R. v. Morris, 2011 ABQB 357

Court of Queen ’ s Bench of Alberta Citation: R. v. Morris, 2011 ABQB 357 Date: 20110530 Docket: 090153131S1 Registry: Edmonton Between: Her Majesty the Queen Appellant - and - Kevin Peter Morris Respondent _______________________________________________________ Memorandum of Decision of the Honourable Mr. Justice K.D. Yamauchi _______________________________________________________ I.

Introduction [ 1 ] The Crown charged Kevin Peter Morris (the “Respondent”) that he: On or about the 3 rd day of January, 2009, at or near Edmonton, Alberta, having consumed alcohol in such a quantity that the concentration thereof in his blood exceeded 80 milligrams of alcohol in 100 millilitres of blood, did unlawfully operate a motor vehicle, contrary to section 253(1) (

b) of the Criminal Code of Canada .

[ 2 ] The matter was heard in the Provincial Court of Alberta. In written reasons dated November 17, 2010, the learned Provincial Court judge acquitted the accused on the basis that the accused rebutted the presumption of identity: R. v. Morris , 2010 ABPC 369 at para. 34 . Accordingly, the learned Provincial Court judge found that the Crown had not proven beyond a reasonable doubt the elements of s. 253(1) (

b) of the Criminal Code , R.S.C. 1985, c. C-46 (“ Code ”). [ 3 ] The Crown appeals the decision of the learned Provincial Court Judge. II. Salient Facts [ 4 ] The Respondent testified that on the night in question, he attended a pub after work with his fiancée. They arrived at the pub shortly after 5:30 p.m. and ordered beer. They received their first jug of beer at around 6:00 p.m. The Respondent testified that he and his fiancée split the beer evenly. They each would have consumed approximately two glasses per jug.

Between the two they finished three jugs of beer. [ 5 ] The Respondent testified that he poured his second last beer at approximately 11:30 p.m. He and his fiancée decided to leave at approximately 12:10 a.m. He poured himself his last beer. The Respondent went out to warm up his truck. When he returned after starting his vehicle, the Respondent still had approximately ¾ of a glass of beer left. The Respondent testified that he “chugged” that beer while his fiancée paid their bill. They left the bar at approximately 12:20 a.m. or 12:25 a.m. Cst.

Fermaniuk of the Edmonton Police Service (“EPS”) pulled the Respondent over at approximately 12:30 a.m. [ 6 ] Cst. Fermaniuk asked the Respondent to provide a breath sample into an approved screening device. The Respondent complied and the approved screening device registered a “fail,” which Cst. Fermaniuk understood to mean that the Respondent had a blood alcohol concentration level of at least 100 mg. of alcohol in 100 mL. of his blood. For simplicity, this Court will refer to these ethanol/blood concentration as “[x] mg/100 mL”. Cst.

Fermaniuk transported the Respondent to the police detachment, where the Respondent provided two samples of breath: the first sample at 1:18 a.m., and the second sample at 1:43 a.m. Both samples indicated the same blood alcohol concentration, namely, 90 mg/100 mL, which is over the legal limit of 80 mg/100 mL. [ 7 ] The parties did not dispute the fact that each jug of beer is equivalent to approximately four 16 ounce pint glasses of beer. III. Expert Evidence [ 8 ] The learned Provincial Court judge qualified Dr.

Jerry Malicky as an expert in the areas of: 1. the effects of alcohol in the human body, 2. the use, theory and operation of the Intoxilyzer 5000C as an instrument based on infrared spectroscopy, 3. the absorption and elimination rates of alcohol in the human body, and 4. the distribution of alcohol in the human body. [ 9 ] Dr. Malicky holds a B.Sc. and a M.Sc. in pharmacy, and a Ph.D in pharmaceutical chemistry and pharmacology. He testified

that he has been qualified as an expert in the theory and operation of the breathalyzer instruments “at all levels of court in Alberta.” It is interesting to note that Dr. Malicky referred to testing that he had undertaken with respect to the Intoxilyzer 5000C and the fact that “[i]f I published research results in the rate of elimination in a peer review scientific journal ... I would not be challenged in my publications because when I use the infrared spectroscopy, we use it as the manufacturer designed it to be”: Trial Transcript p. 127, l. 4; p. 127, l. 1, ll. 4-6. [ 10 ] Dr.

