nan QUEEN’S BENCH FOR SASKATCHEWAN Citation: 2011 SKQB 244 Date: 2011 06 22 Docket: Q.B.C.A. No. 44/2010 Judicial Centre: Saskatoon BETWEEN: ROY JOHN RODGERS, and HER MAJESTY THE QUEEN, as represented by the Attorney General of Saskatchewan, Counsel: Ronald P. Piché for the appellant K. Scott Bartlett, Q.C. for the respondent Crown JUDGMENT GABRIELSON J. June 22, 2011 Introduction [1] This is a summary conviction appeal from a judgment dated September 17, 2010, wherein the learned Provincial Court judge convicted the appellant of impaired care and control of a motor vehicle contrary to s. 253(1)(a) of the Criminal Code, fined him $1,000.00 and prohibited him from driving for one year. In the same judgment, the learned trial judge acquitted the appellant of a second charge of operating a motor vehicle while his blood alcohol content exceeded the legal limit of .08 contrary to s. 253(1)(b) of the Criminal Code. [2] The grounds of appeal as set out in the notice of appeal are: 1. The learned trial judge erred in considering evidence that was not admissible on the impaired count in convicting the appellant of operating motor vehicle while impaired; 2. The learned trial judge’s conviction on the count of operating motor vehicle while impaired constitutes an unsafe and/or dangerous verdict in law; 3. The learned trial judge erred in rejecting the evidence of the central Crown witness as this witness provided exculpatory evidence. The learned trial judge provided no basis for rejecting his evidence and relied on speculation rather than evidence in arriving at his conclusion. [3] The appellant is senior member of the Saskatoon Police Service. In the early morning hours of May 24, 2009, he was off duty and was observed by third party to be operating motor vehicle which had just jumped curb and was parked in lot at the corner of 22nd Street and Idylwyld Drive in Saskatoon. Two on‑duty Saskatoon Police Service officers, Cst. Bzdel and Cst. Noesgaard, were notified, and they attended at the scene. They spoke to the appellant, who was in care and control of the motor vehicle. As the appellant showed some signs of impairment, but was senior to the two officers, they requested more senior officer to attend at the scene in accordance with Saskatoon Police Service policy. The senior officer attended, heard the facts from the officers in question and instructed Cst. Bzdel to administer an ASD demand. When the appellant failed the ASD demand, demand for breath sample was made, and the appellant was taken to the police station. Following breathalyser reading which registered .13 at 4:02 a.m. and .12 at 4:22 a.m., the appellant was charged with both offences. [4] At trial, Cst. Noesgaard testified that he had observed signs of impairment of the appellant, which he described as bloodshot red eyes, flushed face, slurred speech, strong smell of alcohol on his breath, dry lips, mouth appeared to be dry, constantly licking his lips and constantly smacking his lips. Cst. Bzdel testified that the only symptom of impairment of any significance that he noted was that the appellant had alcohol on his breath. third officer, Cst. Flogan, the breathalyser operator, testified that he noted that the appellant appeared to have been drinking, that he had bloodshot eyes, that he smelled of alcohol and that, having worked with the appellant in the past, he formed the opinion that the appellant was drunk. [5] In his judgment, the learned trial judge concluded that, as result of delay of approximately 45 minutes between the first attendance upon the appellant by the two officers and the time of the demand for the breath sample, the accused had been arbitrarily detained and not advised of his right to counsel, which was in violation of his Charter rights. Accordingly, the learned trial judge ruled that the certificate of analyses was not admissible as evidence. The learned trial judge, therefore, found the appellant not guilty of Count No. of the information. However, the learned trial judge found that based upon the evidence of Cst. Noesgaard and Cst. Flogan, the Crown had proven that the appellant was impaired while in care and control of motor vehicle, so that he therefore convicted the appellant on the first count. Statement of Issues [6] There are three issues on this appeal which I will discuss in the order they were raised by counsel in argument: 1. Did the trial judge err in law in his treatment of the evidence of Cst. Bzdel? 