REASONS FOR JUDGMENT OF THE HONOURABLE MADAM JUSTICE CONRAD
[1] Mr. Andrews was acquitted of a charge under s. 253(b) of the Criminal Code of Canada R.S.C. 1985, c. C-46, of operating a motor vehicle while the concentration of alcohol in his blood exceeded the proper limits (“over .08”), but convicted of s. 253(a), namely, driving while his ability to drive was impaired by alcohol (“impaired driving”). His appeal to the summary conviction appeal court was dismissed and he now appeals that decision.
[2] The issue on this appeal relates to the distinction between the degree of impairment of the ability to operate a motor vehicle necessary to found a conviction, and the degree of deviation from normal conduct necessary to prove that ability is impaired. This decision relates to a large extent on the interrelationship between the decisions in R. v. Stellato (1993),
[3] The grounds of appeal are twofold, namely.
(1) that the verdict was unreasonable and not supported by the evidence; and
(2) that the trial judge erred in law in his application and understanding of the test set out in R. v. Stellato.
[4] With respect to the first ground of appeal, the Crown argues that while the unreasonableness of a verdict includes a question of law, it is not a question of law alone and therefore no appeal lies from the decision of the summary conviction appeal judge. As I conclude that a new trial must be ordered on the second argument, I do not address the first issue.
Facts
[5] Mr. Andrews was observed by Constable Allen travelling at approximately 80 km. per hour in a 50 km. per hour zone. As the constable commenced following the vehicle, the appellant slowed down. The appellant made an abrupt lane change and a right turn without signalling. Constable Allen stopped the vehicle, and observed the appellant to have a moderate to strong smell of alcohol on his breath, a rosy-coloured or flushed face, glassy and bloodshot eyes, and a slight slur to his speech. He also was observed to be slightly off balance when exiting the vehicle. Constable Allen described Mr. Andrews as slight to moderately impaired, and acknowledged that some of his actions were good. He administered the Alco-sur test, which the appellant failed. The breathalyser operator stated that there was nothing garbled or confused about the many questions the appellant answered. However, the breathalyser certificate of analysis indicated a concentration of 100 milligrams of alcohol in 100 millilitres of blood.
[6] Mr. Andrews testified in his defence that he always had problems with his eyes and a runny nose. He went for treatment after the offence, and his doctor prescribed medicated drops for his eyes and some nasal spray for his nose, due to allergies. On cross-examination, Constable Allen was asked whether the eyes were more bloodshot, less blood shot, or about the same as they were on the date of trial. He replied, “I — I couldn’t indicate to you any different –.”
[7] With respect to the issue of balance, in cross-examination, the constable acknowledged that it may have been nervousness, alcohol, or the cold weather that was the cause. He also acknowledged that apart from the speed, nothing was out of the ordinary in the driving pattern while the appellant travelled within the centre lane down 109th Street, until the abrupt lane change without signalling. He changed lanes about 10 car lengths before the intersection of 76th where he intended to turn. While it was without signalling, Constable Allen agreed that the signal light was burned out.
[8] Dr. Malicky was qualified as an expert in the absorption and elimination of alcohol on the human body, the theory and operation of the Borkenstein breathalyser, and the effects of alcohol on the human body. He testified as to the test he had performed on Mr. Andrews to establish his likely elimination rate. The essence of his evidence was to challenge the reading of the breathalyser. Dr. Malicky’s prediction, based on the elimination rate he found for this individual, was 25 milligrams at the appropriate time. Using the worst elimination rate he observed, he put the alcohol content at 77 milligrams. Thus, depending on variables I refer to a range of .025 per cent to .077 per cent.
[9] During cross-examination by the Crown, Dr. Malicky testified that, according to the American Medical Association, a person with a blood alcohol reading of 0 to .05 has an ability to drive which is not impaired, between .05 to .10 it may be impaired, and over .10 everybody’s ability to operate an automobile is impaired. He stated that there are exceptional cases where a person’s ability to drive is impaired, notwithstanding a reading of below .05. The impairment of the ability to drive is thus a question of fact, and depends on several physical characteristics of the accused, such as the body’s rate of absorption and elimination of alcohol.
The trial judgment
[10] Mr. Andrews was tried on charges of both impaired driving and “driving over 0.08”. In relation to the latter, the learned trial judge, while having some misgivings on the testimony of Mr. Andrews, did accept that the evidence of the appellant and Dr. Malicky raised a doubt as to the validity of the breathalyser reading. The trial judge was satisfied that there was evidence to the contrary sufficient to disallow the certificate of analysis as proof of the concentration of alcohol in the blood. He accepted that the blood alcohol content could have been less than .08, and thus acquitted Mr. Andrews. Those findings are significant to this judgment. It follows from those findings that there is a reasonable doubt as to the blood alcohol range and it could have been significantly lower than .08.
[11] In respect of the impaired driving charge, the trial judge’s reasoning is less clear. A lengthy discussion occurred between counsel and the trial judge with respect to the meaning of the Stellato decision. During that time, the trial judge made several statements as to his understanding of that decision. At appeal book p. 122:
Of course as you know — McKenzie’s been overruled by the Stellato case.
