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

• < Criminal Law
• < Offences
• < Operation While Impaired by Alcohol or Drug

General Principles

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

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.

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. The judge should not assume that mere impairment of any functional ability is equivalent to impairment by alcohol.

Where fatigue is combined with alcohol, the only issue is whether the alcohol was a contributing factor to the impairment.

Burden and Standard of Proof

Impairment must be proven beyond a reasonable doubt.

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.

Impairment cannot be inferred merely by the readings from the breath sample results. 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. Proof of the actus reus alone is sufficient to create a presumption that the accused intended to operate while impaired.

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. This would include circumstantial evidence alone or equivocal evidence of impairment that shows only a “slight deviation from normal conduct”.

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. The judge instead must consider the "totality of the evidence" to determine impairment.

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.

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.

Physical Signs of Impairment

Factors to consider include:

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

Field Sobriety Tests

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

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

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

See Also

• Proof of Impairment by Drugs