TABLE OF CONTENTS II. STELLATO AND THE NEW TEST 2 DEFINING IMPAIRMENT AFTER STELLATO. I. McKENZIE AND "MARKED DEPARTURE" 1

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1 DEFINING IMPAIRMENT ) These materials were prepared by Michael Tochor of Merchant Law Group, Regina, Sask. for the Saskatchewan Legal Education Society Inc. seminar, Criminal Law - Impaired Driving, September 1998.

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3 TABLE OF CONTENTS DEFINING IMPAIRMENT AFTER STELLATO I. McKENZIE AND "MARKED DEPARTURE" 1 II. STELLATO AND THE NEW TEST 2 III. ANDREWS: THE ALBERTA RETREAT 4 IV. THE SASKATCHEWAN EXPERIENCE: MACDONALD AND LANDES.. 5 V. ARE THERE ANY CONCLUSIONS? 7

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5 1 DEFINING IMPAIRMENT AFTER STELLATO I. McKENZIE AND "MARKED DEPARTURE" For nearly forty years, the definition of impairment was generally governed by the "marked departure" test which originated in R. v. McKenzie (1955) 20 CR 412 (Alta DC). There Sissons, CJDC held, at pp : "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 ofseveral tests and observations such as general conduct, smell to the breath, character ofthe speech, manner ofwalking, turning sharply, sitting down and rising, picking up objects, reaction ofthe pupils ofthe eyes, character ofthe breathing. Ifa 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 ofcontrol offaculties and therefore that his ability to drive is impaired. I do not think such a finding should be made on the slight variation from the normal. (emphasis added)." McKenzie was affirmed as recently as 1992 by the Alberta Court ofappeal in R. v. Smith (1992) 13 CR (4th) 125. There, the Court said, at p. 128: "ButMcKenzie has maintained its force, certainly in Alberta. Ifit is wrong and Parliament prefers to criminally proscribe any impairment, however slight, accompanying the operation ofa motor vehicle, it is free to do so... For these reasons we think the "marked departure from the norm" test in R. v. McKenzie should be affirmed." In practice, therefore, the issue ofimpairment was decided on whether the alleged conduct was a "marked departure".

6 2 II. STELLATO AND THE NEW TEST While there was a disagreement in Courts across the country as to the appropriate test, generally speaking, in Saskatchewan, the "marked departure" test was applied. Then came Stellato. In a terse, two sentence judgment, the Supreme Court rejected the "marked departure" standard in R. v. Stellato (1994) 31 CR (4th) 61 (SCC). Lamer, CJC, in an oral judgment, simply adopted the reasons given by Labrosse, JA at (1993) 18 CR (4th) 127 (Ont. CA). Afterreviewing conflicting case lawfrom appellate courts across the country, Labrosse, JA said, at pp : "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, ifparliament had intended to proscribe impaired driving only where accompanied by a marked departure from the norm, it also could have said so... Specifically, I agree with Mitchell, JA in Campbell that the Criminal Code does not prescribe any special test for determining impairment. In the word of Mitchell, JA, impairment is an issue offact 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. The court then held, at p. 132: "Ifthe evidence ofimpairment establishes any degree ofimpairment rangingfrom slight to great, the offence has been made out." (emphasis added) Thus, in a two sentence oral judgment, the Supreme Court radically changed the defmition of )

7 3 impairment. Stellato was the brunt ofsome critical comment: in an annotation (1994) 31 CR (4th) 61, Don Stuart noted: "Giving a driver a criminal record merely on the basis ofthe slightest evidence ofalcohol consumption extends the criminal sanction too far and seems curiously inconsistent with Parliament's lenient.08 breathalyzer standard." The same commentator also noted in a different annotation (1996) 45 CR (4th) 74, at pp : ''The majority decision in Andrews is a commendable attempt to distinguish a severe and ill considered brieforal judgment ofthe Supreme Court in R. v. Stellato...." Nonetheless, it goes without saying that Stellato, in Saskatchewan at least, was immediately adopted. In R. v. Hall (1994) 125 Sask R 62 (Sask, CA) Jackson, JA noted Stellato and said, at p. 65: "A trier of fact may be able to infer impairment from behaviour which is far outside the norm, but ifsuch behaviour is not present, impairment may be inferred, in the appropriate case, from something less. Similarly, inr. v. McCallum (1994) 125 Sask R 77 (CA) andr. v. Pelletier (1995) 128 Sask R 214 (CA), Stellato was expressly followed. As Jackson, JA parenthetically noted in Hall at p. 65: "The significance of this change cannot be denied. Where once it was thought the breathalyzer was necessary to overcome the vagaries of obtaining a drunk driving or impaired driving conviction, now the impaired driving charge will, in some cases, supplement the.08 charge. Witness this case, where Mr. Hall blew.100 and.110, was acquitted ofbeing "over.08", but yet convicted ofimpaired driving."

8 4 III. ANDREWS: THE ALBERTA RETREAT The Alberta Court ofappeal, however, was not so quick to roll over. While recognizing the authority ofstellato, the court in R. v. Andrews (1996) 46 CR (4th) 74 (Alta., CA) pointed out a crucial distinction between "impairment" and "impairment of one's ability to drive". The court in Andrews, in essence, required evidence that an accused's ability to operate a motorvehicle was impaired. As Conrad, JA said, at p. 81: "The courts must not fail to recognize the fine but crucial distinction between 'slight impairment' generally, and 'slight impairment ofone's ability to operate a motor vehicle'. Every time a person has a drink, his orher 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 questions 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 the consumption ofalcohol, his or her ability to drive is also automatically impaired." (emphasis in the original). Conrad, JA also said, at p. 83: "The ratio ofthe 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. That is whatthe Supreme Court ofcanadaapproved, notthata slightdegree ofimpairment is to be equated to a slight degree ofimpairment ofone's ability to drive." (emphasis added) Forthose charged with impaired driving, Andrews offered something ofa reprieve from the apparent rigidity ofthe Stellato standard. But would this apply in Saskatchewan?