[12] And again, appeal book p. 124:
I read –1 have read the Stellato case several — times because it is rather innovative and quite a dramatic change from the McKenzie case that we felt was the Bible for so many years on this.
[13] Again, at p. 125-26, he states:
And I wonder, Mr. Zebak, if given the evidence particularly of Constable Allen, the driving pattern certainly is not a great thing, but there is something unusual, the speeding, the abrupt change of lanes and the turning. The Constable’s question as to whether or not the accused moved in that manner after and slowed down after he saw the police officer, which was a conclusion on his part, not necessarily the case, but it did seem somewhat unusual. And then the — more important than the driving pattern, the symptoms of the Constable as he observed them of the accused.
And I would take from my notes, driver had moderate to strong smell of alcohol on his breath, his face was flushed, his eyes were glassy and bloodshot. His speech was slightly slurred. There were awkward movements in what he did looking for his documents, et cetera and getting out of the motor vehicle. His balance was off slightly.
Now that, as I say. probably under the old McKenzie rule would not establish a marked departure from the norm, but as I say, the significance of the Stellato case, among other things. is that McKenzie is not the law and that there is evidence of slight degree of impairment is sufficient to justify a conviction.
I as I say, I did not mean to shortcut Mr. Lynn in his submission for the Crown, but I just wanted to make those observations given that is now virtually 12:30, we have an afternoon.
[14] The Crown spoke briefly and confirmed the trial judge’s understanding of Stellato and addressed the credibility issue relating to Mr. Andrews’ evidence, following which judgment was rendered. As the reasons were short, and are important to this decision, I include those reasons in their entirety
I agree. I agree with your submission about the presumption of regularity covered a great deal of the points made by Mr. Zebak in his cross-examination and in the questions asked of Dr. Malicky.
You are quite right, as well, that it is a matter of credibility, and the whole defence case stands or falls on whether or not the Court believes that the accused had to drink what he said he had to drink.
In this particular case there is the conflict in the evidence between what he told Constable Allen, what he told Constable Zmurchyk and then what he gave in evidence today. He did say, however, that he went back home, got legal advice and made notes of what he had done that whole evening and presumably, then, thought about it about very carefully and came up with the conclusions.
I am not entirely accepting of the evidence given by the accused as to the amount that he consumed, but I am not really prepared to find that I cannot accept his evidence to the degree that the conclusions drawn by Dr. Malicky as to the amount which the readings would be. Of course Dr. Malicky relied upon the information that was given to him in the hypothetical question, which is of course, what the accused said he had to drink today on the stand.
But, however, all in all on that particular matter Dr. Malicky’s evidence does place him below. There are some discrepancies in exactly when the drinks were consumed, et cetera. At least some opportunities for speculation.
But given the evidence that was before the Court, and I grant you the Crown cannot very well attack what the accused says, that is evidence as to what he had to drink and when, that is evidence entirely and exclusively within his knowledge. But I am prepared to accept that evidence and given that evidence and that being the basis of what Dr. Malicky said, then I am prepared to find that there is evidence to the contrary on the count of driving over 08 and accordingly that count is dismissed.
However, the main situation is still the Stellato case on the impaired driving charge and certainly given the evidence that I already reviewed, there is evidence which, to my mind. establishes beyond a reasonable doubt, slight impairment by the accused at the particular time. This establishes by that proof, some degree of impairment, of slight impairment, in this particular case.
That is the law of the country now having been confirmed by the Supreme Court of Canada and accordingly on the basis of the Stellato case I would find that there is that evidence sufficient enough to establish proof of a slight degree of impairment.
The accused was driving the motor vehicle at the time. Some of the symptoms may be explained away, but when you look at the whole situation, combine it with a slight driving pattern, as the Constable told us about, one cannot come to any other conclusion on that evidence that in fact the accused was slightly impaired.
And that being so, on the impaired driving count, sir, I find you guilty.
Anything you wish to say on penalty?
Argument
[15] The appellant argues that the trial judge erred in his understanding of the Stellato decision, and therefore he applied the wrong test to the facts. In convicting the appellant, at no time did the trial judge specifically direct his mind to the question of whether the ability to drive of the appellant was impaired. He merely considered that there was some degree of impairment of the individual. Moreover, the comments he made just before and during his judgment indicate that he was of the view McKenzie was no longer the law.
[16] The appellant argues that McKenzie was not overruled, but merely explained, by Stellato. The trial judge was of the impression that McKenzie had been overruled, and this misapprehension leads to the conclusion that he did not properly understand the test to be applied in determining guilt. The appellant says that Stellato recognizes that not all consumption of alcohol is conclusive of impairment of one’s ability to drive. Therefore, it is essential to direct one’s mind to the issue of actual impairment of the ability to drive of the particular accused, and not merely whether he or she shows some signs of lack of sobriety. The appellant argues that the trial judge did not have this distinction in mind.
