2005 SKQB 166 Q.B.A. A.D. 2004 No. J.C.B. IN THE QUEEN’S BENCH JUDICIAL CENTRE OF BATTLEFORD BETWEEN: CAMERON ELIOT CARR, APPELLANT (APPLICANT) and HER MAJESTY THE QUEEN, RESPONDENT Ronald P. Piché for the appellant (applicant) James T.V. Taylor for the respondent JUDGMENT FOLEY J. April 7, 2005 [1] On March 16, 2003, the appellant was charged, firstly, with operating a motor vehicle while his ability was impaired by alcohol under ss. 255(1) and 253(a) of the Criminal Code of Canada and, secondly, with having consumed alcohol in such a quantity that his blood alcohol level exceeded .08 contrary to ss. 253(b) and 255(1) of the Criminal Code. In rendering his decision, the trial judge stated at page 104: All of the evidence is that he was the complete focus of Constable Coe’s attention and can’t see that there is any unexplained delay. It’s very much the norm here, time wise, and it seems to me that, that that particular defence on the, on the .08 charge is not there. certainly think the impaired driving charge is stronger and although believe would as well convict him on the .08, but certainly find him guilty of the impaired and am entering judicial stay on the, on the .08 accordingly. [Emphasis added.] [2] The appellant’s notice of appeal filed May 5, 2004, references only the impaired driving count, but an amended notice of appeal of December 7, 2004, adds an appeal against purported conviction on the .08 count. An initial question therefore is whether the trial judge’s decision quoted above reflects a conviction on both counts or a conviction only for impaired driving. In my opinion, guilt was only determined with respect to the impaired driving charge. The entry of a judicial stay on the .08 charge was not used by the trial judge to avoid a multiple conviction issue. [3] The use of judicial stay to give effect to the rule against multiple convictions was explained by Quigley in Procedure in Canadian Criminal Law (Scarborough: Carswell, 1997) at page 481 as: The rationale behind the rule against multiple convictions is to prevent the vexatiousness and additional punishment that would otherwise result. The mechanism for doing so is the entering of judicial stay on the charge that is less serious when convicting of the more serious. However, the rule may not be used as device for avoiding conviction and punishment for more serious offence by pleading guilty to or being convicted of less serious offence. Moreover, appeal rights in respect of the stayed charge must somehow be preserved. and at page 482: Following that, if the accused appeals the conviction on the more serious charge and is successful, the appeal court may also rule on whether the conditional stay is dissolved. If so, the matter may be remitted to the trial judge to determine whether conviction should be entered on that charge. If the accused does not appeal the conviction on the more serious charge or is unsuccessful in an appeal, the conditional stay becomes permanent and equivalent to an acquittal for both appeal purposes and autrefois acquit purposes. [4] Here, the trial judge entered judicial stay on the .08 count without determining either guilt or innocence. Consequently, the only de jure appeal before this Court is that brought against the impaired driving conviction. [5] With respect to that conviction, the appellant seeks to have it set aside and either an acquittal entered or new trial ordered by virtue of alleged: (a) reliance by the trial judge on the readings contained in Certificate of Analysis; and (b) consideration by the trial judge of evidence arising subsequent to the breath demand. The Evidence at Trial [6] Late on the night in question, an off‑duty RCMP constable observed vehicle being driven erratically and dangerously on the highway. He reported his observations by radio to another RCMP unit whereupon that unit intercepted the accused’s vehicle near the town of Paradise Hill. It was observed turning into the town, entering into and exiting from the lot of car dealership for no apparent reason and then making turn back onto the highway. [7] Constable Coe testified that he followed the vehicle for four or five kilometres and, after seeing it being driven onto the shoulder of the road then back to the centre of the highway, he initiated stop. When he asked the accused driver whether he had been drinking, the accused conceded that he had. The constable testified: there was an alcohol odour inside the vehicle; the driver did not make much sense as to where he had been and where he was going; when requested for his driver’s license and registration, the driver could not produce either document and was “fumbling around the inside of the cab of the vehicle trying to locate the wallet”; when the driver exited the vehicle, he was “kind of stumbling and dropped the keys to the ground”; that “as the driver was little unsteady on his feet when he exited the vehicle, ...I arrested him, advised him he was under arrest for impaired operation of motor vehicle....” [13] The accused testified that he had consumed several beer that evening at hockey game and, in crossing the parking lot to his car, had fallen on ice and badly injured his leg. He had considerable difficulty walking and driving while he sought medical aid that night. [14] The trial judge observed: “Certainly, it sounds like the ... ankle was broke....”; “Clearly, the pain is ... mounting in his foot and that is causing him