Decision Content
R. v. Hayward, 2012 NWTTC 01 T-1-CR2011000292 IN THE TERRITORIAL COURT OF THE NORTHWEST TERRITORIES IN THE MATTER OF: HER MAJESTY THE QUEEN - vs. - TRENT HAYWARD _________________________________________________________ Transcript of the Decision of The Honourable Chief Judge R. D. Gorin, at Yellowknife in the Northwest Territories, on December 13th A.D., 2011. _________________________________________________________ APPEARANCES: Mr. N. Sinclair: Counsel for the Crown Mr. R. Gregory: Counsel for the Accused ---------------------------------------- Charge under s. 253(1)(a) Criminal Code of Canada Official Court Reporters 1 THE COURT: Trent Ronald Hayward is 2 charged that on or about the 13th day of 3 November, 2010, at or near the city of 4 Yellowknife in the Northwest Territories, 5 while his ability to operate a motor vehicle 6 was impaired by alcohol, did operate a motor 7 vehicle contrary to Section 253(1)(a) of the 8 Criminal Code. 9 Due to rather unusual circumstances, the 10 accused did not provide a breath sample into 11 an actual breathalyzer machine, and I have no 12 evidence as to his blood alcohol level at or 13 around the time that he was driving. 14 Consequently, the accused is charged only with 15 driving while his ability to do so was 16 impaired by alcohol. He is not charged with 17 driving while his blood alcohol level exceeded 18 the legal limit of 80 milligrams percent. 19 While, as I have said, the circumstances 20 are unusual, the evidence I have before me is 21 what it is. I draw no inference one way or 22 another as a result of the unavailability of 23 evidence concerning the accused's blood 24 alcohol level. My role here today is to 25 examine the evidence presented in this case 26 and determine whether or not all of the 27 elements of the sole offence alleged by the Official Court Reporters 1 1 Crown have been proved beyond a reasonable 2 doubt. 3 For the benefit of the public, I will note 4 at the outset that Constable Hayward is not 5 charged with "driving under the influence of 6 alcohol". Driving under the influence of 7 alcohol may be an offence in American law. 8 However, that is not how the Canadian version 9 of the offence is worded. In order to commit 10 the offence which is proscribed by 11 Section 253(1)(a) of the Criminal Code, a 12 person must operate a motor vehicle while his 13 or her ability to do so is impaired. For 14 reasons on which I will elaborate, this is a 15 distinction with significance. 16 This case is relatively simple. There are 17 no complex legal issues. The Crown argues 18 that all of the elements of the offence 19 alleged have been proved beyond a reasonable 20 doubt. The defence, on the other hand, states 21 that it has not been proved beyond a 22 reasonable doubt that there was actual 23 impairment of the accused's ability to operate 24 a motor vehicle at the time that he was 25 driving. He refers me to the well known cases 26 of Stellato 1994 SCR 478 Supreme Court 27 decision and Andrews (1996) 104 CCC (3d) 392 Official Court Reporters 2 1 (Alta. C.A.) leave to appeal to the Supreme 2 Court of Canada refused 106 CCC (3d) vi. 3 In Stellato, the Supreme Court of Canada 4 held that since the Criminal Code does not 5 proscribe any special test for determining 6 impairment such as "marked departure" from 7 normal behaviour, if the evidence of 8 impairment establishes any degree of 9 impairment beyond the de minimus level, 10 ranging from slight to great, the offence is 11 made out. 12 However, in Andrews, the Alberta Court of 13 Appeal qualified the Supreme Court of Canada's 14 pronouncement in Stellato. The Court held 15 that Section 253(1)(a) requires impairment of 16 the ability to drive as an element of the 17 offence as opposed to any impairment of the 18 accused's functional ability. 19 The Court further stated that it cannot be 20 assumed that where a person's functional 21 ability is affected in some respects by the 22 consumption of alcohol, it necessarily follows 23 that his ability to drive is also impaired. 24 Where proof of impairment consists of 25 observations of conduct, in most cases, if the 26 conduct is a slight departure from normal 27 conduct it would be unsafe to conclude beyond Official Court Reporters 3 1 a reasonable doubt that the ability to drive 2 was impaired by alcohol. 3 Put another way, simply being "under the 4 influence of" or "affected by alcohol" is not 5 in and of itself enough. An essential element 6 of the offence charged, which must be proved 7 beyond a reasonable doubt, is impairment of 8 the ability to drive. 9 I agree with Mr. Gregory that, to a large 10 extent, this case boils down to what is often 11 referred to as a credibility contest. On the 12 one hand there is the evidence of the accused 13 that his ability to operate the motor vehicle 14 was not impaired through the consumption of 15 alcohol. On the other hand, there is the 16 evidence of the arresting officer, Corporal 17 Matt Hare, that the accused was quite 18 intoxicated throughout his dealings with him. 19 Then there is the evidence of the others who 20 testified: Kiera Powder, Constable David 21 Sullivan, Sergeant Dennis McLeod, and Shane 22 Thompson - all of whom provided corroboration 23 to one version or the other to varying 24 degrees. 