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
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Charge under s. 253(1)(a) Criminal Code of Canada
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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
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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
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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
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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
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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
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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.
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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
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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
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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
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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
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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
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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
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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
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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
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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
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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
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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
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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
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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
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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
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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.
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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
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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
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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.
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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
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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
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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
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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
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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
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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
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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
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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
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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
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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
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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
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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
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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
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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.
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11 Certified to be a true and
accurate transcript pursuant
12 to Rules 723 and 724 of the
Supreme Court Rules,
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17 ____________________________
18 Lois Hewitt,
Court Reporter
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