2. Did the trial judge err in considering the observations made by Cst. Noesgaard concerning the appellant’s slurred speech as evidence to be admitted on the impaired driving count? 3. Does the conviction for impaired operation of a motor vehicle constitute an unsafe verdict? 1. Did the trial judge err in law in his treatment of the evidence of Cst. Bzdel? [7] Counsel for the appellant submitted that the learned trial judge rejected or ignored the evidence of Cst. Bzdel. While acknowledging that judge can accept or reject any evidence, counsel submitted that as Cst. Bzdel was the senior officer on the scene and the main investigator, his evidence that the only symptoms of impairment that he noted on the appellant of any significance was that he could smell alcohol on the breath of the appellant should have carried considerable weight. Counsel pointed out that Cst. Bzdel also agreed with appellant’s counsel that the degree of impairment cannot be determined by the odour of alcohol. Counsel submitted that, in cross‑examination, Cst. Bzdel also confirmed that there was nothing in his report to indicate lack of motor skills (Transcript, p. 132), that the appellant’s speech was noted on the form as “good” and that the question on the form as to difficulty pronouncing words was noted as “no” (Transcript, p. 134). [8] Counsel for the appellant suggests that the learned trial judge speculated that Cst. Bzdel was deliberately concealing or fabricating his evidence to assist the appellant who was colleague on the police force. Counsel for the appellant refers to the case of R. v. Hayes, 2007 NSSC 74 (CanLII), 253 N.S.R.(2d) 235, at paragraph 26 for the proposition that trial judge should not rely on conjecture or speculation in order to determine whether an accused was guilty of impaired operation of motor vehicle pursuant to s. 253 of the Criminal Code. [9] Counsel for the respondent submitted that the learned trial judge clearly recognized contradiction between the evidence of Cst. Bzdel and that of Cst. Noesgaard and Cst. Flogan. However, rather than ignoring the evidence of Cst. Bzdel, the learned trial judge carefully compared the evidence of all three officers and made judicial decision supported by reasons based on the evidence that he would accept the evidence of Cst. Noesgaard and Cst. Flogan. Counsel for the respondent submitted that this was an appropriate exercise of judicial discretion. [10] In his analysis, the learned trial judge carefully compared the symptoms of impairment noted by both Cst. Noesgaard and Cst. Bzdel. With respect to Cst. Noesgaard, the learned trial judge found as follows: [15] First, he noted that the operator of the motor vehicle was the accused in this matter, and that he was an officer significantly senior to him, with the Saskatoon Police Service. He also noticed that certain signs of impairment were evident. He noted bloodshot red eyes on the face of Rodgers, that Rodgers had flushed face, that his speech was slurred, and that he could smell alcohol coming from his breath. [19] In this meeting with the accused he recalled the same symptoms of impairment that he had noted earlier, and added the following symptoms. The accused had dry lips, his mouth appeared to be dry, he was constantly licking his lips, and that he was as well smacking his lips. [11] The learned trial judge found as follows in respect to the symptoms of alcohol impairment observed by Cst. Bzdel: [22] He testified that the only symptom of impairment that he noted on Rodgers of any significance was that Rodgers had alcohol on his breath. [12] The learned trial judge recorded the observations of Cst. Flogan as follows: [25] The last officer to testify was Cst. Flogan the breath technician, to whom Rodgers was taken for breath samples. He indicated that he knew Cst. Rodgers well and had worked with him in the past. He indicated that he had asked Rodgers series of standard questions before the breathalyzer and noted that Rodgers appeared to have been drinking. He had bloodshot eyes, he smelled of alcohol from his breath and Cst. Flogan testified that in his opinion Rodgers was drunk. He also testified that he had, from previous work with Rodgers, seen him sober and compared the two situations in drawing his conclusion. [13] In comparing the observations as to alcohol impairment, the learned trial judge stated at paragraph 39: [39] Paragraph 2(a)(1) [of