New & Notable: Bad driving can be a "strong indicator"

Jorge Barahona was driving his car on December 6, 2007. He lost control of his car, left the highway, entered the snow bank and continued for about 160 metres. His car then began spinning and slid into a light standard. A taxi happened by and found Barahona in his car on the road. The taxi driver inquired if Barahona needed help and he indicated that he was fine. The taxi driver left the scene but was concerned so he called 911. A short time thereafter an officer arrived. He ultimately made observations which lead to an arrest for impaired care or control.
At trial on charges of impaired and “over 80” care or control, two issues arose: R v Barahona, 2011 ONCJ 418
First, was the first sample taken within two hours of the time of the offence. Brewer J found that the time of the offence was the time of care or control as noted by the taxi driver (who testified). In accepting this as the time of the offence Brewer J noted that where the presumption of care or control applies (which it did in this case) operability of the vehicle is irrelevant: R v MacKay-Clouthier, 2009 CarswellOnt 8596 (SCJ). Based on this time the first sample was taken within two hours [paras 12-16].
Second, did the Crown prove the impaired charge. In considering the issue Brewer J noted that the question – as set out in R v Andrews, 1996 CarswellAlta 7 (CA) – was “whether the totality of the accused’s conduct and condition can lead to a conclusion other than that his or her ability to drive is impaired to some degree” [para 19]. In the present case Brewer J noted the driving evidence coupled with the fact the road conditions were good and there was no evidence of any other “force or condition” which could have caused the accident was “one of the strongest indicators” [para 20]. Brewer J found the Crown had proven the impaired charge.

DG Mack

New & Notable: If it walks like a duck...

Kuldip Dhanjal was convicted of impaired operation.  Dhanjal unsuccessfully appealed that conviction before Miller J sitting on summary conviction appeal.  Dhanjal sought leave to appeal to the Ontario Court of Appeal.  That application was dismissed: R v Dhanjal, 2011 ONCA 666.
In dismissing the leave application, the Court of Appeal commented, albeit briefly, on the evidence and findings of the trial judge - impugned in the Notice of Appeal.
...Contrary to the submission of duty counsel, there was evidence from which the trial judge could conclude that the appellant’s alcohol consumption and its effects were greater than claimed by the appellant. In particular, we note that the appellant stopped to make a left hand turn for a prolonged period and then executed his turn in front of an oncoming car without activating his left turn signal. His car collided with that car. After the accident, the appellant stopped for only a few seconds, claiming that he did not see the other car or its driver although he had collided with it and it was parked nearby.

Finally, it was a cold November evening and he parked his car after the accident with the windows open, an indication that he likely intended to air it out from the smell of alcohol in the car. We add that the evidence of the appellant and his statements to the police gave further support to the conclusion that the appellant consumed more alcohol before the accident than he admitted [paras 5-6]; [emphasis added].

DG Mack