25 I must also consider the other evidence 26 which was entered, including the video 27 evidence of Constable Hayward's conduct when Official Court Reporters 4 1 he was at the detachment, the patrol unit 2 history, and the photographs of certain text 3 messages sent to Corporal Hare. 4 The case law, dealing with how to approach 5 the contradictions between Hayward's evidence 6 and the other evidence I have heard and seen, 7 is very well established. It is not simply a 8 case of deciding who is more likely telling 9 the truth. I have to approach the evidence as 10 follows: 11 First of all, if I believe the accused's 12 testimony that his ability to operate a motor 13 vehicle was not impaired by alcohol, I must 14 find him not guilty. Secondly, even if I 15 don't believe him but his evidence leaves me 16 in reasonable doubt as to his guilt, I must 17 find him not guilty. And thirdly, even if I 18 reject his evidence to the extent that it does 19 not leave me in reasonable doubt, I must 20 examine all of the evidence which I do accept 21 and determine whether, based on that evidence, 22 it has been proved beyond a reasonable doubt 23 that he is guilty of the offence that he is 24 charged with. 25 I think it appropriate to review the 26 evidence to some extent. While I do not 27 intend to repeat all of the evidence, I will Official Court Reporters 5 1 say that I have reviewed it extensively during 2 the course of my deliberations and if I do not 3 mention a particular piece or portion of 4 evidence, it does not mean that I have not 5 considered it. 6 Corporal Hare was the first witness called 7 by the Crown. He testified that during the 8 course of his career he has been involved in 9 excess of 200 investigations having to do with 10 impaired operation of a motor vehicle or 11 driving over 80. 12 His testimony was that he was working the 13 shift that began at 7 p.m. on November 12th, 14 2010, and ended at 7 a.m. the following day. 15 He walked through the Gold Range bar in 16 Yellowknife at approximately midnight. He saw 17 Constable Hayward, who was off duty, seated 18 with four to six other people. He saw that 19 Hayward was with his girlfriend April Bell, 20 who is also an RCMP constable. Four years 21 earlier, Hare and Constable Bell were in a 22 relationship. He said that another person at 23 the table where Hayward was seated joked that 24 Corporal Hare should take Constable Hayward 25 away. However, Corporal Hare testified that 26 he noted nothing unusual about Hayward's 27 behaviour at the time. Official Court Reporters 6 1 He testified that at one point that 2 evening he observed Hayward's truck by Boston 3 Pizza, across from the Joe Tobie building. 4 Corporal Hare testified that sometime 5 after observing Hayward at the Gold Range, he 6 parked in the empty lot by the Raven Pub on 7 the same block and side of the street that the 8 Gold Range bar is located. At about 1:50 9 a.m., he saw Constable Bell walking from the 10 Gold Range in the direction of the Raven Pub. 11 A short time later, he saw Constable Hayward 12 following her. 13 He said that he could tell that Hayward 14 was intoxicated just from looking at him. He 15 stated Hayward was walking oddly and stumbling 16 slightly with very rigid legs. He described 17 Hayward was walking in a "funny rigid" manner. 18 He had never seen Constable Hayward walk like 19 this previously. He was unaware of Hayward 20 having a limp. However, earlier in his 21 testimony he stated that he has never worked 22 at the same detachment at the same time as 23 Constable Hayward. When he saw Constable 24 Hayward, he said 'hi' to him and Hayward then 25 waved back. 26 Corporal Hare testified that he then 27 received a number of telephone calls from Official Court Reporters 7 1 Constable Bell. She requested a ride to 2 locate Hayward so that she could get the keys 3 to the house where she lived. Corporal Hare 4 picked her up. She was quite intoxicated and 5 quite upset. He drove her about a block and 6 let her out. He went back to the spot by the 7 Raven where he had had previously been parked. 8 He said that while he was there, he was 9 approached by Hayward and the two of them had 10 a 15 to 20 minute conversation. This would 11 have been between 2:10 a.m. or 2:20 in the 12 morning. He said that at this point Constable 13 Hayward was significantly intoxicated. His 14 speech was very slurred. He kept repeating 15 himself. He would stop in mid sentence. His 16 balance was very unsteady. He had a swayed 17 stance. At one point he fell and used the 18 front of Hare's police truck to hold himself 19 up. Hayward's eyes weren't red but they were 20 very glassy. He says that there was no doubt 21 in his mind that at that point Constable 22 Hayward was just plain intoxicated and drunk. 23 He testified that he has seen Hayward on a 24 number of occasions when he is sober at work 25 and his behaviour was far different on this 26 occasion. He described Hayward as being eight 27 or nine on a scale of sobriety with ten being Official Court Reporters 8 1 passed out or falling down drunk. 2 The conversation ended when a fight 3 erupted close by, to which Corporal Hare 4 responded. 5 Hare testified that at 2:24 a.m., he 6 received a text from April Bell stating that 7 the accused was driving his truck and that he 8 was going to Behchokò. This is corroborated 9 through a photograph of the text message on 10 Hare's cell along with the timestamp which was 11 entered as evidence on consent. The text 12 stated that Mr. Hayward had just left BPS. 13 Hare responded, and he noted that Hayward's 14 truck was gone from in front of Boston Pizza. 15 Corporal Hare then contacted Sergeant 16 McLeod who was, at the time, Constable 17 Hayward's superior in the community of 18 Behchokò. A plan was formed in which Hare 19 would proceed towards Behchokò and McLeod 20 would proceed from Behchokò towards 21 Yellowknife so that one of them would be sure 22 to encounter Hayward. The two proceeded 23 accordingly and ultimately met up about 30 24 kilometres from Behchokò without encountering 25 Constable Hayward. Hare, at the point, 26 proceeded back towards Yellowknife and at 27 around 3:30 or 3:40 a.m., he encountered Official Court Reporters 9 1 Hayward who was on his way to Behchokò. 