R. v. Peterson

Canadian criminal law case law consists of court rulings and decisions from past judicial hearings and appeals.

These precedents guide courts and judges to interpret laws, especially when similar circumstances arise with a case before them.

If a current case closely resembles one with past withdrawn charges, the same legal reasoning should apply. This process ensures that similar cases receive consistent treatment.

In the Ontario Court of Justice case involving Mark Peterson, the background centers on an incident that occurred in September 2007 in Toronto.

Peterson was driving on the Danforth when his behavior caught the attention of police officers due to his vehicle’s slow speed and weaving within its lane. Upon following Peterson to a gas station, the officers observed him displaying signs that suggested impairment, such as leaning on his truck for balance and slurred speech. Additionally, there was an open can of alcohol in his vehicle, and Peterson admitted to having consumed several beers that evening. Based on these observations, the police arrested Peterson for impaired driving.

Subsequent Intoxilyzer tests at the police station revealed that his blood alcohol concentration was significantly over the legal limit, leading to an additional charge of driving with a BAC over 80. The defence raised several Charter-related issues during the trial, particularly focusing on unreasonable search and seizure and the right to counsel, which played a pivotal role in the case’s outcome.

The court’s decision in the case of Her Majesty the Queen versus Mark Peterson, heard in the Ontario Court of Justice, revolved around two primary issues: the alleged breach of the Canadian Charter of Rights and Freedoms concerning unreasonable search and seizure (Section 8) and the right to counsel (Section 10(b)).

Unreasonable Search and Seizure (Section 8): The court examined whether the warrantless seizure of Peterson’s breath samples was reasonable. The judge concluded that the arresting officer had reasonable and probable grounds to believe that Peterson had been driving while impaired, thus satisfying the requirements of Section 8. Therefore, there was no breach of Peterson’s rights regarding unreasonable search and seizure.

Right to Counsel (Section 10(b): The critical issue was whether Peterson’s Section 10(b) rights were violated when he requested to speak to his lawyer during the second breath test and was denied.
The court found that this denial constituted a breach of Section 10(b). As a result, the breath test results, which were crucial evidence for the “over 80” charge, were excluded under Section 24(2) of the Charter.

Impaired Driving Charge: Despite the initial arrest and breath-test demand being upheld, the court found the evidence of Peterson’s impaired driving equivocal and insufficient to prove beyond a reasonable doubt. The judge noted that the indicators of impairment, such as Peterson’s weaving within the lane and leaning on his vehicle, were not compelling enough when considered in their totality.

Conclusion and Verdict: Peterson was found not guilty on both counts: impaired driving and driving with a blood alcohol concentration over the legal limit.  The case highlighted the importance of upholding Charter rights during legal proceedings and demonstrated how breaches of these rights could significantly impact the outcome of a case.

The decision in the case of Her Majesty the Queen versus Mark Peterson carries significant implications for Canadian law, particularly in the context of impaired driving cases and the enforcement of Charter rights:

Reaffirmation of Charter Protections: The case underscores the importance of upholding the Canadian Charter of Rights and Freedoms, especially regarding the rights to counsel (Section 10(b)) and protection against unreasonable search and seizure (Section 8). It emphasizes the need for law enforcement to adhere strictly to these rights during DUI investigations and arrests.

Exclusion of Evidence for Charter Breaches: The decision demonstrates the court’s willingness to exclude key evidence, such as breathalyzer results, if obtained in violation of Charter rights. This sets a precedent that the improper conduct of a DUI investigation can lead to significant consequences for the prosecution’s case.

Impact on Law Enforcement Procedures: The verdict may influence police training and procedures, ensuring officers understand the critical nature of Charter rights during arrests and investigations. It highlights the need for proper and timely communication of rights to individuals under arrest and the necessity of fulfilling requests to contact legal counsel.

Standard of Proof in DUI Cases: The case illustrates the high standard of proof required in criminal cases, particularly for DUI charges. It reaffirms that mere suspicion or minimal signs of impairment may not be sufficient to meet the burden of proof beyond a reasonable doubt.