Malicky testified that individuals eliminate alcohol at different rates and an individual can eliminate differently under different circumstances: Trial Transcript p. 130, ll. 38-41; p. 131, ll. 1-6; p. 135, ll. 28-31. [ 11 ] Dr. Malicky did not test the Respondent for alcohol absorption and elimination rates. Rather, the Respondent presented Dr. Malicky with a hypothetical situation, and asked him to comment on the expected blood alcohol concentrations given the scientific knowledge on the absorption, metabolism and elimination of ethanol. The Respondent asked Dr.

Malicky to assume a person of the Respondent’s height and weight started drinking Coors Light, which has 4% alcohol per volume, at 6:00 p.m. The hypothetical person consumes four 16 ounce glasses between 6:00 p.m. and 11:30 p.m. The hypothetical person then drinks a fifth 16 ounce glass between 11:30 and 12:10 and partially consumes a sixth 16 ounce glass until 12:22, and then gulps down the remainder within the last minute or so. [ 12 ] Dr. Malicky referred to this rapid ‘gulping down’ process as “bolus drinking,” which is when a person rapidly ingests alcohol: Trial Transcript p. 129, ll. 37-39. Dr.

Malicky opined that if the hypothetical person had not eliminated any alcohol, his blood alcohol concentration level after drinking six 16 ounce glasses of beer would be 132 mg/100 mL: Trial Transcript p. 135, ll. 5-6. This result is based on each glass of beer increasing the hypothetical person’s blood alcohol concentration by 22 mg/100 mL: Trial Transcript p. 135, ll. 1-3. [ 13 ] Dr. Malicky testified that he would expect the hypothetical person to eliminate ethanol at a rate of approximately 10-20 mg/100 mL: Trial Transcript p. 135, ll. 23-26. Curiously, Dr.

Malicky does not provide a time component for this “rate” but it appears from his subsequent statement that the “rate” is per hour. Dr. Malicky testified that he anticipated that the blood alcohol concentration would, in 6.5 hours, decrease by 65 mg/100 mL due to elimination processes and that the 65 mg/100 mL reduction is based on the low end of the 10-20 mL/100mL / hour range: Trial Transcript p. 135, ll. 36-40. [ 14 ] On that basis, Dr.

Malicky calculates that if the hypothetical person drank from 6:00 p.m. onwards at the predicted rate, his blood alcohol concentration level at 12:30 could be as high as 67 mg/100 mL or as low as 2 mg/100 mL: Trial Transcript p. 135, ll. 33- 40. [ 15 ] When counsel for the Respondent asked Dr. Malicky how fast absorption occurs. Dr. Malicky testified that “... it's always difficult to do a calculation on how much total absorption has occurred. Generally, one expects 20 minutes to 3 hours for total absorption to occur”: Trial Transcript p. 136, ll. 19-27.

He testified that in his estimation the last beer that the hypothetical person consumed (the bolus drinking) would have been absorbed into the bloodstream in the 60-75 minutes after it was ‘chugged’: Trial Transcript p. 137, ll. 9- 13. Had the last beer been unabsorbed by the time the hypothetical person was driving (at 12:30 p.m.), Dr. Malicky testified that the hypothetical person’s blood alcohol concentration level would have been between 0-47 mg /100 mL at the time of driving: Trial Transcript p. 142, ll. 17-24. [ 16 ] Dr.

Malicky testified that, based on the drinking pattern proposed by the Respondent, the hypothetical person’s blood alcohol concentration level would have been between 0-59 mg/100 mL at the time of testing: Trial Transcript p. 137, ll. 1-7. Dr. Malicky expected that between 12:30 a.m. and 1:18 a.m., the accused’s blood alcohol would increase, rising from the moment he ceased drinking until the blood alcohol concentration peaked sometime afterwards.