2 Hayward drove over on the other side of the 3 road so that his wheels straddled the fog line 4 on his side of the road while Hare passed by. 5 Hare estimated that the vehicle being driven 6 by Constable Hayward was proceeding at around 7 80 kilometres per hour. From Hare's 8 testimony, it would appear that it was the 9 manner in which the vehicle was being driven 10 which attracted his attention. 11 After passing Hayward, Hare turned around 12 and, as he approached Hayward's vehicle, from 13 behind noted that it was driving down the 14 centre of the right-hand lane but then moved 15 to the right so that once again Hayward's 16 vehicle was overtop of the fog line. 17 Assuming for the sake of analysis that 18 Hare's description of Hayward's driving is 19 accurate, I don't think that it can be 20 characterized as erratic. In fact, I'm not 21 sure it can even be characterized as bad 22 driving. According to Hare, Hayward was 23 driving under the speed limit but not unduly 24 so. It may be that Hayward pulled away from 25 Hare when Hare passed him from the other 26 direction. However, as Corporal Hare stated 27 in his testimony, this highway is one on which Official Court Reporters 10 1 intoxicated people often drive. I also do not 2 think it at all unusual that Hayward would 3 straddle the fog line on his side of the road 4 after seeing an RCMP vehicle turn around and 5 follow him. 6 Hare testified that he followed Hayward 7 for about ten seconds and pulled Hayward over. 8 He testified that when he first observed 9 Hayward he immediately noted that his eyes 10 were still glassed over. They now appeared 11 slightly bloodshot. He said that Hayward 12 fumbled with his vehicle documents and dropped 13 them in his lap. He noticed what he described 14 as a slight odour of alcohol. The only other 15 observations of intoxication which he noted 16 were that Hayward's stance was "staggered". 17 He clarified that by using this term, he meant 18 that Hayward's legs were quite far apart side 19 to side - to maintain his balance. 20 Corporal Hare testified that he then 21 lodged Hayward in the back seat of his police 22 vehicle. He said that Hayward was initially 23 calm but then became upset after he provided 24 Hayward with his Charter warning. Hayward 25 said that the last time he had seen Hare was 26 three hours ago. According to Corporal Hare, 27 Constable Hayward then said a number of other Official Court Reporters 11 1 things. He asked Hare why he thought that he 2 was impaired. He told him that he would be 3 close to the limit but he also said that he 4 would not be over the limit. Hare testified 5 that during this conversation, he noticed an 6 odour of stale alcohol coming from Hayward 7 becoming stronger. 8 Hare testified that Constable Foley 9 arrived soon after in order to assist. 10 Constable Foley was not called upon to 11 testify. I don't know how good of a position 12 Constable Foley would have been to observe 13 Hayward at the time and I am not going to 14 speculate. However I will note that aside 15 from Corporal Hare, all of the witnesses 16 called by the Crown, observed Hayward some 17 time later. 18 In any event, Corporal Hare and Hayward 19 ultimately proceeded back to the Yellowknife 20 RCMP detachment, a distance of approximately 21 35 to 40 kilometres from where Hare had pulled 22 over Hayward. This drive would have taken 23 about 25 minutes give or take five minutes or 24 so. Corporal Hare arrived at the detachment 25 at 4:59, some 80 to 90 minutes after pulling 26 Constable Hayward over. 27 Corporal Hare described Constable Hayward Official Court Reporters 12 1 as being very upset. He described Hayward's 2 mood as "not angry" but rather as "a placid, 3 pleading, upset". He said that Hayward told 4 him that he had only had six drinks and that 5 he knew that it took him more than 12 doubles 6 to get him over the legal limit. Hayward told 7 him that he had gone to the Long Lake area on 8 the outskirts of Yellowknife to sober up prior 9 to embarking on the trip from Yellowknife to 10 Behchokò. 11 Hare stated that Constable Sullivan was 12 called in as a breathalyzer technician. 13 Sullivan introduced himself to Hayward and 14 left to prepare the breathalyzer. Sullivan 15 then discovered that the solution necessary to 16 run the breathalyzer machine had expired. 17 Sometime later he discovered that there was no 18 unexpired solution whatsoever in the 19 detachment. 20 For the benefit of the public and to avoid 21 any confusion, I am going to explain that 22 there are two different types of instruments 23 referred to in the Criminal Code that measure 24 blood alcohol which are referred to in the 25 evidence of Corporal Hare and Constable 26 Sullivan. One is an instrument which is often 27 located in police detachments and which Official Court Reporters 13 1 obtains accurate readings of blood alcohol 2 levels which can actually be used as evidence 3 on charges of impaired driving or driving over 4 80. Throughout this judgment, I am going to 5 refer to this type of instrument as a 6 "breathalyzer". 7 The other type of instrument is a portable 8 device which police officers will often have 9 with them while they are on patrol. This 10 portable instrument can be employed by the 11 police at roadside in order to determine 12 whether or not to demand that a suspect 13 accompany them to the police station to 14 provide a breath sample into a breathalyzer. 15 I am going to refer to this instrument as an 16 "ASD", which is an acronym for "approved 17 screening device". 18 Sergeant McLeod eventually arrived at the 19 detachment. Hare and McLeod then discussed 20 taking Hayward to Behchokò to conduct a 21 breathalyzer test due to the unavailability of 22 a properly working breathalyzer in 23 Yellowknife. However, Hare and McLeod elected 24 not to do so since by the time they got to 25 Behchokò what Hare described as the "three 26 hour limit" would have expired. 