Influence on Future Legal Challenges: The decision provides a framework for future legal challenges in DUI cases, especially where there are allegations of Charter rights violations. It underscores the potential for defense strategies focusing on procedural errors or rights violations rather than disputing the factual basis of the charges.

Balancing Public Safety and Individual Rights: The case reflects the ongoing challenge in Canadian law of balancing public safety concerns, particularly related to impaired driving, with the protection of individual rights and freedoms. It highlights the judiciary’s role in ensuring that law enforcement practices do not override constitutional protections.

Overall, this decision reinforces the importance of the Charter in the Canadian legal system and its impact on the administration of justice, especially in cases involving impaired driving

ONTARIO COURT OF JUSTICE

College Park – Toronto

BETWEEN:

HER MAJESTY THE QUEEN

REASONS FOR JUDGEMENT

[1] Mark Peterson, the defendant, was at the wheel of his truck on the Danforth in Toronto one evening in September 2007. His driving drew the attention of two police officers. He was arrested for impaired driving following a brief further investigation. Subsequent Intoxilyzer testing produced blood/alcohol concentration (BAC) results well in excess of the legal limit, leading to a second charge of “over 80”.

[2] The defence has advanced a number of Charter-related issues. By agreement of counsel, the trial proceeded by way of a blended hearing. Only the two arresting officers and a qualified breath technician testified. A DVD of the defendant’s Intoxilyzer testing, pertinent to a central defence issue, also forms part of the evidentiary record.

[3] As in all criminal trials, the legal burden with respect to each essential element of the two offences charged rests on the Crown on a standard of proof beyond reasonable doubt. The defence position is that the evidence of impairment is not such as to support a conviction for that offence. Indeed, says the defence, the evidence of impairment does not even amount to reasonable grounds to demand breath tests, thus rendering the defendant’s compelled BAC testing a breach of his Charter-protected right to be secure against unreasonable search and seizure. In addition, the defence claims that the defendant’s Charter s. 10(b) rights to retain and instruct counsel and to be informed of that right were also violated. In the case of either Charter infringement, the defence argues that the appropriate remedy is the exclusion of the results of the breath samples taken from the defendant and dismissal of the “over 80” charge dependent on these results.

[4] As the defendant’s initial arrest and breath-test demand were without warrant, it is the Crown’s onus to establish, on a civil standard, the reasonableness of this search. Otherwise, the burden of establishing the alleged Charter violations and the appropriateness of the remedy sought falls to the defence to establish on the balance of probabilities.

B.EVIDENCE

(a) On the Street

[5] PCs Marc Denton and Harry Bustos were on patrol on the Danforth on the evening of September 22, 2007. About 11:35 pm they spotted a GMC pick-up eastbound in the curb lane. The truck was moving at about 40 kph in a 50 or 60 kph zone, which the officers considered unusually slow for that time of night. The truck was also weaving within its lane; it did not touch the curb or cross a lane line. The police followed the truck as it pulled into the pumps at a nearby Petro Canada station. The driver had no difficulty driving into the station or parking at the pumps. The defendant, who was driving, walked around the rear of the truck, leaning on it several times in a manner that suggested he was trying to maintain his balance. The defendant competently pumped gas into his vehicle but leaned against the truck with one hand while doing so. The defendant, according to Bustos, was not stumbling or swaying.

[6] The defendant then went to the station’s kiosk. The officers intercepted him as he returned to the truck. Bustos focused his investigative attention on the passenger in the truck (the defendant’s adult son, Justin) while Denton was primarily engaged with the defendant. According to Denton, the defendant had no difficulty walking and there was nothing unusual about his eyes or his facial colouration. He identified himself properly to the officers but again appeared unbalanced as he several times rested on the truck with his left hand. The defendant advised that he had had five or six beers that night and there was a smell of alcohol on his breath. His speech appeared slurred. There was an open can of Budweiser in the front seat cup-holder.

[7] Based on his observations of the defendant’s driving conduct, motor control, alcohol consumption and slurred speech, Denton formed the opinion that the defendant had driven while his ability to do so was impaired by alcohol. He arrested him for that offence at 11:38 pm. He then read the defendant his rights to counsel and demanded that he provide samples of his breath for BAC analysis. Although he had no specific recall, Denton’s general practice is to tell similarly-situated detainees that the police could contact duty counsel for them.