The maximum blood alcohol concentration might occur an hour, half an hour, or three hours later, depending on the circumstances: Trial Transcript p. 137, ll. 15-23. [ 17 ] Dr. Malicky testified that the Respondent’s described drinking pattern was not consistent with the readings that the EPS obtained. A blood alcohol concentration of 90 mg/100 mL would require a person such as the Respondent to drink more than six 16 ounce pints of beer: Trial Transcript p. 137, ll. 30-38.

If the accused had some unabsorbed alcohol in his stomach, he could theoretically have had a blood alcohol concentration of under 80 mg/100 mL at the time of driving, and that concentration could increase to 90 mg/100 mL when he was tested 50 minutes later. [ 18 ] However, the quantity of beer that the Respondent says he drank did not support this hypothetical situation: Trial Transcript p.

142, ll. 1-7. On the other hand, Dr. Malicky also said that if he worked backwards from a 90 mg/100 mL blood alcohol concentration detected at 1:18 a.m. and 1:43 a.m., the hypothetical person might have a blood alcohol concentration below 80 mg/100 mL at 12:30 p.m., the time the EPS stopped the Respondent: Trial Transcript p. 138, ll. 1-4. [ 19 ] Dr. Malicky, on several occasions, cautioned that his evidence was based on the hypothetical that the Respondent presented to him.

He had some doubt concerning the volume of the glass that formed the hypothetical and the “quality” of the beer that the hypothetical person consumed: Trial Transcript p. 141, ll. 37-41. IV. The Alberta Provincial Court Decision [ 20 ] The learned Provincial Court judge found that the accused had rebutted the presumption of identity. Thus, he found that the Crown had not proven the elements of Code s. 253(1)(

b) beyond a reasonable doubt. In reaching his conclusion, he made the following findings of fact: (

a) the Respondent had a blood alcohol concentration of 90 mg/100 mL when tested by the EPS at 1:18 a.m. and 1:43 a.m.; (

b) the Respondent “chugged” 12 ounces of beer within a few minutes before driving, and consumed 4 ounces of beer in the quarter hour leading up to that; (

c) each 16 ounces of beer, when fully absorbed, increases the blood alcohol concentration by 22 mg/100 mL; and (

d) if even half of the last glass of beer was unabsorbed during the last few minutes before leaving the bar, the Respondent would have been under the legal limit of 80 mg/100 mL at the time he was stopped while driving. [ 21 ] As well, it is important to note that the learned Provincial Court judge commented on the Respondent’s credibility.

He said: 1. “The Court finds that he was a credible witness, honest in his recall but mistaken in some respects.”: Morris (ABPC) at para. 4; 2. “The Court accepts, or at least does not reject, the accused’s testimony concerning the total quantity consumed collectively between himself and his fiancée. ...

The accused’s memory as to how much of the three pitchers he consumed, however, is suspect.”: Morris (ABPC) at para. 5; and 3. “While the Court accepts that the accused's impression that he had about the same amount as his partner is genuine, it is too fraught with uncertainties to be given any weight.”: Morris (ABPC) at para. 6. [ 22 ] With respect to Dr.

Malicky, the learned Provincial Court judge at para. 10 said: Curiously, the expert was never asked to opine as to the hypothetical person’s probable blood alcohol level at the time of driving, assuming that the readings were accurate and assuming that the person chugged three quarters of a 16 ounce glass of Coors Light beer five to ten minutes before driving. Nonetheless, the expert did volunteer, in answer to a different question, that assuming the readings in this case were accurate, this is not inconsistent with the accused being under the legal limit at the time of driving.