27 I pause to note that Section 254(3) of the Official Court Reporters 14 1 Criminal Code provides that if a peace officer 2 has reasonable grounds to believe that an 3 accused has committed the offence of impaired 4 driving, within the preceding three hours, the 5 peace officer may then make a demand - as soon 6 as practicable - requiring the accused to 7 provide - as soon as practicable - breath 8 samples and to accompany the peace officer for 9 that purpose. 10 So if, as Corporal Hare clearly maintains, 11 he had the necessary grounds to make the 12 breathalyzer demand while within three hours 13 of the time that he observed Hayward driving, 14 he could have made a valid breath demand. As 15 long as the test was then carried out as soon 16 as was practicable under the circumstances, 17 the breath demand would still have been 18 valid - even if the samples were ultimately 19 provided outside of three hours from the time 20 of driving. 21 Once Corporal Hare found out that the 22 breathalyzer in Yellowknife was not operable, 23 he could have had the test administered in 24 Behchokò. He could have required Hayward to 25 accompany him for that purpose. It is true 26 that because the test, or tests, would have 27 been performed outside the two hour limit (I Official Court Reporters 15 1 am referring to the two hour limit set out in 2 Section 258) there would not have been the 3 legal presumption that the blood alcohol level 4 was the same at the time of driving as at the 5 time that the tests were carried out. But, it 6 would still have been open to the Crown to 7 call a toxicologist, or other expert, as a 8 witness to provide evidence concerning the 9 accused's blood alcohol level at the time of 10 driving. 11 Such evidence may have simplified these 12 proceedings greatly. However, I will once 13 again state that I draw no inference one way 14 or another as a result of the failure to carry 15 out the breath test. I will simply apply the 16 evidence that I have before me to the charge 17 that I have before me and determine whether or 18 not the accused's guilt on that charge has 19 been proved beyond a reasonable doubt. 20 Corporal Hare testified further that when 21 he told Constable Hayward that there would be 22 a charge of impaired operation of a motor 23 vehicle, Hayward became very upset. Hayward 24 was ultimately released at around six in the 25 morning when his father came to pick him up. 26 Corporal Hare stated that during the time 27 Hayward was standing at the release counter of Official Court Reporters 16 1 the cellblock, he could not work his cell 2 phone properly. He said that there was one 3 point where he hit two keys on his cell phone 4 at once. He said that Hayward's fine motor 5 skills were impaired. 6 During cross-examination Hare provided 7 further important evidence. He confirmed that 8 when Hayward was placed in custody, he was 9 initially calm. He stated that Hayward's 10 speech was "slightly slurred". He stopped 11 Hayward on the highway at around 4:03 a.m., 12 and Hayward was in Hare's vehicle by 4:14, and 13 that he would have arrested Hayward somewhere 14 between those two times. He testified that it 15 was at 5:30 a.m. that he was advised by 16 Sullivan that there was no suitable solution 17 for the breathalyzer. 18 He confirmed that Behchokò is 120 19 kilometres away from Yellowknife and that he 20 had a breath technician with him. 21 I note that, actually counting Sergeant 22 McLeod who resides in Behchokò, he would have 23 had two breathalyzer technicians with him. 24 Corporal Hare reiterated that in his opinion 25 he would have been outside the three hour time 26 limit he thought applied to the actual taking 27 of the breath samples by the time that he Official Court Reporters 17 1 would have arrived in Behchokò. 2 During cross-examination, Hare stated that 3 at the detachment he gave Hayward the 4 opportunity to blow into an ASD. Hare said 5 that he gave Hayward the opportunity to do 6 this since Hayward kept stating that he wasn't 7 drunk. Hayward then voluntarily blew into an 8 ASD provided by Constable Sullivan. 9 I have not been provided with the results 10 of the ASD test. I should note for the 11 benefit of the public that there are very 12 sound legal reasons for my not having such 13 evidence placed in front of me. Simply put, 14 ASDs are roadside screening devices and are to 15 be used only as an aid to allow a peace 16 officer to form the reasonable grounds 17 required to make a demand that the accused 18 accompany him and provide breath samples into 19 a "breathalyzer" machine. They do not have 20 the necessary accuracy and reliability to be 21 used in court as evidence of the accused's 22 blood alcohol level. 23 Corporal Hare confirmed that at the time 24 of Hayward's detention, he made notations 25 respecting Hayward's level of intoxication on 26 a document called a C-13 prisoner's report. 27 He noted that Hayward's balance was fair. He Official Court Reporters 18 1 also noted that his state of mind was placid, 2 and that his speech was clear. However, in 3 his actual testimony Corporal Hare did not 4 adopt the entirety of what he had written in 5 the C-13 report without qualification. 