R. v. S.S.
Her Majesty the Queen, and
 O.J. No. 4736
Ontario Court of Justice
Oral judgment: June 24, 2003.
Charges: Impaired & Over 80
C. Chorney, for the Crown.
T.K. Pain, for the defendant.
¶ 1 VAILLANCOURT J. (orally): I agree with the defence that when we are coming to certificates and when we come to evidence, especially when the officer is indicating that he specifically reviewed the documents to check the spelling and make sure all the important information is there, that – I’m going to take him at his word. You checked it and what is there is correct. I’m not going to admit the certificate.
¶ 2 With respect to the issue of impaired, anything to add, Crown from —
¶ 3 MR. CHORNEY: No, I think I’ve said everything I wanted to say.
¶ 4 THE COURT: With respect to the impaired, my concern there – let’s drop back. The officer, when he came upon this motor vehicle, there was no indication that this car was where it was located because of an accident, or wild driving, or anything like that. It seemed that it was parked intentionally with the two wheels off to the side, two wheels on the curb area and the other two still on the pavement. And that we have the accused in there looking at a map trying to find her way home. So there is absolutely no evidence with respect to observed driving. All of the evidence relates to the observations of the officer and here is where you have to distinguish between reasonable and probable grounds and proof beyond a reasonable doubt, because I am concerned when I hear viva voce, it seems for the first time many of the key indicators of impairment none of which were in the notebook of the officer. And I grant that the event was not all that long ago, but the officer when he prepared his notes, would have had no idea when this trial would have been reached or heard. And it seems rather fortuitous for the Crown that as he is giving his evidence key indicators of impairment are raised for the first time. Even if we look at the indicators that have been given I am concerned over the ones that were not sort of also in evidence. In other words, when you hear the evidence with respect to the odour, the eyes and the unsteadiness, which isn’t an exhaustiveness, one would – is a bit surprised to hear that there is no slurred speech. With respect to the eyes, there is no evidence whether the pupils were dilated or not. The officer describes the walking from the car to his vehicle as swaggering. I’m quite sure he did not want to use the word “swaggering.” Perhaps staggering, or stumbling, or something, but he’s given evidence of a very polite and cooperative accused. Swagger has it’s own connotation, I think, meaning in the English language, which is the opposite, usually, of people who are polite, et cetera, et cetera. And also one who swaggers would likely – that wouldn’t be a sign so much of their inability to move. It actually is almost an additional motor skill that has to be put into play. So on the balance of the evidence, although there was reasonable and probable grounds to make the arrest, I’m not convinced beyond a reasonable doubt that the Crown has proven it’s case and the charges will be dismissed.
¶ 5 MR. PAIN: Thank you, Your Honour. I thank my friend as well.