J. Q.B.C.A. A.D. 1993 J.C.S. IN THE QUEEN'S BENCH JUDICIAL CENTRE OF SASKATOON and HER MAJESTY THE QUEEN RESPONDENT M.W. Owens for the appellant T. Hinz for the respondent JUDGMENT OSBORN J. January 23, 1995 The appellant was, on March 10, 1993 convicted ofthe followingcharge:(a)That A. M. on or about the 7th day ofSeptember, 1992 did while her ability tooperate a motor vehicle was impaired byalcohol or a drug operate a motor vehicle,contrary to Section 253(a) of the CriminalCode. The appellant appeals from the conviction. Thegrounds for appeal are as follows:(a)That the conviction was contrary to thelaw, the evidence and weight of the evidence;(b)That the learned trial judge made an errorin law in determining the degree of impairmentby alcohol or drug required before aconviction can be entered; (c)Such further and other grounds as counsel may advise and this Honourable Court may allow. As to the second ground of appeal, the trial judge at p. 281 of the transcript said: The youth is also charged under count one with driving while impaired on the date in question. As pointed out to Counsel at the conclusion of the trial, there is recent decision from the Ontario Court of Appeal dated January 7th, 1993, namely, The Queen vs. Stellato in regards to the standard of proof required for conviction on charge of impaired driving. In particular, the case deals with whether or not "marked departure from what is usually considered as the norm" is required for conviction. The expression marked departure comes from the case The Queen vs. McKenzie, 1955, 111 Canadian Criminal Cases, Page 317. It has been used extensively in cases since that date. Indeed MacKenzie continues to be followed in Alberta in recent decisions. However, the Stellato decision differs with the marked departure standard. The Ontario Court of Appeal decides that, and quote: "impairment is an issue of fact which the trial judge must decide on the evidence and the standard of proof is neither more nor less than that required for any other element of criminal offence: courts should not apply tests which imply tolerance that does not exist in law." Further, the Stellato decision states as follows: "In all criminal cases the trial judge must be satisfied as to the accused's guilt beyond reasonable doubt before conviction can be registered. Accordingly, before convicting an accused of impaired driving, the trial judge must be satisfied that the accused's ability to operate motor vehicle was impaired by alcohol or drug. If the evidence of impairment is so frail as to leave the trial judge with reasonable doubt as to impairment, the accused must be acquitted. If the evidence of impairment establishes any degree of impairment ranging from slight to great, the offence has been made out." am in agreement with the Stellato decision. In particular, agree with their statement that evidence of impairment can include range of impairment from slight to great. In the case before me, am satisfied beyond any reasonable doubt that A. M.'s ability to operate motor vehicle was impaired by alcohol on the date in question. The Stellato case referred to by the trial judge has been affirmed by the Supreme Court of Canada, [1994] S.C.R. 478 and has been followed by the Court of Appeal of Saskatchewan in R. v. McCallum, (unreported decision dated October 25, 1994, No. 6334) which confirmed that impairment is an issue of fact. The second ground of appeal, as well as the remaining grounds of appeal all turn essentially on questions of fact. The essence of the appeal is alleged errors by the trial judge in assessing the evidence and the credibility of the appellant and her witnesses. Findings of fact are not to be reversed on appeal unless it can be established that the trial judge made some palpable and overriding error which affected her assessment of the facts. See Lensen v. Lensen, 1987 CanLII (SCC), [1987] S.C.R. 672. I am unable to say that an error of that kind wasmade by the trier of fact in this case. As well, the appellant is faced with the trial judge's assessment of credibility. The trial judge heard and observed the parties. There is no basis upon which her findings on credibility can be disturbed. The task of this Court is not to retry the case. Absent the kind of error alluded to, this Court cannot substitute its opinion for that of the trial judge on questions of fact, and there are no inferences of fact to be deduced from the trial judge's findings of fact which contradict her resolution of the issue before her. It cannot be said that the findings by the trial judge are not supported by the evidence, or that her conclusions are clearly wrong as to make her decision unreasonable. The appellant has therefore failed to come within the provisions of s. 686(1)(b)(ii) of the Code. Likewise, the appellant has not shown an error by the trial judge on question of law as provided in s. 686(1)(a)(ii). The appeal is therefore dismissed.
The accused appealed her conviction on a charge of impaired driving. The grounds of her appeal were that the trial judge erred in determining that she was impaired, and that the trial judge otherwise misconstrued and misapplied the evidence. HELD: Appeal dismissed.  1)Both grounds of appeal raised questions of fact. Findings of fact are not to be reversed on appeal unless it can be established that the trial judge has made some palpable and overriding error which affected her assessment of the facts. 2)The Court's task is not to retry the case or substitute its own decision. A trial judge's findings of fact can only be overturned if they are so clearly wrong as to make the decision unreasonable. 3)The Court was unable to say that an error of that kind was made by the trial judge in this case.