the Saskatoon Police Service policy concerning investigations involving police officers, which was marked as Exhibit D‑1 at the trial] refers to an officer acting “thoroughly and expeditiously”. In this case very clearly Cst. Bzdel did not deal with the matter thoroughly or expeditiously as evidenced by the lack of notes, the lack of detail provided with respect to the incident and more importantly the forty‑seven minute delay occasioned by him. [54] First with regard to Cst. Noesgaard in contradistinction to the observations of Cst. Bzdel, he took notes and did so as the investigation proceeded right from the very beginning. He recorded the times in his notes and took appropriate action throughout the evening. This is as it should be in all cases, and in particular where the investigation by police officer relates to the potentially criminal conduct of fellow officer. [14] The learned trial judge concluded his analysis at paragraph 58: [58] Based on my analysis of Cst. Bzdel’s handling of the case up to the point of the ASD demand being made have no hesitation in concluding that the evidence of Cst. Noesgaard, the evidence of Cst. Flogan, support the conclusion that the accused was impaired on this occasion. Their evidence on the issue of the symptoms of impairment that were displayed by the accused is preferred by me to the evidence of Cst. Bzdel. [15] As can be seen from the above, the learned trial judge did not ignore or reject the evidence of Cst. Bzdel. The learned trial judge provided extensive reasons why he accepted the evidence of Cst. Noesgaard and Cst. Flogan in preference to that of Cst. Bzdel. It must be remembered that the trial judge is in special position on matters of credibility by being able to observe the witness at the time of testimony and compare their observations to the testimony of other witnesses. Having reviewed the transcripts of their evidence, am satisfied that the findings of the learned trial judge in regard to the testimony of the three police officers in question accurately describes their evidence. [16] In my opinion, the learned trial judge did not resort to conjecture or speculation as suggested by counsel for the appellant. In the case of R. v. Hayes, 2007 NSSC 74 (CanLII), 253 N.S.R. (2d) 235, which was referred to by the appellant as authority for the proposition that the trial judge cannot rely on conjecture or speculation, the Crown appealed the summary conviction appeal court (“SCAC”) decision pursuant to s. 839 of the Criminal Code. The Nova Scotia Court of Appeal overturned the SCAC decision and restored the trial judge’s decision. The Court of Appeal held that the SCAC judge erred when he misunderstood the trial judge’s credibility finding and when he substituted his own view of the witness’s credibility for that of the trial judge. At paragraph 33 of their decision, found at R. v. Hayes, 2008 NSCA 23 (CanLII), 263 N.S.R. (2d) 314, the Court stated: [33] The trial judge presided over the trial and had the opportunity to see and hear Mr. Hayes testify. He was in better position to judge Mr. Hayes’ credibility on the issue of his intention than the SCAC judge or this court who must rely on the written record. The trial judge's conclusion on credibility is entitled to deference. [17] In the case of R. v. J.N.B., 1991 CanLII 111 (SCC), [1991] S.C.R. 66, the Supreme Court of Canada also commented on when an appellate court should interfere with trial judge’s findings of witness credibility. At paragraph 3, the Court stated: nan The trial judgment was based substantially on an express finding of credibility with respect to the evidence of the complainant. There is nothing in the record to indicate that there was any inherent improbability in her evidence or any other basis which would justify interference by an appellate court with the findings of the trial judge. Moreover there was some support for her testimony in other evidence which was accepted by the trial judge. [18] In this case, the learned trial judge made express findings of credibility concerning the evidence of Cst. Noesgaard and Cst. Flogan, preferring their evidence to that of Cst. Bzdel. Having reviewed their evidence, there is no inherent improbability which would justify interference by me with the learned trial judge’s findings concerning their evidence. I, therefore, do not accept this ground of appeal. 