[8] Bustos arrested the defendant’s son Justin at 11:45 pm for an unrelated offence. As separate transport needed to be summoned for Justin, Denton and Bustos did not leave the PetroCan station with the defendant until 11:56 pm. En route to Traffic Services, they were re-directed to a closer mobile breath-testing unit, a RIDE facility, which they reached at 12:04 am.

(b) Inside the RIDE Trailer

[9] Once inside the RIDE trailer the defendant advised the officers that his lawyer was Brian Coleman. He did not have a viable number for Coleman but advised the officers that he wanted to speak to his own lawyer and not duty counsel. Denton tracked down Brian Coleman’s phone number and called his office at 12:22 am. He left a voice mail message, including a call-back number. There was no immediate call-back. Sometime before 12:30 am the defendant said something like, “Forget it, I want this test done now”. He was then escorted to the breath room and introduced to a qualified breath technician (QBT), PC Michael Thompson. Bustos agreed that other than the odour of alcohol he did not notice any indicia of impairment between the time the defendant arrived at the trailer and the time he entered the breath room.

[10] My notes of the audio track of the relevant exchange between Thompson (QBT) and the defendant (MP).

[Defendant escorted from breath room.]

[13] Thompson had been briefed by Denton as to the nature of the investigation and the police efforts to contact the defendant’s counsel of choice. He noted that the defendant was tipsy-looking, flushed and talkative, with heavy eyelids, bloodshot eyes and slurred or heavy speech. Based on the defendant’s behaviour and appearance in the breath room and his observations of some off-camera swaying in the trailer corridor, Thompson formed the opinion that the defendant was “impaired”. Apart from the odour of alcohol, Thompson testified he would have reached the same conclusion on the basis of the video evidence alone. He had conducted Intoxilyzer tests on about 1,500 suspects in the course of his career. Not once had he concluded that a suspect was other than “impaired” when that person was already charged with impaired driving.

[14] Relying on his memory, and inconsistent with the video evidence, Thompson testified that he did not believe the defendant ever asked to speak to his lawyer during the second breath-testing procedure. Asked what he would have done had the defendant in fact asked to speak to his lawyer during this second procedure, Thompson replied that he would have explained to the defendant that the police had exhausted their efforts to reach Coleman and waited beyond any reasonable time for a call-back. However, he would have afforded the defendant an opportunity to consult duty counsel or another lawyer if that had been his request. Thompson did not suggest contacting duty counsel as he believed the defendant only wanted to speak to his own lawyer. He described the defendant as appearing to fall or come down on the top of the Intoxilyzer at one point during the first testing; this is again inconsistent with the video evidence. Thompson agreed there was no urgency in completing the second test as the first test had been taken well within the statutory time limit.

[15] On the first sample, collected at 12:37 am, the defendant’s BAC was analyzed as 145 mg. of alcohol in 100 ml. of blood. His second result, provided at 12:59 am, was 140 mg. of alcohol in 100 ml. of blood. Both results are well in excess of the legal limit of 80 mg. of alcohol in 100 ml. of blood.

C. ANALYSIS

(a) Unreasonable Search and Seizure: The S. 8 Argument

[16] The taking of the defendant’s breath samples in the instant fact scenario constitutes warrantless seizures for Charter s. 8 purposes. Accordingly, the Crown bears the burden of establishing on the balance of probabilities that these seizures were reasonable. That burden is satisfied where the Crown demonstrates compliance with s. 254(3) of the Code: that is, that the officer making the breath demand “believes on reasonable and probable grounds that a person is committing, or at any time within the preceding three hours has committed, as a result of the consumption of alcohol, an offence” of impaired driving or “over 80”. These propositions were settled by the Court of Appeal in R. v. Haas (2005), 2005 CanLII 26440 (ON CA), 200 C.C.C. (3d) 81.