6 During Corporal Hare's cross-examination a 7 number of video recordings of the cellblock 8 area, which depicted Hayward and others with 9 him, were played in court and admitted into 10 evidence. While there was no sound, and 11 Corporal Hare and the others who were actually 12 present would have had a better opportunity to 13 observe Hayward's behaviour, I must say that 14 from what I saw of the video alone, I am 15 unable to conclude that there was any 16 impairment on the part of Hayward. Rather, 17 what I saw appears to be more consistent with 18 him being sober. There was one point where I 19 saw some unevenness in his gait when he was 20 putting on his coat over his head while he was 21 walking. However, in my experience, less than 22 perfect balance would not be unusual in a 23 sober person carrying out the same sort of 24 activity. This is especially so, if Hayward's 25 testimony as to his knee injury is accurate. 26 From Hayward's body language in the video, 27 he did not appear to be behaving aggressively Official Court Reporters 19 1 towards Hare as they were discussing the 2 charge. However, Corporal Hare maintains that 3 Constable Hayward was "verbally aggressive" at 4 this point. 5 Kiera Powder testified next. She is a 6 civilian who works with the RCMP as a 7 cellblock matron. She was working at the RCMP 8 detachment in Yellowknife when Constable 9 Hayward was brought in. Although she was only 10 professionally acquainted with Hayward at the 11 time, she is now friends with both him and his 12 partner, Constable Bell. She confirmed that 13 she was the person sitting at the booking 14 table in the video which shows Hayward when he 15 was at the detachment in the early morning of 16 November the 13th. She testified that at the 17 time she was able to detect a moderate odour 18 of alcohol coming from Hayward. She recalled 19 Hayward and Hare arguing about a 24-hour 20 driving suspension. She said that Hayward was 21 not yelling but that he was argumentative and 22 louder than usual. On cross-examination she 23 confirmed that she had no difficulty 24 understanding Hayward and that although he was 25 agitated, his voice was clear. She does not 26 recall his voice being slurred. She observed 27 no difficulty with his walking. She testified Official Court Reporters 20 1 that his speech and what he was saying seemed 2 perfectly clear. Other than the smell of 3 alcohol, she did not notice any signs of 4 impairment whatsoever. 5 Next to testify on behalf of the Crown was 6 Constable David Sullivan. He testified that 7 at 4:39 in the morning he was requested to 8 come into the detachment to conduct breath 9 tests as a breathalyzer technician. Upon his 10 arrival at the detachment, he noted Constable 11 Hayward sitting on a bench opposite Hare. He 12 noticed a strong odour of alcohol emanating 13 from Hayward. He introduced himself to 14 Hayward and noted that Hayward had red glossy 15 eyes. In attempting to prepare the 16 breathalyzer machine, he discovered that the 17 solution which is necessary to administer the 18 test had expired. He then found that there 19 was no unexpired solution available in the 20 detachment. He had some further face-to-face 21 contact with Hayward when he administered the 22 ASD. Sometime later, he had a conversation 23 with Hayward wherein Hayward said that he had 24 had only six beers. He says that Hayward also 25 said that after consuming the beers, he went 26 to his business and waited there for about 27 three hours and then drove. Official Court Reporters 21 1 Sergeant Dennis McLeod was the next 2 witness called by the Crown. He was and is 3 the commanding officer at the Behchokò 4 detachment and, as such, was Constable 5 Hayward's superior at the relevant time. He 6 said that he worked with Hayward from 7 September 2009 up until the date charged. 8 Sergeant McLeod has investigated over 200 9 impaired driving charges and is, as I have 10 already noted, a qualified breathalyzer 11 technician and was so qualified on the date 12 charged. 13 His testimony from the time that he 14 received the telephone call from Corporal Hare 15 about Constable Hayward largely agrees with 16 that of Hare. 17 After driving to the point on Highway 3 18 where he met Hare and returning to Behchokò, 19 he heard Corporal Hare on the radio running a 20 license plate check on Hayward's vehicle. He 21 drove to the Boundary Creek area, checked the 22 scene, and then drove to the Yellowknife 23 detachment where he observed Hayward. When he 24 was about a metre from Constable Hayward, he 25 noticed, as did Sullivan, a strong odour of 26 liquor coming from him. He testified that he 27 noticed that Hayward's eyes were glassy and Official Court Reporters 22 1 bloodshot. He also noted that his speech was 2 slurred and louder than normal. He observed 3 that when Hayward was using his cell phone, he 4 hit two keys at once. While he observed 5 Hayward standing, Hayward's hand was on the 6 counter. 7 Sergeant McLeod testified that although he 8 had seen Hayward during stressful situations 9 in the past, he had never seen Hayward 10 speaking so loudly or for that matter slurring 11 his speech. He said that Hayward's demeanour 12 was different than what he is used to seeing 13 from Constable Hayward. He came to the 14 opinion that Hayward was impaired. He 15 described Hayward as being a four, maybe a 16 five, on a scale of one to ten. He stated 17 that Hayward was not drunk or intoxicated but 18 that he was impaired. He observed Hayward for 19 a period of no longer 15 minutes. 