2. Did the trial judge err in considering the observations made by Cst. Noesgaard concerning the appellant’s slurred speech as evidence to be admitted on the impaired driving count? [19] The appellant’s position is that Cst. Noesgaard’s evidence of the appellant’s slurred speech should have been excluded for the same reasons that the learned trial judge excluded the actual statements by the accused as violation of the appellant’s Charter rights pursuant to s. 10(b). Counsel for the appellant submitted that the observation by Cst. Noesgaard concerning the appellant’s slurred speech was made before the appellant was provided with his s. 10(b) rights notice. Counsel for the appellant referred to the cases of R. v. Orbanski, 2005 SCC 37 (CanLII), [2005] S.C.R. 3; R. v. Hult, 2008 SKQB 52 (CanLII), 63 M.V.R. (5th) 287; R. v. Demers, 2006 SKPC 65 (CanLII), 282 Sask. R. 62, and R. v. Coles, 2005 ABPC 277 (CanLII), as authority for the proposition that observations of slurred speech while the appellant was detained and prior to being afforded the right to counsel is inadmissible. [20] Counsel for the respondent submitted that Cst. Noesgaard’s observations concerning slurred speech were not part of conscripted evidence which would place the administration of justice into disrepute in Charter analysis pursuant to s. 10(b) and s. 24(2). Counsel for the appellant referred to the cases of R. v. Orbanski, supra, and R. v. Sundquist, 2000 SKCA 50 (CanLII), 189 Sask. R. 273, as cases in which the Court held that it was only physical sobriety tests that were conscriptive. [21] In the recent case of R. v. Rivera, 2011 ONCA 225 (CanLII), 104 O.R. (3d) 561, the Ontario Court of Appeal analysed several recent appellate court decisions as to when the results of roadside sobriety tests can be used for the purpose of proof of an offence or for challenging the credibility of an accused. Beginning at paragraph 54, the Court stated: [54] ... the law now recognizes the constitutionality of traffic stops, like those in this case, to check drivers for sobriety, even where there are no objective grounds for the stop: see Elias [2005 SCC 37 (CanLII), [2005] S.C.R. 3], at paras. [55] The Supreme Court of Canada has recognized that these stops constitute reasonable limit on Charter rights because of the extreme danger represented by unlicensed or impaired drivers on the roads. In particular, Elias holds that this reasonable limit on the s. 10(b) right extends to questioning by police officer of detained driver about his or her alcohol consumption as part of the investigation into the sobriety of the driver. [56] At para. 58 in Elias, Charron J. held that the limitation meets the proportionality test because “evidence obtained as result of the motorist’s participation without the right to counsel can only be used as an investigative tool to confirm or reject the officer’s suspicion that the driver might be impaired.” Further, in that same paragraph and citing with approval this court’s decisions in Milne [(1996), 1996 CanLII 508 (ON CA), 28 O.R. (3d) 577 (Ont. C.A.), leave to appeal refused, [1996] S.C.C.A. No. 353, [1996] S.C.R. xiii] and Coutts [(1999), 1999 CanLII 3742 (ON CA), 45 O.R. (3d) 288 (Ont. C.A.)], she held that such evidence “cannot be used as direct evidence to incriminate the driver”. [57] In Milne, Moldaver J.A. held at p. 590 that the results of roadside sobriety tests performed by an accused at the direction of police officer prior to being informed of the right to counsel are not admissible at trial as evidence of impairment on the charge of impaired driving. Such evidence may be used to justify the officer’s demand for breath sample, but it would be unfair to allow the Crown to introduce such evidence at trial to prove impairment. This is because the accused had not been informed of the right to counsel when the tests were performed. [22] However, although the results of roadside sobriety tests are not admissible at trial as evidence of impairment unless an accused has been informed of right to counsel, appellate courts have also distinguished self‑incriminating statements from observations made by investigating officers. In the case of R. v. Orbanski, supra, at paragraph 58, the Court stated: 58 .. As noted by Moldaver J.A. in Milne, at p. 131, it is not difficult to find proportionality in so far as the liberty interest of the detained motorist is concerned because roadside screening techniques “take but little time and cause