[17] PC Denton effected the defendant’s arrest. His subjective belief that he had reasonable and probable grounds to make the subsequent breath demand is not contested. What is at issue, and what the Crown must demonstrate to clear its s.8 threshold, is that Denton’s subjective belief was objectively sound. This assessment mandates an appraisal of the entirety of the evidence apparent to the arresting officer – both that indicative of impairment and that detracting from this conclusion. As said by MacDonnell J. in the oft-cited case of R. v. Cooper (1993), 46 M.V.R. (2d) 231 (O.C.J.), at para. 16,

It is the totality of the circumstances known to the officer – those which undermine the belief as well as those which support it – which must be assessed to determine if the requirement of reasonable and probable grounds has been met.

(See also R. v. Storrey, 1990 CanLII 125 (SCC), [1990] 1 S.C.R. 241, esp. at para. 16.) That said, one must be careful not to confuse the assessment required at the breath demand stage with that engaged by the ultimate burden of proof. As put by Hill J. in R. v. Censoni (2001), 22 M.V.R. (4th) 178 (O.S.C.J.), at para. 43, “Reasonable grounds in the context of a s. 254(3) breath demand is not an onerous threshold. It must not be inflated to the context of testing trial evidence.”

[18] Considering the totality of circumstances apparent to PC Denton, and applying the standard of reasonableness as construed by these authorities, I am satisfied that the officer did have reasonable and probable grounds to believe that the defendant had been driving while impaired. Denton thus had a constitutionally provident basis for demanding samples of the defendant’s breath. The defendant was not stumbling or incoherent, his driving was no more than suspicious, and his face and eyes showed no patent indicia of intoxication. Nonetheless, his weaving within his lane, coupled with the odour of alcohol on his breath, his admission of having drunk a number of beers over the course of the evening, his slurred speech and his repeated resting on his vehicle to apparently maintain his balance cumulatively and objectively support Denton’s belief that the defendant’s ability to drive was at least slightly impaired by alcohol consumption: R. v. Stellato (1993), 1993 CanLII 3375 (ON CA), 78 C.C.C. (3d) 380, at 384 (Ont.C.A.); affd. 90 C.C.C. (3d) 60 (S.C.C.). Accordingly, I hold that there was here no breach of the defendant’s s. 8 rights.

(b) The Right to Counsel: The S. 10(b) Argument

(i) Introduction

[19] Section 10(b) of the Charter imposes both informational and implementational obligations on the police so as to ensure compliance with every arrested person’s right to access counsel without delay and the correlative right to be so informed: R. v. Bartle (1994), 1994 CanLII 64 (SCC), 92 C.C.C. (3d) 289 (S.C.C.). It is not here suggested that the arresting officers failed to honour their informational duty upon detaining the defendant (including informing him of legal aid and the availability of duty counsel), or that they failed to make good faith efforts to implement the defendant’s s. 10(b) rights once at the RIDE trailer by locating and calling the defendant’s counsel of choice. The defendant, it is agreed, then waived his right to counsel – at least with respect to the first breath test – when he said, “Forget it. “I want this test done now”. He then confirmed his intention to proceed without first speaking to counsel in his subsequent exchange with Thompson. Significantly, the defendant appears to have qualified his waiver, or left open the possibility of rescinding it, when he added, “We’ll see what the test says first”.

[20] The defendant was outside the breath room for about 18 minutes between tests. His first words on re-entering the breath room are “What did I blow?” Thompson twice tries to evade answering the question, causing the defendant to ask, “Can I find out now or should I call my lawyer again?” Informed by Denton that the police had tried to re-call Coleman and by Thompson that, “The first test is no good without the second”, the defendant returns to his opening question: “All right, what was the first one though?” Thompson, relenting, informs the defendant that, “The first test shows 145 mgs”. The defendant is patently distressed by this result. After some rumination he asserts a right to counsel, asking Thompson, “Well, can I just wait until I talk to my lawyer?”. Thompson replies “No”, reinforced by a negative shake of his head. After some initial reluctance, the defendant provides the requested sample, resulting in his “blow over” charge.

[21] The neat question is whether the police repudiation of the defendant’s request to try once more to contact his personal lawyer breached his s. 10(b) right to retain and instruct counsel. Counsel for the defendant says compliance with its s. 10(b) obligations required the police to interrupt the second test procedure upon the assertion of the right to counsel, re-call the defendant’s lawyer’s phone number and, if contact again proved futile, remind the defendant of the availability of duty counsel. The failure to honour these constitutional obligations, says the defence, infringed the defendant’s s. 10(b) rights and the appropriate and just remedy for such breach is the exclusion of the breath test results pursuant to s. 24(2) of the Charter.