Analysis
[17] This case turns upon the meaning of the words in s.253(b) of the Criminal Code, “while the person’s ability to operate the vehicle… is impaired by alcohol”. The trial judge felt that the Stellato decision meant that “slight impairment by the accused at the particular time” was sufficient for a conviction. In applying this as the legal test, he made a critical error. He failed to focus the issue upon the question of whether Mr. Andrews’ ability to operate a motor vehicle was impaired.
[18] Stellato approves the principle that a conviction on a charge of impaired driving can be founded on proof beyond a reasonable doubt of slight impairment of the ability to drive. If the ability to operate a motor vehicle is impaired (even slightly) by alcohol or drugs, it is not necessary that the degree of that impairment be marked.
[19] The 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”. Every time a person has a drink, his or her ability to drive is not necessarily impaired. It may well be that one drink would impair one’s ability to do brain surgery, or one’s ability to thread a needle. The question is not whether the individual’s functional ability is impaired to any degree. The question is whether the person’s ability to drive is impaired to any degree by alcohol or a drug. In considering this question, judges must be careful not to assume that, where a person’s functional ability is affected in some respects by consumption of alcohol, his or her ability to drive is also automatically impaired.
[20] Stellato, admittedly, is not entirely clear on this distinction. The inference that Stellato will sustain a conviction if the impairment proved is slight, rather than if the impairment of the ability to drive is slight, stems from the penultimate paragraph of Labrosse J.A.’s judgment where he says:
Accordingly, before convicting an accused of impaired driving, the trial judge must be satisfied that the accused’s ability to operate a motor vehicle was impaired by alcohol or a drug. If the evidence of impairment is so frail as to leave the trial judge with a reasonable doubt as to impairment, the accused must be acquitted. If the evidence of impairment establishes any degree of impairment ranging from slight to great, the offence has been made out.
In my view, that paragraph must be read in the context of the whole judgment and in particular the sentence commencing “…Accordingly…” I am satisfied that the subsequent references to the word “impairment” in the paragraph really mean “that impairment” referring to the earlier described impairment of the ability to drive. Otherwise, the pronouncement is not in harmony with the reasons of Mitchell J.A. in R. v. Campbell quoted with approval by His Lordship which I set out for convenience:
The Criminal Code does not prescribe any special test for determining impairment. It is an issue of fact which the trial Judge must decide on the evidence. The standard of proof is neither more nor less than that required for any other element of a criminal offence. Before he can convict, a trial Judge must receive sufficient evidence to satisfy himself beyond a reasonable doubt that the accused’s ability to operate a motor vehicle was impaired by alcohol.
It is not an offence to drive a motor vehicle after having consumed some alcohol as long as it has not impaired the ability to drive. However, a person who drives while his or her ability to do so is impaired bv alcohol is guilty of an offence regardless of whether his ability to drive is greatly or only slightly impaired. Courts must therefore take care when determining the issue not to apply tests which assume or imply a tolerance that does not exist in law. Trial judges constantly have to keep in mind that it is an offence to operate a motor vehicle while the ability to do so is impaired by alcohol. If there is sufficient evidence before the Court to prove that the accused’s ability to drive was even slightly impaired by alcohol. the Judge must find him guilty.
[21] Such an interpretation of the penultimate paragraph in Stellato would also be contrary to the pronouncement of Dickson J. in Graat v. The Queen, 1982 The Supreme Court of Canada has made it clear that “impaired” in this section means a certain degree of drunkenness, and not simply any, minimal degree. In Graat v. The Queen, a case dealing mainly with the question of whether a lay-person could give an opinion of whether a driver was impaired, Dickson J. (as he then was) said at p. 837:
Drinking alcohol to the extent that one’s ability to drive is impaired is a degree of intoxication.
And at p. 839, he stated:
I would adopt the following passage from the reasons of Lord MacDermott in Sherrard v. Jacob…:
The next stage is to enquire if the opinion of the same witnesses was also admissible on the question whether the respondent, if he was under the influence of drink, was so to an extent which made him incapable of having proper control of the car he was driving….
And, finally, also at p. 839:
… whether a person’s ability to drive is impaired by alcohol is a question of fact, not of law. It does not involve the application of any legal standard. It is akin to an opinion that someone is too drunk to climb a ladder or to go swimming…
Ultimately, this is why it is so important not to deal with the issue of impairment separate from impairment of one’s ability to drive. Stellato must not be understood to mean that a person who has anything to drink and then drives a motor vehicle commits the offence under s. 253(a). Nor does it mean any lack of sobriety is sufficient. This is evident from the approval in Stellato (at p. 383) of the opinion of Mitchell J.A. in Campbell that “It is not an offence to drive a motor vehicle after having consumed some alcohol as long as it has not impaired the ability to drive.”
[22] The ratio of the judgment in Stellato is that it is not necessary for the Crown to establish a marked degree of impairment of the accused’s ability to drive; rather, any degree of impairment of that ability, if proved beyond a reasonable doubt, will sustain a conviction. This is what the Supreme Court of Canada approved, not that a slight degree of impairment is to be equated to a slight degree of impairment of one’s ability to drive. That would preclude a trial judge in every case from making the crucial finding of whether the accused’s ability to drive was in fact impaired.