The expert stated: "There is some likelihood he would have unabsorbed alcohol in his stomach and he could be theoretically below .08 at the time of

apprehension and yet rise to 90 but he would have to drink more beer than six.” V. Issue [23] The ground on which the Crown appeals is that the learned Provincial Court judge’s verdict was unreasonable, andunsupported by the evidence because he misapprehended the evidence and he erred in law by basing his reasonable doubt on speculation. VI. Law A. Standard of Review [24] The first matter which this Court must address, before dealing with the substantive issues the Crown brings before it, is thestandard of review that this Court must apply when it undertakes this appeal.

The standard of review depends on whether this Court isdealing with facts, law or mixed fact and law. These categories are easy to articulate but, at times, they are difficult to separate. [25] The court in Interfaith Community Organization v. Honeywell Intern., Inc., 399 F.3d 248 at 269-70 (3rd Cir. 2005),provided a test that might help this Court evaluate the nature of the current appeal issue: ... a practical test I propose for determining whether a question is of fact, of law, or of both fact and law, is as follows.

A question of factcan be answered solely by determining the facts of a case (without any need to know the law relevant to the case). A question of law canbe answered solely by determining what relevant law means (without any need to determine the facts of a case). A mixed question of factand law can only be answered by both determining the facts of a case and determining what the relevant law means.

For example, imagine that a man is appealing his conviction under a law that states “it is a crime to be tall.” What kind of question is:“Was the trial court correct to find the man ‘tall’?” Can we answer it solely by determining the facts of the case? No, because even if weknow the fact that the man is five feet ten inches, we do not know if he is “tall” in the sense that Congress intended the word “tall” tomean. Can we answer it solely by determining what the relevant law means without knowing the man's height?

No, because even if weknow that the statute defines “tall” as “six feet or taller,” we do not know how tall the man is. Thus, we have a mixed question of factand law. Once we know the facts of the case (that the man is five feet ten inches tall), and what the relevant law means (it is a crime tobe six feet tall or taller), we can answer “no” to the question “Was the trial court correct to find the man ‘tall’? [26] In Canada, an appeal court reviews a question of law on a standard of correctness, and a question of fact on a more deferentialpalpable and overriding error standard, Housen v.

Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235 (”Housen”). An appellate courtreviews a question of mixed fact and law on a standard of palpable and overriding error: Housen at paras. 26-36. A question of mixedfact and law with an extricable error in principle can be characterized as an error of law.

An extricable error in principle is one that “canbe attributed to the application of an incorrect standard, a failure to consider a required element of a legal test, or a similar error inprinciple”: Housen at para. 36. [27] The Crown argues that the learned Provincial Court judge arrived at an unreasonable verdict and that this is an error of lawwhich is reviewable on the “correctness” standard. The test for whether a trial court has rendered an unreasonable verdict is whether theverdict that is not one that “a properly instructed jury, acting judicially, could reasonably have rendered”: R. v.

Yebes, (SCC), [1987] 2 S.C.R. 168 at para. 16, 43 D.L.R. (4th) 424, quoting R. v. Corbett, (SCC), [1975] 2 S.C.R. 275 at 282,42 D.L.R. (3d) 142. [28] In R. v. Biniaris, 2000 SCC 15 , [2000] 1 S.C.R. 381 at 405-407, 184 D.L.R. (4th) 193, the court outlined the role ofan appellate court in assessing the reasonableness of a verdict from a judge sitting alone:

That formulation of the test imports both an objective assessment and, to some extent, a subjective one. It requires the appeal court todetermine what verdict a reasonable jury, properly instructed, could judicially have arrived at, and, in doing so, to review, analyze and,within the limits of appellate disadvantage, weigh the evidence. This latter process is usually understood as referring to a subjectiveexercise, requiring the appeal court to examine the weight of the evidence, rather than its bare sufficiency.

The test is therefore mixed,and it is more helpful to articulate what the application of that test entails, than to characterize it as either an objective or a subjective test. … These examples demonstrate that in trials by judge alone, the court of appeal often can and should identify the defects in the analysisthat led the trier of fact to an unreasonable conclusion.