20 Constable Hayward testified in his own 21 defence. He said that he had been working in 22 Behchokò on the morning of November the 12th. 23 He decided to come into Yellowknife to go out 24 to dinner with his girlfriend April Bell. He 25 probably left Behchokò just after 5 p.m. and 26 he estimated that he would have gotten into 27 Yellowknife around 6 or 6:30. He went to Official Court Reporters 23 1 Constable Bell's house and then went to Boston 2 Pizza at around 7 or 7:30. He parked his 3 vehicle outside the Joe Tobie building. At 4 Boston Pizza, he had dinner and two pints of 5 beer. Three other people joined them while 6 they were at Boston Pizza. He said that while 7 he was at Boston Pizza, everybody else was 8 drinking more than he was. 9 At around 10:30 in the evening, all of 10 them left to the Gold Range bar a couple of 11 blocks away. He said that while at the Gold 12 Range, he had two Corona beers from typically 13 sized bottles. Later on, Corporal Hare came 14 through the bar. He recalled that Hare may 15 have said 'hi' to him. In his testimony he 16 recalled that one of the people whom he was 17 with, Shane Thompson, joked with Hare about 18 removing him - that is Constable Hayward - 19 from the bar. He just thought of it as joking 20 around and didn't say anything to Corporal 21 Hare. 22 While still in the bar at around 12:30 23 a.m., he and April Bell had an argument. She 24 wanted to go to another bar, and he wanted to 25 go home. At around 12:45 to 1 a.m., two of 26 the people that he was with headed towards a 27 different bar, as did Constable Bell. Official Court Reporters 24 1 Constable Hayward testified that a number 2 of people were on the street and that at one 3 point he began talking to an informant from 4 Behchokò. He walked around and talked with 5 him. The two of them walked up and down the 6 strip which runs by the Gold Range several 7 times. Hayward says that he was trying to 8 obtain information from this individual. 9 While they were walking, he was phoned several 10 times by Constable Bell. He turned off his 11 cell phone. The third time he and the 12 informant walked down the strip, he saw 13 Corporal Hare who asked him if he had gotten 14 "good information". He replied that he had 15 got "great information". He testified that it 16 was obvious that Hare knew with whom he was 17 speaking, and estimated that this interaction 18 occurred at around 1:30 in the morning. 19 According to Constable Hayward, Corporal 20 Hare's description of the conversation that 21 the two of them had around this time is 22 completely inaccurate as is Hare's description 23 of his apparent state of sobriety. 24 Constable Hayward testified that after his 25 interaction with Corporal Hare, he went to a 26 store that he co-owns with his father a short 27 distance away. He first dropped in to see his Official Court Reporters 25 1 father who tends bar at the establishment 2 located in the same building as the store. 3 When he found that his father wasn't there, he 4 went into the store. 5 He said that he went in to check things 6 out - to see how sales had been and to look at 7 new products. He stated that he tried on 8 clothes since he often gets his clothes from 9 inventory. He puttered around the store for 10 some time during which time Constable Bell 11 sent him some text messages. He replied that 12 he was at the store and that he didn't want to 13 fight. At one point he and Bell had a 14 telephone conversation. He stated that he 15 thought that she was intoxicated from what he 16 heard and he told her that he was going to go 17 back to Behchokò. 18 He testified that he stayed at the store 19 until 3:45 in the morning. He then left and 20 got some gas and departed on the highway to 21 Behchokò. On his way there, he saw the 22 vehicle that Corporal Hare was driving towards 23 Yellowknife. He saw the vehicle turn around 24 behind him. He immediately pulled over to the 25 side of the road and the truck came up behind 26 him. He testified that he was driving at 27 about 100 to 110 kilometres per hour. He Official Court Reporters 26 1 stated that he pulled over because he thought 2 that the vehicle was being driven by an RCMP 3 member from Behchokò who wanted to talk. 4 He further testified that when Corporal 5 Hare asked him to step out of the vehicle, he 6 and Corporal Hare got into an argument. He 7 denied ever being requested by Hare to provide 8 his documents. He testified that he never 9 told Hare that he was going to be close to the 10 legal limit for blood alcohol. 11 He stated that Constable Foley arrived at 12 the scene and that he heard Corporal Hare 13 contacting Sergeant McLeod and asking for a 14 tow truck as well. He denies that he ever 15 told Corporal Hare that he had stopped at Long 16 Lake. 17 He testified that he was not impaired by 18 alcohol but that he was upset at being accused 19 of something that he did not do. 20 He also stated that he had previously torn 21 an anterior cruciate ligament in his knee and 22 that this injury causes him significant 23 difficulty especially when he has been on his 24 feet for extended periods of time. A 25 photograph of his knee in a swollen state was 26 provided to the court in evidence. 27 During cross-examination he was unshaken Official Court Reporters 27 1 as to his version of events. He was asked 2 whether he took a nap on the mattresses that 3 are located in the store. He testified that 4 he could have done so but that he did not. He 5 said that because he was up all day and had 6 been dancing his knee was swollen. He said 7 that on occasions he limps as a result of his 8 knee injury. 9 He denied telling Constable Sullivan that 10 he had six beers to drink. He denied telling 11 Corporal Hare that he was close to the line. 12 He also testified that his vehicle had been 13 parked in the same location that Hare said 14 that he had observed it by the Joe Tobie 15 building. He said that he walked back to his 16 truck after leaving his store and then drove 17 to get gas before he left to go to Behchokò. 