[23] How, then, is a judge to assess whether a person’s ability to drive was impaired by alcohol? This is a question of fact. It is also the question to which the McKenzie case was directed. In that case, Sissons C.J.D.C. discussed the problems of proof of the offence of operating a motor vehicle while impaired. He stated at pp. 318-19:
The effect of alcohol is subjective before it is objective and there may be dangerous impairment even though there are no objective symptoms of intoxication. However, for the practical purposes of a criminal trial, we must, at the present time, depend largely on objective symptoms.
There appears to be no single test or observation of impairment of control of faculties, standing alone, which is sufficiently conclusive. There should be consideration of a combination of several tests and observations such as general conduct, smell of the breath, character of the speech, manner of walking, turning sharply, sitting down and rising, picking up objects, reaction of the pupils of the eyes, character of the breathing.
If a combination of several tests and observations shows a marked departure from what is usually considered as the normal, it seems a reasonable conclusion that the driver is intoxicated with consequent impairment of control of faculties and therefore that his ability to drive is impaired.
I do not think such a finding should be made on a slight variation from the normal.
In short, McKenzie speaks to the kind of evidence from which an inference of impairment of the ability to operate a motor vehicle may be drawn. Where one is relying on circ*mstances, if the combination of the conduct relied upon constitutes a sufficient departure from the conduct of unimpaired, or normal, individuals it is safe to infer from that conduct an existence of impairment of the person’s ability to drive. It sets out, not a rule of law, but a helpful guide to use in assessing evidence.
[24] There is no doubt McKenzie appears to have caused confusion. A danger exists that McKenzie has been understood to stand for the proposition that there must be impairment of the ability to drive of a marked degree. That is not the case. McKenzie speaks to proof.
[25] Impairment is a question of fact which can be proven in different ways. On occasion, proof may consist of expert evidence, coupled with proof of the amount consumed. The driving pattern, or the deviation in conduct, may be unnecessary to prove impairment. More frequently, as suggested by Sissons C.J.D.C. in McKenzie, proof consists of observations of conduct. Where the evidence indicates that an accused’s ability to walk, talk, and perform basic tests of manual dexterity was impaired by alcohol, the logical inference may be drawn that the accused’s ability to drive was also impaired. In most cases, if the conduct of the accused was a slight departure from normal conduct, it would be unsafe to conclude, beyond a reasonable doubt, that his or her ability to drive was impaired by alcohol. Put another way, as was done in Stellato, the conduct observed must satisfy the trier of fact beyond a reasonable doubt that the ability to drive was impaired to some degree by alcohol. McKenzie does not state a rule of law. It suggests a reasonable, common sense approach to the assessment of evidence necessary for proof. This was pointed out long ago by Kerans D.C.J. (as he then was) in R. v. Conlon (1978), 1977 CanLII 642 (AB KB), 12 A.R. 267 at pp. 268-9:
It was never the intention of McKenzie to say that impairment means marked impairment but rather to say that there must be a doubt when you are relying on physical signs alone and those signs are ambiguous.
[26] Stellato, rather than overruling, recognized and explained that McKenzie was discussing proof of the offence. Labrosse J.A. in Stellato quoted from R. v. Winlaw (1988), 13 M.V.R. (2d) 112, where Salhany D.C.J. stated at p. 115 (p. 382):
What Sissons C.J.D.C. was attempting to formulate was a test for the determination of whether certain conduct viewed objectively was consistent only with impairment and inconsistent with some other explanation. He was not attempting to formulate a test as to what degree of impairment will constitute impairment for the purposes of s. 237(a) of the Criminal Code.
[27] And further, Labrosse J.A. quoted (at p. 383) from an unreported decision of the B.C. Court of Appeal, R. v. Bruhjell, where Macdonald J.A. stated:
In my view, what was said in the McKenzie case, and it has been resorted to in many subsequent cases, including appeals in this court, states no more than an approach to the weighing of the evidence, having the purpose of assisting the judge in deciding if the evidence is sufficient to convict.
[28] In my view, Stellato and McKenzie are compatible cases. Stellato speaks to the degree of impairment of the ability to drive necessary to sustain a conviction; McKenzie speaks to the manner of proof of that impairment. Stellato supports the proposition that a marked degree of impairment of ability to drive is not required, whereas McKenzie says that an inference of any impairment of the ability to drive can reasonably be drawn from conduct that exhibits a marked departure from the norm. It does not say that it ought not to be drawn if it is not a marked degree. It only proscribes that inference if there is a slight variation from the normal. It speaks to degree of proof. In other words, as framed in Stellato, the conduct must be of such a nature that an impairment of the ability to operate a vehicle (be it slight or marked impairment) is proven beyond a reasonable doubt. Stellato does not overrule McKenzie, it says that there is no rule of law requiring that in addition to finding the existence of an impairment of ability to drive, there must also be a marked departure of conduct. This interpretation of the relationship between McKenzie and Stellato has also been adopted by Southin J.A. in R. v. Smith (1994)
[29] This court made the following statement in R. v. Smith (1992),
But McKenzie has maintained its force, certainly in Alberta. If it is wrong and Parliament prefers to criminally proscribe any impairment, however slight, accompanying the operation of a motor vehicle, it is free to do so. This seems unlikely where provincial governments concurrently sell intoxicants and driver’s licences (frequently from the same building), and the federal government declines to criminalize the operation of motor vehicles by persons who have consumed alcohol but in amounts less than 80 mg. of alcohol in 100 ml. of blood.
