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