The court of appeal will therefore be justified to intervene and set aside a verdictas unreasonable when the reasons of the trial judge reveal that he or she was not alive to an applicable legal principle, or entered a verdictinconsistent with the factual conclusions reached. These discernable defects are themselves sometimes akin to a separate error of law,and therefore easily sustain the conclusion that the unreasonable verdict which rests upon them also raises a question of law.

This Court will examine the issue before it, bearing in mind the foregoing tests. [29] The Respondent discussed the sufficiency and coherence of the learned Provincial Court judge’s reasons. This Court has nodifficulty with the learned Provincial Court judge’s reasons for his decision. The learned Provincial Court judge was alive to the parties’arguments and responded to them. That, however, is not the issue before this Court.

The issue lies in the conclusions he reached. [30] The Crown grounds its appeal on the learned Provincial Court judge’s misapprehension of the evidence that was before him.Accordingly, it argues that the verdict the learned Provincial Court judge rendered was unreasonable, as that verdict was not supported orsupportable by the evidence. It should be noted, however, that the learned Provincial Court judge’s misapprehension of the evidence isnot a condition precedent to a finding that a verdict is unreasonable: R. v. Morrissey (1995), (ON CA), 22 O.R. (3d)514, 97 C.C.C. (3d) 193 at para. 89 (Ont. C.A.).

However, such a finding will weigh heavily in an appellate court’s mind when itconsiders whether the resulting verdict is unreasonable and especially so when the trial judge misapprehended significant evidence, ibid. B. The Presumption of Identity [31] Parliament has created presumptions in the Code that are designed to ease the Crown’s burden of proof of an accused person’sblood alcohol level at the time of the offence. Code s. 258(1)(

c) creates a presumption that the blood alcohol concentration detected byan “approved instrument” operated by a “qualified technician” is accurate, unless rebutted by specific evidence, see also R. v. Gibson,2008 SCC 16, [2008] 1 S.C.R. 397.

This is known as the “presumption of accuracy.” [32] A second legislative presumption is sometimes called the “presumption of identity” or the “presumption of excessive bloodalcohol.” Here, identity does not refer to the ‘identity’ of the person in question, but rather that a blood alcohol concentration measured atone point can be presumed to indicate an ‘identical’ concentration at an earlier point in time. [33] In most cases, the presumption reflects the fact that biological processes generally operate to remove ethanol, so a bloodalcohol concentration that exceeds a legal limit at a certain time would usually mean that an even higher illegal blood alcoholconcentration existed in the near past. [34] If a peace officer has reasonable grounds to believe that a person is committing, or at any time within the preceding threehours has committed, an offence under Code s. 253 as a result of the consumption of alcohol, Code s. 253(3) allows a peace officer todemand that person provide a sample of their breath to determine the concentration, if any, of alcohol in that person’s blood.

If the peaceofficer complies with the provisions that govern the taking of the breath sample, Code s. 258(1)(d.1) provides: (d.1) if samples of the accused’s breath or a sample of the accused’s blood have been taken as described in paragraph (c) ... under theconditions described in that paragraph and the results of the analyses show a concentration of alcohol in blood exceeding 80 mg ofalcohol in 100 mL. of blood, evidence of the results of the analyses is proof that the concentration of alcohol in the accused’s blood at thetime when the offence was alleged to have been committed exceeded 80 mg of alcohol in 100 mL. of blood, in the absence of evidence

tending to show that the accused’s consumption of alcohol was consistent with both (

i) a concentration of alcohol in the accused’s blood that did not exceed 80 mg of alcohol in 100 mL. of blood at the time when theoffence was alleged to have been committed, and (ii) the concentration of alcohol in the accused’s blood as determined under paragraph (

c) or (d), as the case may be, at the time when thesample or samples were taken; [Emphasis added.] Code s. 258(1)(d.1) is the presumption of identity. [35] The presumption of identity can be defeated by introducing some variable that would mean a measured blood alcoholconcentration is an inaccurate representation of the pre-measurement state. R. v. St. Pierre, (SCC), [1995] 1 S.C.R.791, 122 D.L.R. (4th) 619 provides an excellent example of how that kind of situation can arise. There, the accused was detained bypolice who suspected she was driving while intoxicated.

