Appeal Judge to consider not onlythe evidence that positively suggested impairment but also the evidence weighing against impairment and the absence of evidence as well.That is so because reasonable doubt “is a doubt based on reason and common sense which must be logically based upon the evidence orlack of evidence”.

See: R v Lifchus, (SCC), [1997] 3 SCR 320 at para 30. [30] In the course of his efforts to decide whether the guilty verdict was unreasonable, the Appeal Judge referred to the sameevidence, and the same absences of evidence, as had been considered by the trial judge. The Appeal Judge then took all of that intoaccount in concluding the guilty verdict was unreasonable. This was not an error. In light of Biniaris and Yebes, the Appeal Judge wasentitled, and indeed required, to do just that, i.e., to re-examine and to some extent reweigh and consider the evidence.

This, as explained,involved considering the effect of the lack of evidence as well. [31] As a bottom line, therefore, I am unable to see how the Appeal Judge can be said to have committed an error of law byreweighing the evidence (or absence of evidence) considered by the trial judge. In general terms, he was doing what he was required to doin order to assess the reasonableness of the conviction. 2. Preliminary findings of fact [32] The Crown also submits that the Appeal Judge erred in law by interfering with or varying what it describes as the trial judge’s“reasonable preliminary findings of fact”.

In this regard, the Crown contends the trial judge was obliged to proceed in two stages: (

a) toconsider whether the reasonable indicia of impairment were related to Mr. Cramer’s consumption of alcohol; and (

b) to then considerwhether the indicia of alcohol-related impairment proved that Mr. Cramer’s ability to operate a motor vehicle had been impaired byalcohol. The Crown goes on to say the trial judge had determined that both the speed of Mr. Cramer’s driving and his fumbling to retrievehis licence were attributable to alcohol consumption and that, as a result, it was an error for the Appeal Judge to have speculated aboutwhether there might have been an alternative explanation for the speeding and the fumbling.

The Crown contends the Appeal Judge wasrequired to accept that the speeding and the fumbling were alcohol-related and to proceed from there to consider whether the verdict wasreasonable. In its view, the Appeal Judge “varied the facts to eviscerate the probative value of the alcohol impairment symptoms the trialjudge relied on”. [33] The Crown is correct in indicating the Appeal Judge did not proceed on the basis that Mr. Cramer’s speeding or his fumblingwith his wallet were each, in and of themselves, necessarily attributable to alcohol consumption.

In considering that evidence, the AppealJudge observed that many people speed and that impairment by drugs or alcohol is not the only explanation for why an individual mightdrive faster than is lawful. Similarly, the Appeal Judge observed that nervousness, as opposed to alcohol consumption, might explain whyMr. Cramer had fumbled when extracting his licence from his wallet. [34] This said, I do not see the Appeal Judge’s approach as involving a failure to properly respect findings of fact made by the trialjudge.

In order to explain this conclusion, it is useful to look more closely at the trial judge’s reasons for decision. The essential part ofthem, as found in the transcript, is set out below. I have added paragraph numbers: [1] The signs of impairment in this case that crucially were gathered before the -- the demand was made that I have found andaccepted are as follows:

(1) Mr. Cramer was driving at an estimated speed of 120 to 130 kilometres per hour in a residential 50 kilometreper hour zone;

(2) Mr. Cramer admitted to drinking alcohol;

(3) Mr. Cramer had trouble getting his driver’s licence out of his wallet, and;(4) the strong smell of alcohol coming from Mr. Cramer. [2] I find that Mr. Cramer had no problems with his balance, there was no slurred speech, and he did not have bloodshot eyes. Thedetention video audio of Mr. Cramer did not reveal any other obvious signs of impairment, other than showing that Mr. Cramer wasnervous and concerned. I also find that Mr. Cramer was overall polite, cooperative, and followed instructions properly.

At paragraph 19 ofLandes, the Court provides the following regarding the manner of driving, and I quote: (As Read) It is well established that erratic driving may evidence impairment of the driver’s mental faculties or physical capability, or both, to drive amotor vehicle due to the effects of alcohol. However, before any driving may be classified as “erratic”, it must be referable, in the contextof all of the evidence, to the impairment of the driver’s skills by alcohol and not to another cause, example, mere negligence.

ConstableBriant testified people run stop signs when they are sober, and when they do, accidents often occur. A similar observation may beconcerning the quick turn and loss of control. The reference to speed of at least 60 kilometres per hour has little probative value in theabsence of evidence as to the posted speed limit for the thoroughfares in question. [3] I find that the speed at which Mr.

Cramer was driving the vehicle was significant evidence of poor judgment, and thus impairment.His driving was erratic when I consider that he admitted drinking, had trouble getting his driver’s licence out of his wallet, and smelledstrongly of alcohol. It is referable to his impairment and not to mere negligence. A reasonable person would conclude that Mr. Cramer’sability to operate a motor vehicle was -- was impaired by alcohol to a degree that was greater than slight. [4] I conclude, based on the evidence as a whole, that the Crown has proven beyond a reasonable doubt that Mr.