9 IV. THE SASKATCHEWAN EXPERIENCE: MACDONALD AND LANDES 5 Although they succumbed to the "marked departure" fonnula for decades, Saskatchewan Courts did not warmly embrace Andrews. Indeed, it was immediately rejected. In R. v. MacDonald (1996) 146 Sask R 306 (Q.B.), Baynton, J concluded, at p. 311: "With respect, the attempt in Andrews to reactivate an artificial threshold ofproofimposed over forty years ago by McKenzie, is inconsistent with the more modem and enlightened view ofimpairment by alcohol consumption and its impact on the ability to drive a motor vehicle." He had earlier explained, at p. 309: "It is now common knowledge that a person's judgment, perception, and reaction time can be detrimentally affected by a level ofalcohol consumption that may not be manifested in observable conduct such as the matterofwalking or talking. Such a person may well be able to walk in a straight line or speak without a slur, but is a danger behind the wheel of an automobile where judgment and reaction time is critical to the safety ofothers on the road. By the time a person has had enough to drink that his or her observable conduct exhibits a marked departure from the nonn (such as staggered or slurred speech) that person'sjudgment and reaction time (and thus the ability to drive a motor vehicle) is substantially impaired. As a matter ofcommon sense, ifthe McKenzie threshold ofevidence is still the law, then a conviction for impaired driving could never be made unless the degree ofimpainnent was great. This is clearly inconsistent with the decision and reasoning in Stellato." A possible criticism ofthis reasoning is that while "observable conduct" may not detect impairment, there is no other way to prove impainnent. It is only through observations ofa person's conduct, behaviour, and driving actions, that evidence ofimpairment can be gleaned. Unless expert testimony is used to interpret breath alcohol readings, impainnent can only be made manifest through "observable conduct". However, a rather interesting approach was recently developed by Klebuc, J in R. v. Landes (unreported, December 8, 1997 JCS). There, Klebuc, J assessed Andrews as follows, at para 10:

10 6 "The Saskatchewan Court ofappeal dealt with what constitutes impaired driving and the proofthereofinr. v. Hall (1995) 125 Sask R 62; R. v. McCallum (1994) 125 Sask R 77 and R. v. Pelletier (1995) 128 Sask R 214. Mr. Justice Baynton ofthis court in R. v. MacDonald (1996) 146 Sask R 306 concluded that Andrews does not apply in Saskatchewan. I am bound by the decisions in Hall, McCallum and Pelletier, and will give judicial difference to the decision ofmy colleague in MacDonald. Klebuc J reviewed the symptoms ofimpairment adduced at and said, at para 17: "In my view, a trial Judge must carefully review all ofthe reported tests and observations which inferentially support or negate any impairment ofthe accused's mental and physical capabilities, and then be satisfiedbeyond a reasonable doubt that the reasonable inferences to be drawn therefrom establish that the accused's ability was impaired to the degree prescribed by ss. 253 and 255 ofthe Criminal Code. A piecemeal approach supporting or negating impairment is not permissible." Then, after a lengthy analysis ofthe various "relevant indicia", Klebuc, J concluded, at para 24: "The conflicting physiological symptoms observed by the witnesses when coupled with the equivocal nature ofthe accident, in my opinion would cause a properly instructed jury to have a reasonable doubt as to whether the Appellant was impaired. The evidence and any inferences to be drawn are as consistent with innocence as guilt. Therefore, I conclude that a properly instructed jury or trier of fact would not have found the Appellant guilty as charged." (empahsis added) Thus, there appeared to be a new element introduced in the assessment ofimpairment. The court inlandes appears to have approachedthe evidence on the basis ofa test for circumstantial evidence: in effect, the issue is whether the evidence (and inferences) are "as consistent with innocence as guilt". Specific symptoms, some indicating impairment and others negating impairment, were weighed. After a review oflandes, it could be argued that the trial Judge has not imported a new test for impairment but, instead, imported requirements ofwhat should be reviewed, and how it should be reviewed. While cases regarding impairment are usually fact driven, the Landes approach can be

11 7 seen to require something more than a simple subjective assessment of impairment in a general sense. v. ARE THERE ANY CONCLUSIONS? Clearly, the test is watered down from the "marked departure" standard. SinceStellato, convictions are far easier for the Crown to obtain. As Jackson, JA observed in Hall, supra at p. 65: "the significance ofthis change cannot be denied". However, Stellato does not totally remove any and all defences to charges of impaired driving. While "any impairment ranging from slight to great" will constitute an offence, there is this proviso [Stellato (1993) 18 CR 4th 127 (CA)] at p. 132: "In all criminal cases the trial Judge must be satisfied as to the accused's guilt beyond a reasonable doubt before a 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 a motor vehicle was impaired by alcohol or a drug. Ifthe evidence ofimpairment is so frail as to leave a trial Judge with a reasonable doubt as to impairment, the accused must be acquitted." Thus, even "slight" impairment must be proven beyond a reasonable doubt. Finally, while all courts areobviously strictlyboundbystellato, consideredapproaches, suchas that found in Landes, also afford avenues by which charges ofimpaired driving can be explored and, on occasion, successfully defended.

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