[30] Smith does not warrant an interpretation that there must be a marked degree of impairment in the ability to drive. I recognize that there is some confusion created in the Smith judgment as to the full impact of McKenzie. But I think a careful reading of Smith simply points out the need to ensure that, notwithstanding consumption of some alcohol, it is necessary to be satisfied that the consumption has resulted in an impairment of the ability to operate a motor vehicle. This is consistent with the recognition that not all consumption results in an offence. The fact that the blood alcohol ratio must be 80 mg. of alcohol in 100 ml. of blood before it is a criminal offence is consistent with the recognition that not every drink causes impairment of the ability to drive. In my view, Smith recognized that the test in McKenzie was not a rule of law but, as McClung J.A. said (at p. 286) “…an adjudicative tool…” It was a case speaking to proof of the impairment of the driving facility. Smith pointed out that consumption of some alcohol was not sufficient for conviction, and that the McKenzie test was useful to prove that there was actual impairment of the ability to drive. I also note that Labrosse J.A. in Stellato, while discussing Smith, stated at p. 384:
The court noted in Smith that if Parliament had intended to proscribe any impairment, however slight, it could have done so. On the other hand, if Parliament had intended to proscribe impaired driving only where accompanied by a marked departure from the norm, it also could have done so.
Certainly, there is no secondary requirement that in addition to finding some degree of impairment of the ability to drive, a court must find there is a marked departure in conduct. But McKenzie does not say that, nor does Smith. Indeed, if there was evidence of the amount of consumption combined with expert evidence of the impact of that consumption on the ability to drive, it would be unnecessary to have proof of actual conduct of the accused at all. The question is simply whether the totality of the accused’s conduct and condition can lead to a conclusion other than that his or her ability to drive is impaired to some degree. Obviously, if the totality of the evidence is ambiguous in that regard, the onus will not be met. Common sense dictates that the greater the departure from the norm, the greater the indication that the person’s ability to drive is impaired. For instance, if one is assessing driving conduct, exceeding the speed limit is something that many people do whether or not they have consumed alcohol. Thus, that factor would naturally be less indicative of one’s ability to drive being impaired, than would weaving back and forth from lane to lane, or travelling on the wrong side of the road. In the end the test remains, is the ability to drive of the person impaired?
[31] In my view the following general principles emerge in an impaired driving charge:
(1) the onus of proof that the ability to drive is impaired to some degree by alcohol or a drug is proof beyond a reasonable doubt;
(2) there must be impairment of the ability to drive of the individual;
(3) that the impairment of the ability to drive must be caused by the consumption of alcohol or a drug;
(4) that the impairment of the ability to drive by alcohol or drugs need not be to a marked degree; and
(5) proof can take many forms. Where it is necessary to prove impairment of ability to drive by observation of the accused and his conduct, those observations must indicate behaviour that deviates from normal behaviour to a degree that the required onus of proof be met. To that extent the degree of deviation from normal conduct is a useful tool in the appropriate circ*mstances to utilize in assessing the evidence and arriving at the required standard of proof that the ability to drive is actually impaired.
Did the trial judge err?
[32] Turning to the case at bar, with respect, I am of the view that, notwithstanding the enunciation of the reasonable doubt standard, the trial judge erred in his understanding of the evidentiary burden involved, and the right question to be asked. His statements, viewed in the context of the evidence as a whole, suggest that he concluded that as a result of Stellato, any degree of deviation in conduct from the norm coupled with consumption, was sufficient to found an inference that the accused’s ability to operate a motor vehicle was impaired to some degree. That is not the result of Stellato. It is not only the degree of lack of sobriety that is in issue, but whether the consumption impacts to any degree on the ability to drive.
[33] The test of weighing circ*mstantial evidence of conduct in support of an inference of impairment of ability to drive has not changed to mean that equal weight should be attributed to conduct which indicates a marked departure from normal conduct and conduct which indicates a slight deviation from normal conduct. That would have the practical effect of lowering the standard of proof of the offence. It is not deviation from normal conduct, slight or otherwise, that is in issue. What is in issue is the ability to drive. Where circ*mstantial 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.
