J. Dated: 20011015 2001 SKCA 105 Docket: 306 THE COURT OF APPEAL FOR SASKATCHEWAN Coram: Cameron, Gerwing Jackson JJ.A. HER MAJESTY THE QUEEN and TILAK R. MALHOTRA COUNSEL: Mr. W. Dean Sinclair for the Crown Mr. Mark Brayford, Q.C. for the Respondent DISPOSITION: On Appeal From: QBCA 27 OF 2000, J.C. of Prince Albert Appeal Heard: October 12, 2001 Appeal Allowed: October 12, 2001 Written Reasons: October 15, 2001 Reasons By: The Honourable Madam Justice Gerwing In Concurrence: The Honourable Mr. Justice Cameron The Honourable Madam Justice Jackson GERWING J.A. (orally) [1] The accused was convicted by a Provincial Court judge of having care and control of a motor vehicle while impaired, contrary to s. 253(a) of the Criminal Code. The Provincial Court judge, after trial, had acquitted him of a charge under s. 253(b) of the Code. On appeal, the Court of Queen’s Bench judge set aside the conviction and ordered an acquittal. It is from that that the Crown now appeals. [2] The accused testified that in an approximately 50 minute period after 6:45 p.m., he consumed three drinks of scotch, each of which contained two to three ounces of liquor. He then returned to his office leaving, according to his testimony, at about 7:55 p.m. While he was driving back his cell phone rang and as he answered he realized he was going to have an accident. At the time he was driving on the wrong side of the street and collided with vehicle travelling in the opposite direction. The only reason the vehicle did not collide head-on was that the driver of the other car stopped his vehicle. There was differing testimony by the two drivers as to the speed, but the trial judge found this merely to be one more indicia of lack of accurate reflection by the accused. He found as follows: 27. There are several matters which in my view contradict the accused’s assertions that his ability to concentrate and his judgment were unaffected, and which also indicate some lack of accurate recollection. Swan says that the accused was going “quite fast” before the collision, and if he had not stopped, it would have been “head on”. The accused says that he was doing 20 kilometres per hour and that he had “almost stopped”. 28. The accused attributes the observed unsteadiness in his walk to his hip injury, rather than to any impairment. It is quite possible that the bad hip, combined with poor footing, contributed to the observed “very staggered” walk and it is also quite possible that the alcohol he had consumed played part. 29. Examples of impaired judgment on the part of the accused, apart from the decision to drive to his office after having consumed three rather large drinks of scotch, include the attempt to access his cell phone while approaching an intersection, having passed vehicle on his side of the road, on slippery up-hill road which he described as “problem road” any time in the winter. In fact he admitted that this was lack of good judgment on his part. 30. The accused asking Swan what he was doing on the wrong side of the road similarly indicates lack of judgment. His explanation for this behaviour seems to me to be ex post facto rationalization. 31. Impairment of ability to concentrate is indicated by the fact of driving on the wrong side of the road whilst attempting to access the cell phone. Dr. Rockerbie admitted in cross-examination that the ability to concentrate on two tasks simultaneously might be affected by alcohol at lower levels of blood alcohol concentration, but added in re-examination by defence counsel that driving tasks are not affected until levels of 140 150 milligrams are reached. 32. When asked in re-examination by Crown whether fatigue can exacerbate the effects of alcohol, Dr. Rockerbie replied, “nothing can be said about that”. interpret this in the context of his evidence that small amounts of alcohol can be stimulative and actually improve driving performance for some drinkers. It is matter of law that where driving impairment results from combination of fatigue and consumption of alcohol, the offence is complete; see R. v. Pelletier, (1989) Q.B.C.A. #59, (Sask.) and cases referred to therein. [3] The Queen’s Bench judge on appeal initially stated the correct standard of appellate review, that is whether the evidence was reasonably capable of supporting the trial judge’s conclusion, and went on to hold: [5] The trial judge was required to determine whether the appellant was impaired at the time of the accident at 8:00 p.m. cannot interfere with the trial judge’s conclusions that Cst. Schluff properly made the