Proof of Impairment by Alcohol (Prior to December 13, 2018)

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General Principles

See also: Proof of Impairment by Drugs (Prior to December 13, 2018)

The Crown need only prove any degree of impairment of the person's ability to drive, not matter how great or minor. [1]

Impairment refers to the physiological effect of alcohol upon the mind. This is separate from intoxication, which refers to the observable physical signs of impairment. [2]

Note, however, impairment is relative to a particular task. It is not simply a degree of general impairment but rather the accused's ability to drive is impaired and that the impairment is caused by alcohol or a drug.[3] The judge should not assume that mere impairment of any functional ability is equivalent to impairment by alcohol.[4] here fatigue is combined with alcohol, the only issue is whether the alcohol was a contributing factor to the impairment.[5]

Burden and Standard of Proof

Impairment must be proven beyond a reasonable doubt.[6]

  1. R v Stellato, 1993 CanLII 3375 (ON CA), (1993), 78 CCC (3d) 380 (Ont. C.A.), per Labrosse JA; affirmed 90 CCC (3d) 160 (SCC), 1994 CanLII 94 (SCC), per Lamer CJ
    R v Brannan, 1999 BCCA 669 (CanLII), (1999), 140 CCC (3d) 394, per Donald JA ("the test for driving while impaired contrary to s. 253(a) is any impairment")
    see also R v Pijogge, 2012 NLTD(G) 94, 2012 CanLII 35597 (NL SCTD), per Stack J
    R v White, 2004 NLSCTD 9 (CanLII), (2004), 50 M.V.R. (4th) 177 (NLSC), per LeBlanc J
    R v Loveman, 2005 NLTD 51 (CanLII), (2005), 15 M.V.R. (5th) 280 (NLSC), per Schwartz J
    R v Thompson, 2012 ONCJ 377 (CanLII), per Nadel J, at para 13
  2. See R v Andrews, 1996 CanLII 6628 (AB CA), [1996] AJ No 8 (ABCA), per Conrad JA in the analysis section discussing this difference
  3. As observed in R v Raven, [1999] OJ No 48 (Gen. Div.)(*no CanLII links) , per Durno J, at paras 47 and 50: it is incorrect to read Stellato as requiring only proof of a slight degree of impairment by alcohol as opposed to a slight degree of impairment of one’s ability to operate a motor vehicle as a result of the consumption of alcohol
  4. Andrews, supra, at para 17 (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.")
    R v Sampson, 2009 NSSC 191 (CanLII), [2009] NSJ No. 280, per Beveridge J
  5. R v Christopher, (1982) BCJ No. 2008 (BCCA)(*no CanLII links) , at para 2-5
    R v Pelletier, 1989 CanLII 4823 (SK QB), (1989) SJ No. 493 (Sask. Q.B.), per Batten J
    R v Payette, 1991 CanLII 1746 (BC SC), (1991) BCJ No. 795 (BCSC), per Cowan J, at paras 2 to 3
    R v Barry, 1991 CanLII 2377 (BC SC), (1991) BCJ No. 2212 (BCSC), per Cohen J
    R v Bartello, (1996) OJ No. 1000 (OCJ)(*no CanLII links) , appeal dismissed, (1997) OJ No. 2226 (ONCA), 1997 CanLII 1025 (ON CA), per curiam, at 22
    R v Isley, 1997 CanLII 1459 (BC SC), (1997) BCJ No. 2678 (BCSC), per Sigurdson J, at para 23
    R v Cosentino, 2008 CanLII 68102 (ON SC), (2008) OJ No. 5263 (ONSC), per Durno J at 54, 92-93
  6. R v Czarnecki, 2000 MBQB 42 (CanLII), 2000 Carswell Man. 215 (Q. B.), per Hamilton J
    R v Stellato, 1994 CanLII 94 (SCC), [1994] 2 S. C. R. 478, per Lamer CJ

Evidence

To prove any degree of impairment of ability to drive, the crown should present evidence of aberrant driving and consumption of alcohol. If evidence of driving is not available there is greater responsibility of establishing impairment through signs of the accused.[1]

Impairment cannot be inferred merely by the readings from the breath sample results.[2] A judge cannot take judicial notice that a certain reading necessarily means that the person is impaired.

It is not necessary to prove that the driver intended to become impaired.[3] Proof of the actus reus alone is sufficient to create a presumption that the accused intended to operate while impaired.[4]

Where the evidence of impairment is equivocal on the totality of evidence, it would be dangerous to conclude beyond a reasonable doubt that there was impairment.[5] This would include circumstantial evidence alone or equivocal evidence of impairment that shows only a “slight deviation from normal conduct”.[6]

Odour of Alcohol Alone

The odour of alcohol alone is not sufficient evidence to support a finding of impairment. It is not criminal simply to consume alcohol and driving.[7] The judge instead must consider the "totality of the evidence" to determine impairment.[8]

Circumstances and Timing of Observations

Observations of an accused made during their compelled participation in an investigation, such as during pullover investigative detention, cannot be admissible for the purpose of proving impairment as it in only admissible for proving the officer's grounds.[9]

Observations While Performing Sobriety Test

Any observations made while an accused is performing a mandatory sobriety test cannot be used to prove impairment because it is a compelled and violates the rule against self-criminating evidence.[10]