only minor inconvenience to the motorist”. He stated, however, that “the same cannot be said about the ‘risk of incrimination’ component if, in fact, the motorist can be compelled to create self‑incriminating evidence that can later be used at trial” (p. 131). agree with this conclusion. As stated in Milne, this limitation applies only to evidence obtained from the compelled direct participation by the motorist in roadside tests and, in our case, police questioning about alcohol consumption. Moldaver J.A. explained further, at p. 132: am not referring to observations the officer might make of the driver while carrying out other authorized duties. Thus, by way of example, an officer may observe signs of impairment in driver, such as strong odour of alcohol, blood‑shot and glassy eyes, dilated pupils, slurred speech, unsteadiness of gait upon the driver exiting the vehicle, or other similar signs. These observations would be admissible at trial to prove impairment. [Emphasis added] [23] Several Saskatchewan cases have also referred to slurred speech as something that trial judge is justified in considering as proof of an indicator of impairment. See R. v. Yuzicapi, 2010 SKQB 137 (CanLII), 351 Sask. R. 227; R. v. Kirkness, 2008 SKQB 259 (CanLII), 318 Sask. R. 80, and R. v. MacDonald (1996), 1996 CanLII 7066 (SK QB), 146 Sask. R. 306 (Q.B.). [24] Slurred speech is known physical indicator of impairment absent some evidence of another cause. While statements made by the accused may not be introduced to prove impairment unless he has been advised of his Charter rights, physical manifestation such as slurred speech may be introduced as evidence to prove impairment. Accordingly, do not accept this ground of appeal. 3. Does the conviction for impaired operation of a motor vehicle constitute an unsafe verdict? [25] The appellant’s position is that the evidence indicating the appellant was impaired, at best, consisted of bloodshot eyes, flushed face, slurred speech and the smell of alcohol. Counsel for the appellant submitted that Cst. Noesgaard agreed there could be other reasons for bloodshot eyes. Counsel further submitted that it is well known that alcohol is odourless and should not, in and of itself, be an indicator of impairment. Counsel submitted that slurred speech, even if admissible, was observed only for brief time and was lacking in any detail. Counsel submitted that flushed face and bloodshot eyes are ambivalent at best. Finally, counsel submitted that none of these observations are determinative of the effect of alcohol on the ability of the accused to drive. Counsel for the appellant refers to the cases of R. v. Flasch, 2004 SKQB 521 (CanLII), 12 M.V.R. (5th) 106; R. v. Holman (1998), 1998 CanLII 13860 (SK QB), 173 Sask. R. 214 (Q.B.), and R. v. Landes (1997), 1997 CanLII 11314 (SK QB), 161 Sask. R. 305 (Q.B.). Finally, counsel for the appellant refers to the case of R. v. Andrews, 1996 ABCA 23 (CanLII), 178 A.R. 182, as authority for the proposition that slight impairment is not sufficient and the question is whether the individual’s functional ability to drive motor vehicle is impaired. [26] Counsel for the respondent submitted that there were sufficient indicia of impairment from the evidence of Cst. Noesgaard and Cst. Flogan to provide an evidentiary basis for the learned trial judge’s finding of impairment. Counsel referred to the cases of R. v. Stellato (1993), 1993 CanLII 3375 (ON CA), 78 C.C.C. (3d) 380 (Ont. C.A.), aff’d 1994 CanLII 94 (SCC), [1994] S.C.R. 478, and R. v. Wilton, 2007 SKPC 141 (CanLII), 306 Sask. R. 117, aff’d 2009 SKQB 405 (CanLII), 345 Sask. R. 81. [27] In the case of R. v. Stellato, supra, the Ontario Court of Appeal summarized the duty of trial judge in cases of impaired driving as follows: 14 In all criminal cases the trial judge must be satisfied as to the accused’s guilt beyond reasonable doubt before conviction can be registered. Accordingly, before convicting an accused of impaired driving, the trial judge must be satisfied that the accused’s ability to operate motor vehicle was impaired by alcohol or drug. If the evidence of impairment is so frail as to leave the trial judge with 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. [28] The Stellato case has also been applied in Saskatchewan. In the case of R. v. Hall (1994), 1994 CanLII 4630 (SK CA), 125 Sask. R. 62 (C.A.), the Court stated at paragraph 8: .. The essence of