She had to wait for an hour before she was tested and found to have a bloodalcohol concentration of 180 mg/100 mL. During that one hour interval the accused clandestinely consumed two small bottles of vodka. [36] Iacobucci J. concluded for the majority that the ‘new input’ of alcohol meant the court could not determine the concentrationof the alcohol in the accused’s blood at the time of the alleged offense. The accused was acquitted. [37] Since the Supreme Court of Canada decided St.

Pierre, a dialogue of amendments and Supreme Court of Canada decisionshas resulted in strengthened evidential presumptions: see R. v. St. Pierre, (SCC), [1995] 1 S.C.R. 791, 96 C.C.C. (3d)385; R. v. Boucher, 2005 SCC 72 , [2005] 3 S.C.R. 499, 202 C.C.C. (3d) 34; R. v. Gibson, 2008 SCC 16 , [2008] 1S.C.R. 397, 230 C.C.C. (3d) 97. Code s. 258(1)(d.1), as transcribed in these reasons, incorporates those amendments. C.

Onus and Standard of Proof [38] Code s. 258(1)(d.1) shows that the accused person must present evidence that raises reasonable doubt in the mind of the trierof fact that the accused’s blood alcohol level at the time of driving was within the legal limit. This is often done by the accused providingevidence which “tends to show” that their drinking quantity and pattern was consistent with the readings which would place the accusedwithin the legal limit: R. v. Truong, 2010 BCCA 536 at para. 20, 296 B.C.A.C. 248. [39] This might appear to shift the onus of proof to the accused.

However, the onus never shifts to the accused and the Crownbears the burden of proof beyond a reasonable doubt that the accused committed the offence. Rather, this rule allows an accused topresent evidence that would raise a reasonable doubt in the trial judge’s mind sufficient to acquit the accused: Gibson at para. 17. D. Evidence “Tending to Show” [40] Evidence “tending to show” is evidence that displaces the presumption of identity: R. v. Clark, 2010 ABCA 335 at para. 3,490 A.R. 268.

The parties have given this Court a number of cases that interpret the words evidence “to the contrary.” Is this the same asevidence “tending to show”? There is a difference, which is more than semantic. Evidence “to the contrary” is evidence that disprovesthe principle, whereas evidence “tending to show” is positive evidence that proves something else. Evidence “to the contrary” wouldseem to be a higher standard, as an accused person would have to negate a proven fact. Evidence “tending to show” on the other handrequires an accused simply to proffer evidence supporting their position.

Despite this, in Gibson, the Supreme Court of Canada said thatthese phrases “reflect the same standard” (at para. 17).

[ 41 ] Therefore, what is the evidence that the accused must present to rebut the presumption? The Alberta Court of Appeal in R. v. MacDonald , 2006 ABCA 177 , 391 A.R. 140, quoting from R. v. Fox , 2003 SKCA 79 , 238 Sask.R. 271, said: 37 It is pertinent to differentiate in this case between evidence to the contrary with respect to the presumptions of identity and accuracy. The attack on the presumption of identity does not involve an attack upon the accuracy of the reading at the time it was taken.

As stated in Fox at para. 22 : Thus, evidence to the contrary for the purposes of challenging the presumption of identity must be evidence which accepts the result at the time of the test and shows that the blood alcohol content at the time of the test does not reflect the blood alcohol content at the time of driving. [Emphasis in original]. VII.

Analysis [ 42 ] Put simply, the learned Provincial Court judge concluded that the Crown had not established that the Respondent’s blood alcohol concentration at 12:30 p.m. is accurately reflected by the concentrations measured by the EPS at 1:18 a.m. and 1:43 a.m. [ 43 ] Is there any ‘evidence to the contrary’ that ‘tends to show’ that is so? This Court concludes that there is not. A. Bases for the At-Trial Reasoning [ 44 ] The Respondent advanced no rebuttal evidence at trial to challenge the 90 mg/100 mL blood alcohol concentrations observed at 1:18 a.m. and 1:43 a.m.