Cramer’s ability tooperate a motor vehicle was impaired by alcohol. Therefore, I find Mr. Cramer guilty of operating a motor vehicle while impaired by

alcohol, contrary to Section 253(1)(

a) of the Criminal Code. That marks the end of my decision. [35] In proceeding as he did, the trial judge clearly made several findings of fact on the way to concluding that Mr. Cramer haddriven while his ability to do so was impaired by alcohol. Most significantly for present purposes, the trial judge found that Mr. Cramerhad driven an estimated 120–130 kilometres per hour, that Mr. Cramer had admitted to drinking alcohol, that Mr. Cramer had experienceddifficulty in taking his licence from his wallet, and that Mr. Cramer had smelled strongly of alcohol.

The trial judge also found that Mr.Cramer had not had problems with balance, slurred speech and so forth. These were all preliminary-type findings of fact that, in theabsence of palpable and overriding error, the Appeal Judge was bound to accept. See: R v Le, 2019 SCC 34 at paras 23 and 206. And, asdiscussed above, the Appeal Judge did just that. He proceeded on the basis of the trial judge’s findings on these points. [36] I do not accept that the trial judge took the extra step involved in the Crown’s characterization of his reasoning.

In other words,I do not accept that, in relation to the various matters noted in his decision as pointing in the direction of impairment, the trial judge wenton to find that each was related to alcohol consumption and not possibly related to anything else. As I read paragraph 1 of his decision, thetrial judge listed the evidence that pointed in the direction of impairment. Next, in the first part of paragraph 2, he listed the evidence thatpointed the other way, i.e., that tended to suggest Mr. Cramer had not been impaired.

Then, in paragraphs 3 and 4 (after dealing withLandes – an issue to which I will return shortly), the trial judge did what might be expected. He looked at the evidence as a whole andthen, and only then, made his decision that Mr. Cramer’s ability to drive had been impaired by alcohol. He made no preliminary findingthat Mr. Cramer’s speeding and his fumbling with his wallet could only be attributable to alcohol consumption. [37] The trial judge’s reference to Landes in the last part of paragraph 2 of his analysis and his treatment of the evidence of speedingin paragraph 3 requires some further examination.

In Landes, Klebuc J. (as he then was) wrote that “before any driving may be classifiedas ‘erratic’, it must be referable, in the context of all of the evidence, to the impairment of the driver’s skills by alcohol and not to anothercause, e.g., mere negligence” (at para 19). The trial judge was presumably attempting to act on this part of Landes when he stated that“[Mr. Cramer’s] driving was erratic … [i]t is referable to his impairment and not to mere negligence”. Significantly, however, the trialjudge spoke of Mr. Cramer’s driving being referable to his impairment not, as Landes would have it, referable to Mr.

Cramer’s alcoholconsumption. Accordingly, the trial judge’s conclusion on this point cannot be seen as relating to a “preliminary” finding of fact regardingalcohol consumption as contended by the Crown. It did not reference alcohol consumption at all. In my view, this aspect of the trialjudge’s reasons is best seen as relating directly to the ultimate question, i.e., the question of Mr. Cramer’s impairment.

As a result, theAppeal Judge had no obligation to defer to the trial judge on this point beyond whatever deference was involved in the fact that he wasreviewing the conviction for its reasonableness as opposed to its correctness. On this front, impairment was the very issue the AppealJudge was obliged to grapple with. He did not fail to respect a finding of fact made by the trial judge. [38] That said, Landes warrants some further comment.

I do not understand it as directing, and it should not be read as directing,that in every case involving an impaired driving charge, a trial judge must make a discrete preliminary determination as to whether theaccused’s bad or erratic driving, if there was any, can be referable only to drug or alcohol consumption. Any such approach would beinconsistent with the notion that evidence is not to be considered in a piecemeal fashion. See, for example: R v Ménard, (SCC), [1998] 2 SCR 109 at para 23. Rather, a trial judge should consider evidence of bad or erratic driving along with all other relevantevidence.

The question for a trial judge is whether, on the whole of the evidence, it has been established beyond a reasonable doubt thatthe accused’s ability to drive was impaired by drugs or alcohol. There is no obligation to make a preliminary determination as to whetherbad or erratic driving, or any other aspect of the evidence, can be attributed only to the consumption of drugs or alcohol. [39] There could, of course, be cases where erratic or bad driving is explained as being attributable to something other than drugs oralcohol.

For example, evidence might be called to demonstrate that swerving from side-to-side while driving was caused by a flat tire orevidence might be called to show that proceeding through a red light was caused by a brake failure. In those kinds of situations, it isobvious that the evidence of erratic or bad driving will ultimately add little or no weight to the Crown’s side of the balance on the questionof whether the accused’s ability to drive had been impaired by drugs or alcohol.

But, this reality is something different than the suggestionthat the issue of whether bad or erratic driving is attributable to alcohol consumption should be formally broken out as a separate andpreliminary piece of analysis in the consideration of whether an accused person’s ability to drive was impaired by drugs or alcohol. [40] In the end, I am not persuaded that the Appeal Judge erred in law by failing to respect preliminary findings of fact made by thetrial judge. VI. conclusion [41] I conclude that the Crown’s appeal must be dismissed.

While the Appeal Judge misread the trial judge’s reasons on the issue ofnervousness, that had no impact on the bottom line of the Appeal Decision and is therefore not a basis for intervention by this Court.Further, the Appeal Judge did not apply the wrong standard of review. “Richards C.J.S.” Richards C.J.S.I concur. “Jackson J.A.” Jackson J.A.I concur. “Tholl J.A.” Tholl J.A.