18 Shane Thompson also testified for the 19 defence and was the last witness who I heard 20 from in this case. He corroborated Constable 21 Hayward's version of events. However, he 22 denied that he himself had anything to drink 23 at Boston Pizza although he admitted to 24 drinking four Caesars at another bar prior to 25 coming to Boston Pizza. During 26 cross-examination, he said that these drinks 27 were bottled Coronas that he poured into a Official Court Reporters 28 1 glass. He then had a few drinks later when 2 they went to the Gold Range. He saw Constable 3 Hayward have two beers while at Boston Pizza 4 and estimates that Constable Hayward had about 5 five drinks the whole evening when he was with 6 him. 7 Mr. Thompson described Hayward as being 8 "pretty straight". He also described the 9 argument between Constable Hayward and April 10 Bell in the same manner it was described by 11 Hayward. Mr. Thompson remembered joking with 12 Corporal Hare about taking Constable Hayward 13 and Constable Bell away. He recalls Corporal 14 Hare laughing. During cross-examination, he 15 confirmed he saw Constable Hayward drink a 16 maximum of five or six drinks. 17 Mr. Thompson, as I have indicated, was the 18 last witness to testify. 19 One of the further pieces of evidence, 20 which was entered by consent as a business 21 record, was a patrol unit history. This 22 document indicates that Corporal Hare was at 23 another part of town from 1:51 to 2:06 a.m. on 24 November the 13th of last year. The defence 25 has used this evidence to challenge the 26 accuracy of Corporal Hare's testimony that he 27 first observed Hayward briefly on the street Official Court Reporters 29 1 at about 1:50 a.m. Corporal Hare states that 2 the patrol unit history is incorrect in this 3 regard and that they are often not completely 4 accurate. 5 I accept Corporal Hare's testimony as to 6 the inaccuracy of the log. Hayward himself 7 admitted to having had a brief, albeit 8 somewhat different, interaction with Hare at 9 around 1:30 a.m. on the street that runs by 10 the Gold Range. 11 Obviously it is the later and lengthier 12 interaction described by Hare, which Corporal 13 Hare maintained occurred at 2:10 to 2:20 a.m., 14 in which Constable Hayward says did not occur, 15 that is in question. The portion of the log 16 referred to by Mr. Gregory doesn't really 17 assist me one way or the other resolving that 18 factual dispute. 19 As stated, I agree with Mr. Gregory that 20 to a large extent the evidence presented in 21 this case boils down to a credibility contest 22 between Constable Hayward and Corporal Hare. 23 There are certain portions of other evidence 24 which are confirmatory of Hare's testimony and 25 other portions of the evidence which I think 26 are confirmatory of Hayward's testimony. 27 The text messages on Hare's cell phone and Official Court Reporters 30 1 the timestamps on them corroborates his 2 version of events when it comes to the 3 messages received by Constable April Bell as 4 well as their timing. Because these texts are 5 hearsay, I am not allowed to consider them as 6 evidence for the truth of what was actually 7 said in them. Constable Bell, the author of 8 these texts, was not called upon to testify. 9 Constable Sullivan's testimony as to what 10 he was told by Hayward corroborates Hare's 11 version that Constable Hayward told him he had 12 six drinks as opposed to four. It is also, I 13 think, further evidence that this is actually 14 how much Hayward had to drink. On the other 15 hand, what Constable Hayward told Constable 16 Sullivan about where he went and what he did 17 after leaving the Gold Range was not in 18 contradiction of Constable Hayward's testimony 19 in court. 20 I have Corporal Hare's testimony on the 21 accused's state of sobriety. On the other 22 hand, there were the notations made by Hare 23 that recorded that Hayward's balance was fair. 24 He noted that Hayward's state of mind was 25 placid and that his speech was clear. 26 Shane Thompson's testimony on Hayward's 27 apparent state of sobriety corroborates Official Court Reporters 31 1 Hayward's evidence on this point concerning 2 the time that he left the Gold Range and to 3 some extent Hayward's evidence in general. 4 Kiera Powder's testimony on Hayward's 5 apparent state of sobriety at the detachment 6 also appears to be somewhat confirmatory of 7 Hayward's. Other than a moderate odour of 8 alcohol she didn't really note any other 9 physical signs of impairment. In fact I think 10 that her testimony can be considered as 11 evidence that Hayward was sober. 12 Constable Sullivan interacted with Hayward 13 at the Yellowknife detachment and other than a 14 strong odour of alcohol emanating from 15 Hayward, the only indicia of intoxication that 16 he noted were red and glossy eyes. 17 Sergeant McLeod's evidence concerning 18 intoxication was more supportive of the 19 Crown's theory than the evidence of Kiera 20 Powder or Constable Sullivan. As noted, he 21 stated that he detected a strong odour of 22 alcohol. He also said that he noted that 23 Hayward's speech was slurred and louder than 24 usual. I have borne in mind that he certainly 25 would have known how Hayward usually behaves. 26 He says that Constable Hayward's demeanour was 27 different from how he had observed him in the Official Court Reporters 32 1 past. However, I must also consider that 2 Constable Hayward under the circumstances, 3 even if not intoxicated, may have been quite 4 emotional. As well, it is important that 5 Sergeant McLeod clearly stated that Hayward 6 was not drunk or intoxicated. He said that 7 Hayward was a four or maybe a five on a scale 8 of intoxication on a scale of one to ten. 9 He described Hayward as being "impaired". 10 Given what he said about Hayward not being 11 intoxicated, I take him to mean that in his 12 view Hayward was under the influence of 13 alcohol or, put another way, that there was 14 some impairment of Hayward's functional 15 ability. 16 His testimony agreed with Hare's in that 17 he also observed Hayward hitting two keys at 18 once on his cell phone. However I don't place 19 a great deal of weight on this particular 20 fact. Based on what I observe on a day-to-day 21 basis, this is a problem that sober people 22 often experience. 