These measurements are therefore accurate. [ 45 ] The trial judge concluded that the Respondent and his fiancée had consumed between the themselves three pitchers of beer: Morris (ABPC) at para. 5. However, the trial judge concluded he could not reliably conclude that Mr. Morris had consumed half that amount: Morris (ABPC) at para. 6. It might be more. [ 46 ] Dr. Malicky testified that a person with the Respondent’s characteristics who consumed six 16 ounce pints of beer would achieve, at most, a blood alcohol concentration of 132 mg/100 mL. Dr.

Malicky’s opinion, which was accepted by the trial judge, was that even if only the minimum amount of alcohol was eliminated during the 6.5 hour drinking period then the maximum blood alcohol concentration that could be achieved by the hypothetical comparator person is 67 mg/100 mL. [ 47 ] The EPS tested the Respondent at 1:18 a.m. and 1:43 a.m. and he had a blood alcohol concentration, 90 mg/100 mL, which is substantially higher than the maximum concentration that Dr. Malicky projected. [ 48 ] That discrepancy can lead to only one of two possible conclusions: 1 Dr.

Malicky’s model of how ethanol is absorbed, transported, metabolized, and eliminated is inaccurate, or 2. The Respondent consumed more than six 16 ounce pints of beer.

[ 49 ] Assuming Dr. Malicky’s model is accurate, the question becomes how much beer would the Respondent have necessarily consumed to reach the observed 1:18 a.m. and 1:43 a.m. blood alcohol concentrations? Interestingly, Dr. Malicky does provide some evidence (Trial Transcript p. 142, ll. 2-7) for that calculation: ...

And if he’s correct and he drank these last drinks, as he did, then there’s some likelihood he would have unabsorbed alcohol in his stomach and he would be theoretically below [80 mg/100 mL] at the time of apprehension and yet rise to 90 [mg/100 mL] but he would have to drink more beer than the six . If he drank, for example, eight beers he would probably would be nearer the value that he’s blown in the Intoxilyzer. But things don’t match up right now . (Emphasis added.) [ 50 ] In review, the evidence that the learned Provincial Court judge accepted means either that: 1. Dr.

Malicky’s evidence is unreliable as it cannot explain the blood alcohol concentrations observed by the EPS, or 2. The Respondent drank at least eight pints of beer. B. Scenario 1 - Dr. Malicky’s Evidence is Unreliable [ 51 ] The learned Provincial Court judge relied heavily on Dr. Malicky’s evidence when he concluded the Respondent had provided evidence that tended to show the Respondent’s blood alcohol concentration was under the legal limit at the time he was driving. See e.g. the reconstruction in Morris (ABPC) at para. 33. [ 52 ] If Dr.

Malicky’s evidence is unreliable then the learned Provincial Court judge had no basis to rely on that evidence. The expert evidence would then have little or no weight, and cannot displace the presumption created by Code s. 258(1)(d.1). C. Scenario 2 - Mr. Morris Consumed At Least Eight Pints of Beer [ 53 ] If Dr. Malicky’s evidence is reliable, then the only other possible explanation for the 1:18 a.m. and 1:43 a.m. blood alcohol concentrations is that Mr. Morris incorrectly tracked his alcohol consumption. The learned Provincial Court judge concluded that this was possible: Morris (ABPC) at para. 6. [ 54 ] Dr.

