nan CANADA S. LP. O. 0772 PROVINCE OF NOVA SCOTIA IN THE SUPREME COURT OF NOVA SCOTIA HER MAJESTY THE QUEEN versus JACK SCOTT COOK DECISION HEARD BEFORE: THE HONOURABLE JUSTICE HIRAM J. CARVER DECISION: MAY 17, 1995 WRITTEN RELEASE OF DECISION: MAY 17, 1995 COUNSEL: C. CRAIG HARDING, FOR THE PROSECUTION; DUNCAN BEVERIDGE, FOR THE DEFENCE CARVER, J.: This is an appeal by the appellant, Jack Scott Cook, from a decision of The Honourable Judge Anne E. Crawford wherein she convicted the appellant of the offence of driving a motor vehicle on September 4, 1992 while his ability to operate a motor vehicle was impaired by alcohol. GROUNDS OF APPEAL: 1. That the Learned Trial Judge erred in law in misapprehension of evidence and in failing to have regard to or direct herself to all of the evidence bearing on the relevant issues; 2. That the Learned Trial Judge erred in law in that she failed to direct herself or misdirected herself in law as to the appropriate burden of proof in a criminal case; 3. That the Learned Trial Judge erred in holding that the Appellant's ability to operate motor vehicle was impaired by alcohol or drug within the meaning of s.253(a) of the Criminal Code; 4. That the Learned Trial Judge erred in her interpretation of the phrase "while the person's ability to operate the vehicle is impaired by alcohol" as found in s.253(a) of the Criminal Code that the verdict is unreasonable or cannot be supported by the evidence; 5. Such further and other grounds as may be apparent from the transcript of the evidence and may be allowed by this Honourable Court. ISSUES: 1. Did the trial judge err in law in failing to direct herself in law as to the appropriate burden of proof in a criminal case? 2. Did the trial judge utilize the absence of evidence from the appellant to conclude that the appellant was impaired and therefore fell into error; 3. Did the trial judge err in holding that the appellant's ability to operate motor vehicle was impaired by alcohol within the meaning of s.253(a) of the Criminal Code. FACTS: The trial judge found Mrs. Conrad was travelling behind another motor vehicle and, while slowing down to turn right at an intersection, was struck from behind by the appellant's motor vehicle. Mrs. Conrad described the appellant when she met him after the collision as walking unsteadily and holding on to the van. She said when he saw her he said "Hi" which she thought was inappropriate in the circumstances. She noted no slurring. From her decision, Judge Crawford accepted the evidence of Constable Vincent. This she sets forth as follows: "Constable Vincent noted what he described as slight slurring of the accused's speech sufficient, so that he described it as being 'different from the norm'. wonder if he had been reading Smith. He also noted that the defendant was swaying on his feet, that his eyes were bloodshot and that his pupils were open and dilated. He asked the defendant if he had been drinking tonight and the defendant replied that he had not been drinking since 6:00 p.m. that evening and he added, 'I was driving in straight line and this girl pulled out in front of me.' Which is to be noted, is very different explanation of the accident from that established by the Crown from Mrs. Conrad's evidence, where Mrs. Conrad said that she was slowing for turn." The trial judge's decision consisted of opening remarks, the facts as have set forth above, and her dosing remarks. In her opening remarks she said: "THE COURT: have reviewed the cases to which have been referred and I'm satisfied that the test Is simply the test that the Crown must meet in any case on any issue, and that is, has the Crown proven beyond reasonable doubt on the facts as presented, that in this case, the accused's ability to drive was impaired by alcohol or drug." In her closing remarks she said: "Mr. Beveridge in his argument, urged me to consider that most, if not all of the indicia noted could be explained by other factors and, individually, that certainly could be the case. However, taking all of the indicia together, together with the fact that there was no explanation offered other than speculation in summation, find that the only reasonable explanation for all of the indicia that have mentioned is thatthe accused was impaired and that his ability to drive was impaired by alcohol or drug. so find and therefore find that he is guilty as charged." THE LAW: In the case of R. v. Stellato, (1993) 1993 CanLII 3375 (ON CA), 78 C.C.C. (3d) 380 Ont.C.A., Labrosse, J.A. made reference to comments made by Mitchell, J.A. in the case of R. v. Campbell (1991) 26 M.V.R. (2d) 155 (P.E.I. CA): "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 criminal offence. Before he can convict, trial Judge must receive sufficient evidence to satisfy himself beyond reasonable doubt that the accused's ability to operate motor vehicle was impaired by alcohol. It is not an offence to drive motor vehicle after having consumed some alcohol as long as it has not impaired the ability to drive. However, person who drives while his or her ability to do so is impaired by 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 tolerance that does not exist in law. Trial judges constantly have to keep in mind that it is an offence to operate motor vehicle while the ability to do so is impaired by alcohol. If them 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." In R. v. White, 130 N.S.R. (2d) 145 N.S.C.A., Justice Chipman under #66 stated: "In my view the words 'impaired by alcohol' in the Criminal Code raises an issue for the trier of fact in each case. would resist any attempt to further define these words, but do reject the proposition that by the use of such plain and simply words, parliament intended to adopt some standard involving marked departure from the norm or other graduated standards." The above statements set forth the law to be applied in this case. In the case before us the trial judge carefully reviewed the evidence relating to the appellant's condition on the evening in question. She found as fact the appellants ability to drive was impaired by alcohol. When one considers the fact there was rear end collision on the 103 Highway; that the appellant walked unsteadily while holding on his van; that his speech was slightly slurred; that he was swaying on his feet; that his eyes were dilated; and that he thought this other car pulled out in front of him when in fact she was making right hand turn off the highway, there was ample evidence for the trial judge to find the Crown had proven its case beyond reasonable doubt. I find the trial judge applied the correct test for impairment. find she did not err. As to whether the trial judge utilized the absence of evidence from the appellant to conclude the appellant was impaired, find she did not. To understand her comments you must read them together and consider the fact she was responding to speculations made by defence counsel during his summation. find the trial judge committed no err. I dismiss the appeal with costs in the amount of $300.00 to the Crown which will be payable to the Clerk of the Crown on or before June 30, 1995 who will then disburse it to the Crown.
The appellant appealed his conviction for impaired driving, contending the trial judge failed to direct herself in law as to the appropriate burden of proof. Dismissing the appeal, that the trial judge applied the correct test for impairment. The Criminal Code does not prescribe special tests for determining impairment. The trial judge must receive sufficient evidence to satisfy him or herself beyond reasonable doubt that the accused's ability to operate motor vehicle was impaired by alcohol. On Appeal.