[22] Crown counsel says the defendant was not reasonably diligent in pursuing his right to counsel, that his re-assertion of the right during the second test was dilatory and insincere and that the police were not required to re-inform the defendant of the availability of duty counsel given their perception of his desire to speak only to his personal counsel of choice. As a result, no breach was occasioned. In the alternative, the Crown says that the nature of the breach, if one did occur, was so minor that, when viewed in a context of repeated good faith compliance by the police, the remedy of exclusion ought not to follow.

(ii) The Alleged s. 10(b) Breach

[23] Contrary to the position advanced by the Crown, I find the defendant acted with reasonable diligence in asserting his right to counsel during the second test procedure. I find further that his assertion was sincerely expressed. The circumstances had changed materially between the time the defendant first waived his s. 10(b) rights and his re-assertion of those rights during the second test. Once informed that he had “blown over” on the first test, he was in a situation of substantially enhanced jeopardy. He responded by requesting a fresh opportunity to contact his lawyer. His subsequent reluctance to provide a suitable sample reflects, I find, not a conscious effort to delay or impede the process so much as an expression of his frustration with the denial of his request to access counsel. He readily complied with the police demand to provide a second sample once cautioned about the legal consequences of a refusal to properly exhale.

[24] Once the defendant had indicated his desire to exercise his right to counsel the police obligations, as set out in Bartle, supra, at p. 301, are clear:

• to provide the detainee with a reasonable opportunity to exercise the right (except in urgent and dangerous circumstances); and

• to refrain from eliciting evidence from the detainee until he or she has had that reasonable opportunity (again, except in cases of urgency or danger).

The circumstances presented to the officers dealing with the defendant were not dangerous. Nor was there any urgency: the defendant had completed the first test well within the time-frame prescribed by the Criminal Code and his request to speak with counsel was made only 20 minutes or so after providing that first and suitable sample. Thompson’s refusal to facilitate a further attempt to contact the defendant’s counsel infringed the defendant’s s. 10(b) rights. He ought to have afforded the defendant another chance to call his lawyer and “held off” until he had a reasonable opportunity to effect such contact. Unlike the case of R. v. Ritchfield (2003), and others relied on by the Crown, that reasonable opportunity was never here provided.

[25] If, as Thompson suspected would occur, the defendant’s effort to contact his lawyer proved unsuccessful then, given the change in jeopardy, the defendant ought to have been re-informed of duty counsel’s availability. It would then have been the defendant’s election whether to contact duty counsel or effectively waive his s. 10(b) rights. However, I do not hold that the police here also failed to comply with the informational component of s. 10(b). Given the defendant’s apparently adamantine insistence in speaking with his own counsel, that obligation would not have crystallized unless and until a reasonable opportunity to reach counsel of choice – as requested by the defendant – proved unavailing.

[26] The implementation breach that occurred here flows from a purposive reading of s. 10(b). I note in this regard that in R. v. Kusnir (2002), the late and highly respected criminal jurist Justice Archie Campbell, commented, at paras. 21 and 22, that

The courts should encourage the police to err, if at all, on the side of ensuring that an accused actually gets access to counsel.

Where there is any doubt at all about waiver it should be clear that there is a bright line duty on the police to ensure access to counsel. Otherwise the courts discourage, rather than encourage, access to counsel by detained persons.

(iii) The Appropriate and Just Remedy

[27] Section 24(2) of the Charter provides that “evidence obtained in a manner that that infringed or denied any rights or freedoms guaranteed by [the] Charter … shall be excluded if it is established that, having regard to all the circumstances, the admission of it in the proceedings would bring the administration of justice into disrepute”. The application of this remedial provision depends on consideration of three factors: the effect of admitting the evidence on the fairness of the trial; the seriousness of the Charter violation; and the effect of excluding the evidence on the repute of the administration of justice. There is no “automatic exclusion” rule in the case of conscriptive evidence and, accordingly, all three Collins factors must be considered.