breathalyzer demand at 8:31 p.m., nor that accepting Cst. Schluff’s evidence that the appellant showed signs of impairment was unreasonable. Oppositely, by the time that Cst. Schluff made the demand, the appellant was showing the classic signs of impairment, including slurred speech, staggering and the need to urinate. Furthermore, the trial judge was correct in concluding that the appellant was impaired and becoming more so during the time at the police station. This is in keeping with the expert testimony of Dr. Rockerbie that the alcohol was rapidly being absorbed into the bloodstream. [6] But the crucial issue was whether the Crown proved beyond reasonable doubt that the appellant was impaired at 8:00 p.m., the time of the accident. find that the evidence raised reasonable doubt as to the appellant’s condition, and that reasonable doubt ought to have been exercised in the appellant’s favour. The witness that encountered the appellant at 8:00 p.m. was Steven Swan, the driver of the vehicle that the appellant ran into. Mr. Swan saw the appellant get out of his vehicle, walk over to Mr. Swan’s vehicle and speak to Mr. Swan. Aside from the awkwardness that resulted from the appellant accusing Mr. Swan of causing the accident, Mr. Swan noticed nothing to lead him to suspect that the appellant had been drinking, no less being impaired. It took approximately fifteen to twenty minutes for the police officers to arrive, and it was some minutes after that Cst. Schluff first spoke to the appellant and then observed the appellant walking. [7] Given the trial judge’s acceptance of the expert evidence that the blood alcohol was rapidly rising, and was in the range of .68 to.81 at 8:00 p.m., along with Mr. Swan’s observation that he did not observe any impairment, the trial judge ought to have concluded that the defence raised reasonable doubt. This is reversible error. The conviction cannot stand. The appellant is acquitted on the count of impaired driving. [4] In our view, the appellate court judge while stating the correct standard of review, did not in fact apply it. In her analysis she made inaccurate assessments of the evidence and the conclusions of the trial judge thereon. The acquittal because of reasonable doubt on the .08 charge did not have, expressly or inferentially, included in it finding by the trial judge that he accepted the testimony that the accused’s blood alcohol was between .068 and .081 at the time of driving. He did not, in fact, so accept. Further, it is inconsistent with the facts and the judgment of the trial judge on those facts, which are his sole province, to say, as the appellate court judge did, that Swan did not see any indicia of impairment. As noted, Swan saw the respondent driving his car in the wrong lane of traffic at, what he testified to be, relatively high speed. This was accepted among the indications of impairment of the respondent by the trial judge. [5] Given these failures in analysis, it is not necessary for us to deal with an argument now presented by the Crown that the appellate court judge also erred with respect to the nature of the charge when she focussed on post-driving conduct when the charge was care and control. On the analysis above alone, the verdict of the appellate court judge must be set aside. We are of the view that on the appropriately posed question, was there sufficient evidence on which properly instructed jury could have convicted on the charge here, the answer is unequivocally yes. There was probative evidence on each material point of the charge, it was carefully analyzed by the Provincial Court judge and his acceptance of critical points on each essential of the charge is set out in his judgment. [6] For these reasons, the appeal must be allowed, the judgment of the Court of Queen’s Bench is set aside and the judgment of the Provincial Court is restored.
The accused was convicted of having care or control of a motor vehicle while impaired (Criminal Code s.253(a)) but acquitted on the charge under s.253(b). The Provincial Court trial judge did not accept the accused's testimony that his blood-alcohol concentration was between .068 and .081 at the time of driving. On appeal the Queen's Bench judge set aside the conviction and ordered an acquittal. HELD: The appeal was allowed. The Queen's Bench judgment was set aside and the Provincial Court trial judgment was restored. While the appellate judge stated the correct standard of review, he did not in fact apply it and made inaccurate assessments of the evidence and conclusion of the trial judge.