some difficulty, presumably difficulty in rationalizing how he should ... get to medical attention.”; and concluded: He drank six to eight beer after the hockey game, the hockey game ends at 10:00, 10:15 Alberta time. When he is stopped it’s 1:20 Saskatchewan time. He has had quite few drinks in short period of time. However, when he testifies he doesn’t think that that would have had any impact on his driving. The reading shows he is more than twice the legal limit, but presumably very, very seasoned drinker, and would not be impaired at the, at these high readings with that much alcohol. At least that is the view, and he says that all of his driving behaviour is attributable to his hurt ankle and was not as result of any impairment from the considerable alcohol that he had, he had drank. Certainly, stumbling and dropping his keys could be, as well, function of hurt ankle, and not function of, of his of his hurt foot.... Clearly his mind was not working properly, that is endangering both himself and other users of the road.... Certainly, agree that some of his erraticness may well have been combination of alcohol and very, very hurting ankle, but certainly some of the driving was result of his impairment, and in my view the Crown has made out that case. [17] In an impaired driving charge under s. 253(a), it is the quality of the driver rather than that driver’s quantity of consumption which is the focus of the inquiry. Volume of consumption falls within the provisions of s. 253(b). In this case, the evidence as to the accused’s pattern of driving, his unsteadiness and fumbling, coupled with his admissions and the odour of alcohol are matters which, if accepted by properly instructed finder of facts, could have resulted in conviction. [18] In this case, the trial judge concluded however that the erratic driving pattern “...may well have been combination of alcohol and very, very hurting ankle, but certainly some of the driving was result of his impairment....” The only foundation for the conclusion of impairment articulated in his rather rambling reasons for judgment are the references to beer consumption some hours earlier and “[t]he reading shows he is more than twice the legal limit....” The trial judge accepted that the accused’s unsteadiness could have been function of the hurt ankle. Consequently, the trial judge relied at least in part on the certificate readings for his conclusion of impairment. [19] In R. v. Randell (1994), 1994 CanLII 5069 (SK QB), 118 Sask. R. 48 at para. 21 (Q.B.), Gerein J. (as he was then) stated: ... Absent expert testimony interpreting particular reading, court cannot use the reading to come to conclusion as to what quantity of alcohol was consumed or what effect, vis‑à‑vis impairment, such consumption of alcohol had on the particular accused. In this case the trial judge, on the basis of the breathalyzer readings, concluded that the accused had consumed significant amount of alcohol. To come to this conclusion, without any interpretive testimony, was to commit an error in law. [Citations omitted.] [20] These observations are applicable in this case and there was an error of law. What the verdict would have been absent the trial judge’s consideration of the certificate is by no means clear. Consequently, I am obliged to resolve the matter in favour of the accused, and the conviction is set aside. [21] As noted above, however, I am of the opinion that the remaining admissible evidence could have resulted in a like verdict so rather than direct an acquittal, it is appropriate to order a new trial. [22] Accordingly, the appeal is allowed and the conviction is set aside with an order that a new trial be held before a judge of the Provincial Court for Saskatchewan. [23] In the event of new trial it is anticipated that the trial judge will have regard to the useful decision rendered by Judge Kolenick, Provincial Court judge, in R. v. Allin, 2003 SKPC 58 (CanLII), 233 Sask. R. 73, where in particular at paragraph 44 he notes of that case: In any event, the Crown is alleging the existence of signs of impairment and the accused has offered an innocent explanation for them. In those circumstances, the court should consider whether the evidence is sufficient to prove beyond reasonable doubt that alcohol consumption was contributing factor to the alleged signs of impairment.
The accused was charged with impaired driving contrary to s. 255(1) and s. 253(a) of the Criminal Code and with driving while over .08 contrary to s. 253(b) and s. 255(1) of the Criminal Code. The accused was convicted of impaired driving. An initial question is whether the trial judge's decision reflected a conviction on both counts or a conviction only for the impaired driving charge. HELD: The appeal is allowed and the conviction is set aside with an order that a new trial be held. 1) The court found a conviction was not entered on the .08 charge and the judicial stay was not used by the trial judge to avoid a multiplicity of convictions. 2) There was an error in law in that the trial judge relied at least in part on the certificate readings for his conclusion of impairment. What the verdict would have been, absent the trial judge's consideration of the certificate, is not clear. The matter must be resolved in favour of the accused. As the court was of the opinion that the remaining admissible evidence could have resulted in a like verdict, a new trial is ordered.