New & Notable: Driving impaired not a marked departure? Not that it's the test anyway...

Suggashie was acquitted after trial of impaired operation of a motor vehicle contrary to s 253(1)(a) of the Criminal Code.

The trial was held in the First Nation territory of Pikangikum.


On appeal [2012 ONSC 22929], which was held in absentia, the Crown argued two grounds:


First, that the trial judge erred in law in finding that issue at trial was whether the conduct of the accused demonstrated a marked departure from that of a normal person.

Second, that the trial judge erred in finding that First Nations peacekeepers are peace officers with all the rights and responsibilities that such a designation entails.


Suggashie was observed by First Nations peacekeeper Peters driving a pickup truck. Peters saw Suggashie reverse into some bushes and then drive away. Peters followed and saw Suggashie weaving from side to side on the road.


Peters intercepted Suggashie as she pulled into her driveway and upon request Suggashie gave the keys to Peters at which time he noticed the smell of alcohol on Suggashie's breath, her bloodshot eyes, and that she was slurring her words.


Suggashie then asked Peters to arrest her husband who was a passenger in the vehicle for being intoxicated in the community. Peters complied with Suggashies’ request and took her husband to the detention centre and then contacted the OPP to report what he had observed about Suggashie. OPP officers attended Suggashie’s residence some 45 minutes after Peacekeeper Peters’ departure and noted similar indicia of impairment.


The trial judge held that “the issue before the court is whether or not the conduct of the accused demonstrates a marked departure from that of a normal person” [para 15]. Despite the fact that the trial judge found that both the OPP and Peacekeeper described Suggashie as exhibiting the “typical signs of impairment” [para 15], an acquittal was entered as the trial judge was troubled by the 45 minute lapse in time between the driving and the OPP arrival and by the fact that Peacekeeper Peters did not immediately arrest Suggashie.


On appeal, Fregeau J held that although the trial judge correctly articulated the law with respect to what is required to prove impairment in this case she erroneously applied a “higher, and incorrect, standard of a marked departure from that of a normal person” [para 20].


Fregeau J then considered whether the trial judge erred in her assumption that First Nations Peacekeepers are peace officers with all the rights and responsibilities thereof.


Fregeau J took judicial notice of the fact that:


First Nations peacekeepers are community volunteers that assist in maintaining order and assist police in resolving minor disputes in First Nations communities. Examples of their role include the actions of Peters in arresting Mr. Suggashie for public intoxication and in reporting Suggashie's alleged impaired operation of a motor vehicle to the OPP officers. Peacekeepers are not peace officers [emphasis added].


and held that:  


The finding of fact by the learned trial judge, namely that Peters was a "peace officer", was made in the absence of supportive evidence and constitutes an error in law [paras 26-27].


Having granted the appeal on both the articulated grounds the appellate judge subsequently entered a verdict of guilty [paras 39-40].