[28] As to the first factor: the dominant view, as I read the jurisprudence, is that BAC readings are conscriptive evidence: R. v. Stillman (1997). Evidence of this character is frequently excluded because its admission prejudices trial fairness. This is less true when, as here, the conscriptive evidence is “real” evidence and therefore the reliability concerns that may accompany, for example, a verbal statement taken in violation of an accused’s rights are less likely to arise. However, unlike cases such as Grant (where the evidence in question was a handgun), the evidence here may not have come into physical existence but for the violation of the defendant’s rights. As said in Bartle, supra, at p. 321, “the breathalyser evidence might not have been obtained had the appellant’s s. 10(b) rights not been infringed and, therefore, that admission would adversely impact on the fairness of the trial”.

[29] The second factor, that of the seriousness of the violation, mandates consideration of the importance of the right in question – here, as said in Prosper, supra, at pp. 376 and 378, that right essential to “protect[ing] the privilege against self-incrimination” and “to safeguard[ing] the liberty interests of detainees”, and, I add, to restoring a semblance of balance between the power of the state and persons in circumstances of state control and penal vulnerability. In Grant, supra, at para. 57, the Court of Appeal observed that, unlike the Charter s. 9 right at issue in that case, .. one of the main purposes of s. 10(b) is to protect an individual’s right against self-incrimination. Thus, the denial of the right to counsel strikes at the heart of an individual’s decision whether to provide incriminatory evidence.

Further, it cannot be said the officers acted in good faith in departing from settled authority as to the meaning or, at minimum, purpose of the provision as construed by hundreds of decisions respecting s. 10(b) – particularly where, as here, no urgency attended their task. Further still, and unlike cases such as R. v. Wilding (2007), 2007 ONCA 853 (CanLII), 229 C.C.C. (3d) 507 (Ont. C.A.), on which the Crown relies, the defendant did not have an opportunity to speak to any counsel, let alone one who left him, as reported at para. 13 in the Wilding decision, “content with the advice he received”. I cannot characterize the Charter breach occasioned in the instant case as either minor or inconsequential.

[30] Finally, while I am cognizant of the risks entailed by impaired driving and the commendable goals of the law and its enforcement in this area, I am satisfied that the repute of the administration of justice would be more negatively impacted by the admission of this evidence than its exclusion. This, I note, was the conclusion reached by Lamer C.J.C. on behalf of the majority in Bartle, supra, at p. 321: … notwithstanding … the fact that drinking and driving poses a significant risk to public safety, I am of the view that exclusion of the evidence in this case is in the long-term interests of the administration of justice. Section 24(2) must work together with s. 10(b) to ensure that the privilege against self-incrimination and the principle of adjudicative fairness are respected and protected in our criminal justice system.

Accordingly, the evidence of the defendant’s BAC readings is excluded from this trial. As the Crown case against the defendant for driving with excessive blood alcohol concentration is dependent on the now excluded breath test results, the defendant is found not guilty of that charge.

(c) The Impaired Driving Charge

[31] There is no statutory definition of impairment. It is fundamentally a factual inquiry to be determined on a global review of the relevant evidence tendered in each case. While any degree of impairment of the ability to drive will, if satisfied to the requisite standard, constitute legal impairment, a crucial distinction is to be maintained between impairment generally and impairment of the ability to operate a motor vehicle: see R. v. Stellato, supra, and R. v. Andrews (1996). As summarized by the Court of Appeal in Stellato, supra, at p. 384:

If the evidence of impairment is so frail as to leave the trial judge with a reasonable doubt as to impairment [of the ability to drive], the accused must be acquitted. If the evidence of impairment establishes any degree of [such] impairment ranging from slight to great, the offence has been made out.