Stellato ... is to avoid the application of some rigid standard which might deprive the trier of fact of determining on all the facts whether an accused was indeed impaired. The trier of fact no longer asks the question: does the accused’s behaviour or physical characteristics represent marked departure from the norm. trier of fact may be able to infer impairment from behaviour which is far outside the norm, but if such behaviour is not present, impairment may be inferred, in the appropriate case, from something less. The trier of fact must, of course, be satisfied beyond reasonable doubt that the accused’s ability to operate motor vehicle was impaired. ... [29] In the case of R. v. MacDonald, supra, Baynton J. also rejected the suggestion that there must be marked departure. At paragraph 10, he stated: [10] It is now common knowledge that person’s judgment, perception, and reaction time can be detrimentally affected by level of alcohol consumption that may not be manifested in observable conduct such as the manner of walking or talking. Such person may well be able to walk in straight line or speak without slur, but is danger behind the wheel of an automobile where judgment and reaction time is critical to the safety of others on the road. By the time person has had enough to drink that his or her observable conduct exhibits marked departure from the norm (such as staggering or slurred speech) that person’s judgment and reaction time (and thus the ability to drive motor vehicle) is substantially impaired. As matter of common sense, if the McKenzie threshold of evidence is still the law, then conviction for impaired driving could never be made unless the degree of impairment was great. This is clearly inconsistent with the decision and reasoning in Stellato. [30] In this case, the learned trial judge concluded that the Crown had proven beyond a reasonable doubt sufficient evidence of impairment to meet the standard as set out in the Stellato decision. The learned trial judge stated that he based his decision upon the evidence of Cst. Noesgaard and Cst. Flogan. This evidence was found at paragraphs 55‑57 of his judgment. [55] Cst. Noesgaard noticed immediately that the accused had bloodshot eyes, flushed face, slurred speech and smelled of alcohol. This was further corroborated by his second contact with the accused where approximately ten minutes later he noticed that the accused had dilated pupils, his lips were dry, he licked his lips, and he smacked his lips even when he was not talking. [56] In addition Cst. Flogan’s evidence was that the accused was drunk. That evidence as statement of fact is clearly not admissible to prove that he was in fact drunk as it was conclusary in nature. It is up to the Court to decide what the level of impairment of an accused person is and up to witnesses to say what symptoms of impairment that they witnessed. To that extent even Cst. Flogan could say with his limited exposure to the accused on that occasion was that he had alcohol on his breath, bloodshot eyes, and again his conclusion was that he was drunk. [57] That conclusion is obviously not supported by the symptoms he described but it is something that can consider without accepting the conclusion that he did. The fact of the matter is that he knew the accused and had worked with him on previous occasions and was comparing him, on this occasion, to when he’d been working with him when presumably he was not “drunk”. can’t simply ignore his evidence and it seems to be corroborative of other symptoms of impairment that both he and Cst. Noesgaard noticed. Very often the best comparison can come from somebody who knows an accused person when one is asked to compare him under the influence of alcohol versus sober and while don’t accept the conclusion by Cst. Flogan that the accused was drunk, can accept that in his opinion he certainly was displaying symptoms that he wouldn’t normally display. [31] In the case of R. v. Bigsky, 2006 SKCA 145 (CanLII), [2007] W.W.R. 99, the Saskatchewan Court of Appeal referred to the standard of review when s. 686(1)(a)(i) of the Criminal Code is invoked. At paragraph 74 of that case, the Court stated: [74] Subclause 686(1)(a)(i) of the Code may only be invoked where the appellate court has considered all of the evidence before the trier of fact and determined that “the verdict should be set aside on the ground that it is unreasonable or cannot be