  1. R v Polturak, 1988 ABCA 306 (CanLII), (1988), 90 A.R. 158, 61 Alta. L.R. (2d) 306 (C.A.), per Stratton JA, at para 3
    R v Beals (1956), 25 C.R. 85, 117 CCC 22 (NSCA), 1956 CanLII 534 (NS SC), per Doull J
    R v E(AL), 2009 SKCA 65 (CanLII), 359 Sask. R. 59, per Wilkinson JA
    R v Thomas, 2012 SKCA 30 (CanLII), per Caldwell JA, at para 13
  2. see R v Letford, 2000 CanLII 17024 (ON CA), [2000] OJ No 4841 (C.A.), per Goudge JA
  3. R v Pomeroy, 2007 BCSC 142 (CanLII), [2007] BCJ No. 170 (S.C.), per Romilly J, at para 44
    R v Mavin, 1997 CanLII 14625 (NL CA), (1997), 154 Nfld & P.E.I.R. 242, per Marshall JA, at para 37
  4. R v King, 1962 CanLII 16 (SCC), [1962] SCR 746, per Ritchie J
    R v Lamha, 2011 ABPC 303 (CanLII), per Rosborough J -- impaired by a mix of drugs
  5. R v Peterson, 2009 ONCJ 61 (CanLII), [2009] OJ No. 671, per Green J at 35 citing R v Andrews, 1996 CanLII 6628 (AB CA), per Conrad JA
  6. Andrews, ibid.
  7. R v Uduma, 2019 ONSC 2350 (CanLII), per Barnes J, at para 28 ("The odour of alcohol alone is insufficient to support a finding of impairment")
    R v Landes (1997), 1997 CanLII 11314 (SK QB), 161 Sask. R. 305, per Klebuc J, at para 21
    R v Hawkins, [2015] O.J. No. 3446 (C.J.)(*no CanLII links) , at para 38
    R v Logan, 2006 CanLII 20536 (ON SC), [2006] O.J. No. 2445 (S.C.), per Tulloch J
    R v Martin, 2016 ONCJ 799 (CanLII), per Bourgeois J, at paras 41 to 42
  8. Uduma, supra, at para 28
    Andrews, supra, at para 28
  9. R v Phipps, 2010 ABQB 661 (CanLII), per Moreau J
  10. R v Uduma, 2019 ONSC 2350 (CanLII), per Barnes J, at para 36 ("An observation made while an accused is taking a sobriety test is inadmissible at trial because the accused has been compelled to participate in activity that produces self-incriminating evidence")
    R v Milne (1996), 1996 CanLII 508 (ON CA), 28 O.R. (3d) 577 (C.A.), per Moldaver JA, at paras 40 to 47, leave to appeal to SCC refused, [1996] S.C.C.A. No. 353
    R v Quenneville, 2009 ONCA 325 (CanLII), per curiam
    R v Brode, 2012 ONCA 140 (CanLII), 109 O.R. (3d) 481, per Epstein JA, at paras 57 to 63
    R v Bijelic, 2008 CanLII 17564 (ON SC), [2008] O.J. No. 1911 (S.C.), per Hill J, at para 31

Physical Signs of Impairment

Factors to consider include:[1]

  1. erratic or abnormal driving
  2. blood-shot or watery eyes
  3. flushed face
  4. odour of alcoholic beverage
  5. slurred speech
  6. a deterioration of the accused’s judgement, attention, or comprehension
  7. a loss of motor co-ordination or control,
  8. increased reaction times,
  9. diminished sensory perceptions, or
  10. inappropriate or abusive behaviour

Observations of impairment:

Odour of alcohol Faint
moderate
strong

beer
spirits
wine
Attitude excited
combative
polite
talkative
indifferent
profane
carefree
insulting
sleepy
cooperative
Eyes normal
bloodshot
glossy
lacking focus
Speech normal
stuttering
slurred
rambling
thick-tongued
Walk normal
swaying
staggering
falling
Balance normal
swaying
sagging
Unusual symptoms none
crying
belching
vomiting
hiccuping
Clothes orderly
disorderly
soiled
  1. See R v Landes, 1997 CanLII 11314 (SK QB), [1997] SJ 785 (SKQB), per Klebuc J, at para 16

Field Sobriety Tests

See also: Forthwith Under Section 254

254.
...

Testing for presence of alcohol or a drug

(2) If a peace officer has reasonable grounds to suspect that a person has alcohol or a drug in their body and that the person has, within the preceding three hours, operated a motor vehicle or vessel, operated or assisted in the operation of an aircraft or railway equipment or had the care or control of a motor vehicle, a vessel, an aircraft or railway equipment, whether it was in motion or not, the peace officer may, by demand, require the person to comply with paragraph (a), in the case of a drug, or with either or both of paragraphs (a) and (b), in the case of alcohol:

(a) to perform forthwith physical coordination tests prescribed by regulation to enable the peace officer to determine whether a demand may be made under subsection (3) or (3.1) and, if necessary, to accompany the peace officer for that purpose; and
(b) to provide forthwith a sample of breath that, in the peace officer’s opinion, will enable a proper analysis to be made by means of an approved screening device and, if necessary, to accompany the peace officer for that purpose.

...
R.S., 1985, c. C-46, s. 254; R.S., 1985, c. 27 (1st Supp.), s. 36, c. 1 (4th Supp.), ss. 14, 18(F), c. 32 (4th Supp.), s. 60; 1999, c. 32, s. 2(Preamble); 2008, c. 6, s. 19.

CCC


Note up: 254(2)

Section 254(2.1) permits the police to make a video recording of the test:

254...

Video recording

(2.1) For greater certainty, a peace officer may make a video recording of a performance of the physical coordination tests referred to in paragraph (2)(a).
...
R.S., 1985, c. C-46, s. 254; R.S., 1985, c. 27 (1st Supp.), s. 36, c. 1 (4th Supp.), ss. 14, 18(F), c. 32 (4th Supp.), s. 60; 1999, c. 32, s. 2(Preamble); 2008, c. 6, s. 19.

CCC


Note up: 254(2.1)

Evaluation for drugs has similar requirements as 254(2) and (2.1) found in (3.1) and (3.2). [1]

See Also