23 Of all the witnesses I heard, Sergeant 24 McLeod's evidence concerning Hayward's state 25 of sobriety was the most supportive of 26 Corporal Hare's assessment. That said, 27 Sergeant McLeod's evidence was quite Official Court Reporters 33 1 qualified. 2 As stated, the offence that Hayward is 3 charged with requires impairment of the 4 ability to drive and not impairment of any 5 functional ability on his part. As Parliament 6 has worded the offence, simply being under the 7 influence of alcohol is not enough to make it 8 out. I must respect what is clearly the will 9 of Parliament in determining whether or not 10 Constable Hayward is guilty. 11 At the end of the day, in order to convict 12 Constable Hayward I must find that I am sure 13 that there was actual impairment of the 14 ability to drive. 15 There were certain aspects of Constable 16 Hayward's evidence that I found and still find 17 troubling. I agree with Mr. Sinclair, who 18 appeared for the Crown, on a number of points. 19 I find Constable Hayward's testimony that 20 following his departure from the Gold Range he 21 was engaged in the conversation with the 22 confidential informant for a significant 23 length of time to be somewhat convenient. And 24 as I have also noted, I find there are 25 portions of the evidence that I find to be 26 corroborative of Corporal Hare's testimony. 27 But, as to the lengthy interaction between Official Court Reporters 34 1 the two of them which Corporal Hare says 2 occurred outside of the Gold Range, I have 3 only their conflicting testimony. While I 4 have the text message and the time it was sent 5 to Corporal Hare by Constable Bell, I can't 6 use it for the truth of its contents. 7 Constable Bell was not called upon to testify. 8 I can use it to corroborate Hare's version on 9 the timing of his departure from Yellowknife 10 and what he saw, but I am still left with the 11 conflict between Hare and Hayward's testimony 12 on when Hayward moved his vehicle from where 13 he had initially parked it that evening. 14 I have observed Constable Hayward closely 15 a number of times on the video recording 16 entered as evidence; and, other than a rather 17 moderate deviation in his walking while he was 18 putting a coat over his head, I didn't observe 19 anything about his behaviour that I felt was 20 unusual. I do not think that his pattern of 21 walking would necessarily be unusual in a 22 sober person doing the same thing. 23 I also have to consider the evidence that 24 I have heard and seen concerning the condition 25 of Hayward's knee. I have to consider the 26 photograph which was entered and 27 uncontradicted which, I think, shows the Official Court Reporters 35 1 extent of the injury and shows the extent of 2 the swelling which occurs on occasion. 3 I have considered that Corporal Hare was 4 tested thoroughly during cross-examination and 5 that his testimony remained in my assessment, 6 for the most part, unimpeached; however, I 7 find that by and large the same thing can be 8 said of Constable Hayward's testimony. 9 I have also closely considered the 10 evidence of Corporal Hare on what he observed 11 of Constable Hayward's driving. 12 As urged by Mr. Sinclair, I have 13 considered all of the witnesses's possible 14 motivations to testify as they have but I 15 think that I can only go so far with such an 16 approach before seriously undermining the onus 17 and standard of proof. 18 While I found Corporal Hare's testimony to 19 be believable, I remind myself that the 20 standard of proof beyond a reasonable doubt is 21 high. Simply believing that Constable 22 Hayward's ability to drive was impaired is not 23 enough. Even if I find it probable that 24 Hayward's ability to operate a motor vehicle 25 was impaired, that in and of itself is not 26 enough to find him guilty. 27 Certainly the Crown is not required to Official Court Reporters 36 1 prove the guilt of Constable Hayward to an 2 absolute or scientific certainty. However, 3 the Supreme Court of Canada has clearly stated 4 that the standard of proof beyond a reasonable 5 doubt lies closer to that of scientific 6 certainty than it does to mere probability. 7 As a number of authorities suggest, including 8 most recently the English Court of Appeal in 9 the 2009 case of Majid, the ultimate question 10 that I should ask myself is whether or not, on 11 the evidence that I have heard, I am sure of 12 the accused's guilt. Am I sure that each and 13 every element of the offence of impaired 14 driving has been made out? Am I sure that 15 Hayward's ability to operate a motor vehicle 16 was impaired by alcohol? 17 I have applied the three part test I 18 earlier referred to. I have applied it in the 19 order set out by the Supreme Court of Canada 20 in R v. W. D., I have considered the evidence 21 in its totality at length, and I find that 22 this is a close case. 23 However, when I ask myself whether I am 24 able to say I am sure Hayward's ability to 25 operate a motor vehicle was impaired, based on 26 all of the evidence that I have heard, or 27 otherwise observed, and after applying the Official Court Reporters 37 1 test set out in Stellato and Andrews, the 2 answer is no. Therefore, I must find him not 3 guilty. An acquittal will be entered. 4 I believe that that deals with everything. 5 THE CLERK: Yes, sir. 6 7 ------------------------------------- 8 9 10 11 Certified to be a true and accurate transcript pursuant 12 to Rules 723 and 724 of the Supreme Court Rules, 13 14 15 16 17 ____________________________ 18 Lois Hewitt, Court Reporter 19 20 21 22 23 24 25 26 27 Official Court Reporters 38
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