[34] Although this is an appeal on a question of law alone, the trial judge’s discussion of the facts helps show that he applied the wrong legal test. He accepted that Mr. Andrews’ evidence and that of Dr. Malicky raise a doubt as to the blood alcohol content. Dr. Malicky’s evidence suggested that, depending on various factors, the blood alcohol level could have been as low as .025 per cent, which would, according to the American Medical Association, indicate that the ability to drive was likely not impaired. The trial judge further accepted that the deviation in conduct was slight. There were many explanations of that conduct. Nevertheless, he ruled that the evidence was sufficient to convict. This conclusion, coupled with the trial judge’s comment that McKenzie had been overruled, suggests he did not correctly understand the interpretation placed on it by Stellato.
[35] In short, I am satisfied that the trial judge did not correctly apply the reasonable doubt test to the question of whether the accused’s ability to drive was impaired. He equated any deviation of conduct with impairment. It is the accused’s ability to drive which must be impaired. That distinction must always be kept in mind. A person’s ability to perform certain tasks may well occur at a different level of sobriety than impairment of one’s ability to drive. Moreover, the effect of alcohol varies from individual to individual. This charge requires that the trial judge address the question of whether there is an impairment of the accused’s ability to drive. What the trial judge did amounts to saying that if there is any deviation in the appellant’s conduct from the norm, that was sufficient to say he was impaired to some degree. But was his driving impaired? Failing to address that question is an error of law alone. I do not suggest that every time the trial judge must verbalize that test specifically. However, in this case the findings of the trial judge respecting the level of alcohol in the blood, together with the expert evidence, make the issue of impact of alcohol on the ability to drive the pivotal issue. No help is received from the smell of alcohol, because consumption is admitted. The effect of that alcohol on the ability to operate the vehicle is the sole issue. The trial judge did not focus on that issue. He at no time states that test and his comments indicate he did not understand the relationship between Stellato and McKenzie. He applied the test of “any impairment” as opposed to “any impairment in the ability to drive”. With respect, I disagree with Hetherington J.A. when she concludes that the whole of the reasons show the trial judge had that distinction in mind.
[36] In the result, I am satisfied that the trial judge did not apply the correct test and that is an error of law alone. The summary conviction appeal court erred in law by failing to identify that error. The conviction is quashed and a new trial is ordered.
DATED at Edmonton, Alberta
this 8th day of January
A.D. 1996
JUDGMENT OF THE HONOURABLE MADAM JUSTICE HETHERINGTON
[37] A judge of the Provincial Court convicted Mark Anthony Andrews of operating a motor vehicle while his ability to do so was impaired by alcohol, contrary to s. 253(a) of the Criminal Code. Mr. Andrews appealed to the Court of Queen’s Bench from this conviction. A judge of the Court of Queen’s Bench dismissed his appeal. Mr. Andrews has now appealed to this court from that dismissal.
[38] The issue in this case is whether the Provincial Court judge misdirected himself as to the effect of the decision of the Supreme Court of Canada in R. v. Stellato (1994), on the decision of the District Court of Alberta in R. v. McKenzie (1955).
[39]Mr. Andrews appealed to the Court of Queen’s Bench under s. 813 of the Criminal Code. The Queen’s Bench judge dismissed the appeal pursuant to s. 822. Mr. Andrews then appealed to this court relying on s. 839(1). The relevant parts of that section read as follows:
“839.(1) An appeal to the court of appeal… may, with leave of that court or a judge thereof, be taken on any around that involves a question of law alone, against
(a) a decision of a court in respect of an appeal under section 822
[40] Counsel for Mr. Andrews raised two grounds of appeal. They are set out in his factum as follows:
“(1) That the Learned Provincial Court Judge erred in finding that Indicia of Impairment existed on the facts of the case to warrant a conviction under Section 253(a) of the Criminal Code of Canada. The weight of the evidence relied upon in finding the conviction of operation of a motor vehicle while one’s ability was impaired by alcohol or a drug was so weak, looking at the evidence as a whole, that the verdict was unreasonable.
(2) That the Learned Provincial Court Judge erred in applying the test set out in R. v. Stellato (1993) in finding grounds for the conviction of s. 253 (a) of the Criminal Code.”
Both of these grounds refer to error by the Provincial Court judge. However, the appeal to this court is from the Queen’s Bench judge. I assume that counsel for Mr. Andrews intended to allege that the Queen’s Bench judge erred in law in failing to find that the Provincial Court judge had erred in the above particulars.
[41] The first response of counsel for the Crown to these grounds of appeal was that neither involved a question of law alone, as required by s. 839(1). I must therefore examine each ground to see if it raises such a question.
[42] Even if the first ground of appeal raises a question of law, that question can not stand alone. Questions of fact are involved. To use the usual terminology, this ground raises questions of mixed fact and law. It follows that Mr. Andrews cannot appeal to this court on this ground.
[43] Beyond that, Mr. Andrews could not succeed on this ground. His counsel conceded in his factum that there was some evidence to support the findings of the Provincial Court judge. I am not persuaded that the verdict in this case is unreasonable.
