Impaired Operation of Motor Vehicle

Impairment may be established where the prosecution proves any degree of impairment from slight to great

The offence of impaired driving has been made out where the evidence of impairment establishes beyond a reasonable doubt any degree, from slight to great, of impairment by alcohol of the defendant’s ability to operate a motor vehicle.

R. v. Stellato, 1993 CanLII 3375 (ON CA), 78 C.C.C. (3d) 380, aff’d 1994 CanLII 94 (SCC), [1994] 2 S.C.R. 478.

Slight impairment to drive relates to a reduced ability in some measure to perform a complex motor function whether impacting on perception or field of vision, reaction or response time, judgment, and regard for the rules of the road.

R. v. Censoni, [2001] O.J. No. 5189 at para. 47 (S.C.J. per Hill J., cited with approval in R. v. Bush, 2010 ONCA 554 (CanLII), [2010] O.J. No. 3453 at par. 47 (C.A.)).

Impairment must be in relation to the ability to drive

As the Alberta Court of Appeal has held in R. v. Andrews (1996), 1996 ABCA 23 (CanLII), 104 C.C.C. (3d) 392, (leave to appeal refused [1996] S.C.C.A. 115), however, the core issue is whether the defendant’s consumption of alcohol impaired his ability to drive.  The Court wrote, at paragraph 31:

... 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.

Is there an explanation for the defendant’s conduct other than impairment?

In analyzing the evidence in order to decide if the offence has been proven, the courts have frequently considered the various matters set out in R. v. McKenzie, (1955), 111 C.C.C. 317 (Alta. D.C.). As the Ontario Court of Appeal held in Bush, these matters are appropriate to consider as an approach to the weighing of the evidence, to determine whether the defendant’s conduct viewed objectively was consistent only with impairment and inconsistent with some other explanation. They are not the only measures to consider; other things to take note of include

·         the manner of driving,

·         reaction to the attempts of the police to have the driver stop his or her vehicle, and

·         behaviour while interacting with police.

No one factor should be considered in isolation; all of the circumstances must be taken together.

R. v. Andrea, [2004] N.S.J. No. 399 (C.A.).

 In McKenzie, Sissons D.C.J. stated:

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.

The totality of the circumstances must be considered.

See R. v. Shepherd, [2009] 2 S.C.R. 527, [2009] S.C.J. No. 35at para. 21; R. v. Rhyason, [2007] 3 S.C.R. 108, [2007] S.C.J. No. 39, 2007 SCC 39 (CanLII); R. v. Elvikis, [1997] O.J. No. 234, 31 O.T.C. 161 (Gen. Div.), at para. 26; R. v. Censoni, [2001] O.J. No. 5189, [2001] O.T.C. 948, 22 M.V.R. (4th) 178, 52 W.C.B. (2d) 179 (S.C.J.), at para 47.

An assessment of whether the officer objectively had reasonable and probable grounds does not involve the equivalent of an impaired driver scorecard with the list of all the usual indicia of impairment and counsel noting which ones are present and which are absent as the essential test. There is no mathematical formula with a certain number of indicia being required before reasonable and probable grounds objectively existed.

 Censoni, at para. 46.