impaired driving – defence appeal from conviction on basis that trial judge erroneously concluded that Crown had established impairment of ability to drive – appeal dismissed.

[1] This is a summary conviction appeal from the Appellant s conviction after a trial in the Territorial Court on a charge of impaired driving.  The only evidence at trial was that of the investigating officer.

[2] The Respondent Crown concedes that the trial judge ought not to have considered as indicia of impairment of ability to drive two observations made by the investigating officer.  The first is his observation that the Appellant was staggering.  The officer conceded that he had, on subsequent occasions, observed that to be the Appellant s normal style of walking.  The second is his observation that the Appellant s face was flushed, as that evidence was elicited only on a voir dire and there was no agreement by counsel that it be applied to the trial proper.

[3] The issue then is whether the remainder of the evidence before the trial judge provides a sufficient basis from which to draw the inference that the Appellant s ability to drive was impaired by alcohol.  The Appellant argues that it does not and that the conviction is therefore unsafe and an acquittal should be entered. The Respondent submits that the remainder of the evidence is evidence from which a court could reasonably draw the inference that the Appellant s ability to drive was impaired.