[44] The second ground of appeal also appears to involve questions of both fact and law. It speaks of applying the law and finding grounds for conviction. However, counsel for the Crown conceded that the question of whether a judge misdirected himself or herself on the effect of a case, is one of law. I propose, therefore, to treat the second ground of appeal as if it were phrased in this fashion.
[45] The reasons for judgment of the Queen’s Bench judge are brief and to the point. I will quote them in their entirety:
“I am of the view that the trial judge made no error in law and there was evidence on which he could base his findings and therefore I am going to dismiss the appeal.”
[46] Was the Queen’s Bench judge wrong when he said that the Provincial Court judge had made no error in law? Did the Provincial Court judge misdirect himself as to the effect of Stellato on McKenzie?
[47] In his reasons for judgment, the Provincial Court judge dealt with the charge of driving while impaired as follows:
“However, the main situation is still the Stellato case on the impaired driving charge and certainly given the evidence that I already reviewed, there is evidence which, to my mind, establishes beyond a reasonable doubt, slight impairment by the accused at the particular time. This establishes by that proof, some degree of impairment, of slight impairment, in this particular case.
That is the law of the country now having been confirmed by the Supreme Court of Canada and accordingly on the basis of the Stellato case I would find that there is that evidence sufficient enough to establish proof of a slight degree of impairment.
The accused was driving the motor vehicle at the time. Some of the symptoms may be explained away, but when you look at the whole situation, combine it with a slight driving pattern, as the Constable told us about, one cannot come to any other conclusion on that evidence that in fact the accused was slightly impaired.
And that being so, on the impaired driving count, sir, I find you guilty.”
[48] The Provincial Court judge did not, in the above passage, expressly distinguish between impairment generally and impairment of the ability to drive. However, I am satisfied, looking at the passage as a whole, that he made that distinction. He said first that he was satisfied beyond a reasonable doubt that Mr. Andrews was slightly impaired. If he had thought that impairment alone was sufficient, he would have stopped there. Instead, he turned to Mr. Andrews’ driving, and what he referred to as a “slight driving pattern”. He said again that the accused was slightly impaired, and found him guilty of impaired driving. Considering the passage as a whole, I am satisfied that the Provincial Court judge made the necessary distinction between impairment generally and impairment of ability to drive.
[49] Counsel for Mr. Andrews did not suggest that the reasons for judgment of the Provincial Court judge disclosed any misapprehension as to the effect of Stellato. However, he said that remarks made by the judge during argument did. He relied in particular on the following:
“I have read the Stellato case several …. times because it is rather innovative and quite a dramatic change from the McKenzie case that we felt was the Bible for so many years on this.”
After discussing Stellato and the evidence in this case, the Provincial Court judge continued:
“Now that, as I say, probably under the old McKenzie rule would not establish a marked departure from the norm, but as I say, the significance of the Stellato case, among other things, is that McKenzie is not the law and that there is evidence of slight degree of impairment is sufficient to justify a conviction.”
[50] Counsel for Mr. Andrews submitted that the Provincial Court judge misapprehended the effect of Stellato when he said that it overruled McKenzie. The difficulty with this argument is that before Stellato, different courts interpreted McKenzie in different ways. This court set out its interpretation of McKenzie in R. v. Smith (1992), 1992 ABCA 159 (CanLII), 73 C.C.C. (3d) 285. The Provincial Court judge in this case was bound by Smith until the Supreme Court decided Stellato. In Stellato the Supreme Court overruled Smith. Against this background, the remarks of the Provincial Court judge are understandable and unexceptional. It is necessary to analyze these cases to understand the position in which the Provincial Court judge found himself, and to appreciate his remarks.
[51] I will deal first with McKenzie. Mr. McKenzie was charged with operating a motor vehicle while his ability to do so was impaired by alcohol. He was convicted by a magistrate, and appealed to the District Court. In 1955 Judge Sissons heard this appeal in the District Court as a trial de novo.
In his reasons for judgment in McKenzie Judge Sissons said at p. 319:
“If a combination of several tests and observations shows a marked departure from what is usually considered as the normal, it seems a reasonable conclusion that the driver is intoxicated with consequent impairment of control of faculties and therefore that his ability to drive is impaired.
I do not think such a finding should be made on a slight variation from the normal.”
[52] In 1977 in R. v. Conlon (1977) on an appeal from a conviction for impaired driving, counsel argued that the evidence did not disclose a marked departure from the normal. He relied on McKenzie. Judge Kerans, as he then was, rejected this argument. In doing so, he made the following comments at p. 98 on McKenzie:
“It was never the intention of McKenzie to say that impairment means marked impairment but rather to say that there must be a doubt when you are relying on physical signs alone and those signs are ambiguous.”