[32] As in most cases of this nature, the relevant circumstances encompass observations not only of a defendant’s driving conduct but, as well, his appearance, demeanour, behaviour and dexterity once confronted by the police. As to the former, there is very little evidence here of suspect driving. As noted earlier, PCs Denton and Bustos observed the defendant weaving within his lane over the course of a couple of blocks and travelling at a rate minimally below the speed limit. He had no apparent difficulty driving into a gas station or parking accurately at the pumps. His motor skills once out of his truck attract somewhat more concern. According to the officers the defendant occasionally leaned on his truck and his speech appeared slurred. He was not, however, stumbling or swaying, had no difficulty walking to or from the station’s kiosk, bore none of the signature facial signs of intoxication, and properly identified himself when questioned. The odour of alcohol confirmed that he had been drinking that evening. These observations, as I earlier concluded, were sufficient to support the arresting officer’s opinion, on reasonable and probable grounds, that the defendant was driving while alcohol-impaired. However, none of them, viewed independently or collectively, are compelling evidence of impaired driving when measured by the ultimate burden. The observations of apparent imbalance are rendered ambiguous when set beside the defendant’s walking to and from the cashier’s station without any problems of equilibrium. And who, I ask rhetorically, has not at sometime leaned on their vehicle while pumping gas.

[33] Close to an hour after his arrest the defendant was escorted into a breath test room manned by PC Thompson. Thompson, as I have noted, testified to the defendant being flushed and talkative with heavy eyelids, bloodshot eyes and slurred or heavy speech. He also noted the defendant falling or coming down on top of the breathalyzer machine at one point during the testing procedure and spoke of some swaying in the RIDE trailer corridor where the defendant was guarded by Denton and Bustos. As to the latter observation, Bustos, who stood by the defendant throughout his sojourns in the corridor, failed to notice any indicia of impairment either in the period before the first test or in the interregnum between the two. As to Thompson’s claim that the defendant fell or came down on the Intoxilyzer during the testing, I need say that I have closely watched the DVD exhibit on several occasions and saw nothing that even approximates such an event. The defendant does briefly rise from his chair on one occasion when Thompson effectively invites him to eyeball a graphic on the breath machine, but his motions appear fluid, focused and contextually responsive. He does not fall or otherwise come down on the breath machine. As to Thompson’s observations of the defendant’s appearance, I agree that there is some colour in his face and he appears garrulous and heavy-lidded. However, the defendant’s facial appearance, as apparent in the video, has been little different throughout the five days I have had the opportunity to observe him during the course of this trial. And on the few occasions when he has spoken in court (to explain, for example, the absence of his counsel), the defendant has exhibited the same raspy heaviness of speech apparent in the video.

[34] In the end, I find Thompson’s assessment of the defendant’s behaviour somewhat tendentious. I rely, instead, on my own observations of the defendant as displayed in the video evidence, supplemented by Thompson’s testimony, which I accept, as to the odour of alcohol emanating from the defendant. Where there are inconsistencies between the evidence of Thompson and Bustos, I am left in doubt whether the physical indicia of impairment described by Thompson actually occurred.

[35] In Andrews, supra, at p. 406, the Alberta Court of Appeal noted:

It is not deviation from normal conduct, slight or otherwise, that is in issue. What is in issue is the ability to drive. Where circumstantial evidence alone or equivocal evidence is relied on to prove impairment of that ability, and the totality of that evidence indicates only a slight deviation from normal conduct, it would be dangerous to find proof beyond a reasonable doubt of impairment of the ability to drive, slight or otherwise.

[36] Viewed compendiously, I find the evidence of the defendant’s impaired ability to drive equivocal at best. In assessing its value through the lens of the ultimate burden, I remind myself that the standard of persuasion for Charter s. 8 compliance (that of reasonable and probable grounds – which I here found satisfied) and that required to safely bottom a conviction are very different.

…the standard of proof in a criminal trial is higher than the probability standard used in making everyday decisions and in civil trials. Indeed, it is this very requirement to go beyond probability that meshes the standard of proof in criminal cases with the presumption of innocence and the Crown’s onus.

If standards of proof were marked on a measure, proof “beyond reasonable doubt” would lie much closer to “absolute certainty” than to “a balance of probabilities”.

Viewed globally, the evidence that I do accept falls short of the standard enunciated in Starr. It is too frail to ground proof beyond reasonable doubt of impaired driving and, accordingly, the defendant is found not guilty of this charge as well.

D. CONCLUSION

[37] In conclusion, I find Mark Peterson not guilty of both charges on which he was arraigned.