supported by the evidence.” The standard of appellate review derived from this section is “whether the verdict is one that properly instructed jury acting judicially could reasonably have rendered.” See: R. v. Yebes [1987 CanLII 17 (SCC), [1987] S.C.R. 168]; and R. v. Biniaris [2000 SCC 15 (CanLII), [2000] S.C.R. 381]. Similarly, in Burns [1994 CanLII 127 (SCC), [1994] S.C.R. 656] the Supreme Court of Canada indicated that “[i]n proceeding under s. 686(1)(a)(i), the court of appeal is entitled to review the evidence, re‑examining it and re‑weighing it, but only for the purpose of determining if it is reasonably capable of supporting the trial judge’s conclusion; that is, determining whether the trier of fact could reasonably have reached the conclusion it did on the evidence before it.” Courts of appeal often state the test in terms of whether there is evidence upon which the trier of fact properly instructed could reasonably reach the verdict. [32] am satisfied that the learned trial judge analysed all of the evidence before him as was appropriate, rather than using piecemeal approach, which was rejected in the case of R. v. Hall, supra. Having reviewed the transcript, am satisfied that there was ample evidence to justify the learned trial judge’s conclusion that the appellant’s ability to be in the care and control of motor vehicle was impaired by alcohol. The learned trial judge made no palpable or overriding error to justify overturning his decision: R. v. Yebes, 1987 CanLII 17 (SCC), [1987] S.C.R. 168, and R. v. Bigsky, supra Conclusion [33] The appeal against the conviction is dismissed. J. N.G. Gabrielson
The appellant was convicted of impaired care and control and acquitted of a charge of care and control with a blood alcohol level exceeding .08 because of Charter violations. The appellant was senior member of the Saskatoon Police Force who was charged by members of his police force. The trial judge based his conviction on the evidence of two officers who testified that they observed signs of impairment including bloodshot, red eyes, flushed face, slurred speech, strong smell of alcohol on his breath and dry lips and mouth. In convicting the accused, the trial judge rejected the evidence of third officer who testified that the only sign of impairment he noted on scene was that the appellant had alcohol on his breath. The issues on appeal were whether the trial judge erred in his treatment of the evidence of the third officer, whether the trial judge erred in considering the observations of the other two officers as evidence to be admitted on the impaired driving count and whether the conviction for impaired driving was an unsafe verdict. HELD: The appeal was dismissed. The trial judge did not ignore or reject the evidence of the third officer. He provided extensive reasons why he preferred the evidence of the other two officers to the evidence of the third officer. The trial judge is in special position to assess the credibility of witnesses by being able to observe the witnesses as they testify and compare their observations to the testimony of the other witnesses. The findings of fact in regard to the testimony of the three police officers are supported by the transcript of their evidence and do not amount to conjecture of speculation. The trial judge made express findings of credibility with respect to the two officers and preferred their evidence to that of the third officer. There is no inherent improbability that would justify interference with the trial judge's findings on credibility. The appellant argued that the officer's evidence that the appellant had slurred speech should have been excluded because the trial judge excluded the actual statements made by the accused as violation of the accused's Charter rights under s. 10(b). Slurred speech is known physical indicator of impairment absent evidence of another cause. While statements made by an accused may not be introduced to prove impairment unless the accused has been advised of his Charter rights, physical manifestation such as slurred speech may be introduced to prove evidence of impairment. The appellant's argument that the verdict is unsafe or unreasonable was also rejected. The trial judge concluded that the Crown had proven beyond a reasonable doubt that there was evidence of impairment sufficient to meet the standard in R. v. Stellato. There was no palpable or overriding error in the verdict.