[53] In 1988 Judge Salhany, then of the District Court of Ontario, heard an appeal by a Mr. Winlaw from his conviction of driving a motor vehicle while his ability to do so was impaired by alcohol (R. v. Winlaw (1988). Counsel for Mr. Winlaw argued that the trial judge erred in finding that “a departure, however slight from normal behaviour” was sufficient to justify a conviction (p. 115). He relied on McKenzie. Judge Salhany disagreed. He said at p. 115:
“What Sissons C.D.C.J. was attempting to formulate was a test for the determination of whether certain conduct viewed objectively was consistent only with impairment and inconsistent with some other explanation. He was not attempting to formulate a test as to what degree of impairment will constitute impairment for the purposes of s. 237(a) of the Criminal Code, . Indeed, it is significant to note that s. 237(a) makes it an offence to operate a motor vehicle while ones ability to operate the vehicle ‘is impaired by alcohol or a drug.’ The section does not require that there be a ‘marked impairment or any other degree of impairment. Impairment is impairment and any kind of impairment, even slight is enough to constitute the offence.”
[54] However in 1992, in a memorandum of judgment in Smith, supra, this court affirmed the “marked departure from the norm” test and McKenzie (at p. 288). In this memorandum Mr. Justice McClung cited many cases in which McKenzie had been applied, and specifically rejected the interpretations placed on McKenzie by Judge Salhany and Judge Kerans. He said at pp. 286, 287:
“McKenzie seems to have been generally accepted. The courts that have employed it have found it to be a useful adjudicative tool that supplies some consistency to the trial of these cases and the assorted facts brought before them. Its value lies in its use as a general threshold of proof that counterbalances the generosities (or pruderies) of the many judges and juries who have to decide the issue. In our view the test has proved useful, realistic, and after 37 years, is now safe, we think, from incursion.”
[55] Mr. Justice McClung found (at p. 287) that the test in McKenzie was set out in the paragraphs from the judgment in that case which I quoted above, plus a further passage (at p. 320), which Mr. Justice McClung quoted as follows at p. 287:
“[Prosecution should fail if] … the possibility that the variance from the normal may have been slight.”
[56] The decision of this court in Smith was binding on the courts of this province until the Supreme Court of Canada handed down its decision in Stellato.
[57] Mr. Stellato was convicted in the Ontario Court (Provincial Division) of having the care and control of a motor vehicle while his ability was impaired by alcohol. He appealed to the Ontario Court (General Division), where his appeal was dismissed. He then appealed to the Court of Appeal of Ontario ((1993), 1993 CanLII 3375 (ON CA), 78 C.C.C. (3d) 380). There he argued that the General Division judge who dismissed his appeal had erred in relying on Judge Salhany’s interpretation of McKenzie. He said that the onus was on the Crown to prove that his conduct demonstrated a marked departure from that of a normal person. The Court of Appeal rejected this argument.
[58] In that case Mr. Justice Labrosse, writing for the court, said after a discussion of Smith (at p. 384):
“With all due respect to those who hold a contrary view, it is my opinion that the interpretation of s. 253(a) which was advanced in Winlaw, Bruhjell [(1986) unreported (B.C. C.A.)] and Campbell [(1991), is the correct one. Specifically, I agree with Mitchell J.A. in Campbell that the Criminal Code does not prescribe any special test for determining impairment. In the words of Mitchell J.A., impairment is an issue of fact which the trial judge must decide on the evidence and the standard of proof is neither more nor less than that required for any other element of a criminal offence: courts should not apply tests which imply a tolerance that does not exist in law.”
[59] Mr. Stellato appealed to the Supreme Court of Canada. In dismissing this appeal, Chief Justice Lamer said (supra at p. 160):
“We are all of the view for the reasons given by Mr. Justice Labrosse for the Court of Appeal that the appeal fails.”
[60] It is against this background that I must consider the remarks made by the Provincial Court judge during argument in this case. Counsel for Mr. Andrews says that they amount to misdirection. I do not agree. I will repeat the remarks for ease of reference.
“I have read the Stellato case several times because it is rather innovative and quite a dramatic change from the McKenzie case that we felt was the Bible for so many years on this.”
“Now that, as I say, probably under the old McKenzie rule would not establish a marked departure from the norm, but as I say, the significance of the Stellato case, among other things, is that McKenzie is not the law and that there is evidence of slight degree of impairment is sufficient to justify a conviction.”
[61] I am satisfied that what the Provincial Court judge meant when he made these remarks was first, that the interpretation which this court had placed on McKenzie was no longer the law; and second, that as a result, a trial judge should not apply the marked departure test to determine whether an accused’s ability to drive was impaired. He was right, and the Queen’s Bench judge was right, in turn, when he said that the Provincial Court judge made no error of law. If the trial judge had applied the marked departure test, he would have erred in law.
[62] McKenzie may still be of assistance in weighing evidence of impairment. However, since it has been interpreted in different ways by different courts, it seems to me that trial judges would be well advised to seek guidance elsewhere. In the passage which I quoted above from Stellato, Mr. Justice Labrosse clearly disapproved of the use of any special test in determining impairment of ability to drive. He said: impairment is an issue of fact which the trial judge must decide on the evidence and the standard of proof is neither more nor less than that required for any other element of a criminal offence ….”
The Supreme Court of Canada adopted these comments. Trial judges require no further guidance.
[63] For these reasons, I would dismiss this appeal.