Malicky estimated that eight pints of beer may result in the observed 1:18 a.m. and 1:43 a.m. blood alcohol concentrations. [ 55 ] The only hypothetical timeline and

schedule for alcohol consumption that Dr. Malicky evaluated was one that matched the account provided by the Respondent. If Dr. Malicky’s expertise is accepted, then that alcohol consumption scenario cannot accurately reflect the Respondent’s consumption patterns on January 2-3, 2009. That means Dr. Malicky’s

interpretation of the hypothetical scenario is not relevant to the Respondent’s drinking on that night and the resulting physiological consequences. [ 56 ] This Court finds that the trial judge could not, from the facts he had accepted, conclude there was any ‘evidence to the contrary’ that ‘tends to show’ that the 1:18 a.m. and 1:43 a.m. blood alcohol concentrations did not accurately reflect Mr. Morris’s blood alcohol concentration when he was driving.

This Court arrives at this conclusion for two reasons. [ 57 ] First, in this scenario it is clear that the Respondent’s evidence on his beer consumption is inaccurate; he consumed at least another two pints. Further, if the Respondent’s testimony is unreliable on the amount of alcohol he consumed, then it is not possible to conclude with confidence that the pattern of alcohol consumption described is also accurate.

[58] Second, the expert’s testimony was that the manner in which a person ingests and eliminates alcohol is quite variable. Arethere other relevant variables that would come into play if Dr. Malicky were asked to reconstruct a different alcohol consumptionscenario, involving eight or more pints of beer? This Court does not know and neither did the learned Provincial Court judge. Withoutthat expertise and an ability to provide, with some confidence, a hypothetical scenario for review and comparison, a court could onlyguess at what the Respondent’s blood alcohol concentration was at 12:30 p.m.

D. “Straddle” Evidence [59] The learned Provincial Court judge based his conclusion on a reconstruction of the Respondent’s blood alcohol concentrationof the Respondent when he was stopped at 12:30 p.m. This reconstruction resulted in the possibility that the Respondent’s blood alcoholconcentration could ‘straddle’ the legal amount of 80 mg/100 mL: Morris (ABPC) at para. 33.

The parties commented in their oralsubmissions on the appropriate approach to ‘straddle evidence’. [60] This Court will not examine this analysis in detail, and simply notes that the learned Provincial Court judge’s conclusionrequired him to rely on one of the two evidentiary defects this Court has just reviewed. In short, the learned Provincial Court Judge’sapproach builds off of a defective factual foundation. E. Conclusion [61] The learned Provincial Court judge’s finding is speculative.

He did not have a factual basis to conclude there was anyevidence that tends to show that the observed 1:18 a.m. and 1:43 a.m. blood alcohol concentrations do not accurately reflect Mr. Morris’sblood alcohol concentration when he was observed driving and then detained. [62] Appellate courts have held that it is, in fact, an error of law to enter an acquittal based on a speculative or conjectural doubt, asopposed to a reasonable doubt based on the evidence that the parties have presented to the trial judge. In R. v. Morrissey (1995), (ON CA), 22 O.R. (3d) 514, 80 O.A.C. 161 (Ont.

C.A.), the court said: 52 A trier of fact may draw factual inferences from the evidence. The inferences must, however, be ones which can be reasonablyand logically drawn from a fact or group of facts established by the evidence. An inference which does not flow logically and reasonablyfrom established facts cannot be made and is condemned as conjecture and speculation. As Chipman J.A. put it in R. v. White (1994), 1994 NSCA 77 , 89 C.C.C. (3d) 336, 28 C.R. (4th) 160 (Nfld.

C.A.) at p. 351: These cases establish that there is a distinction between conjecture and speculation on the one hand and rational conclusions from thewhole of the evidence on the other. The failure to observe the distinction involves an error on a question of law. [63] When a trial court is dealing with “evidence to the contrary” in a case in which the accused is charged with driving when hisblood alcohol concentration is over 80 mg/100 mL, the Supreme Court of Canada said in R. v.

Crosthwait, (SCC),[1980] 1 S.C.R. 1089, 111 D.L.R. (3d) 431: While it is for the trier of fact to weigh the evidence, the question whether there is any evidence is a question of law and an acquittalbased on a doubt resting on a conjectural possibility will be set aside ... [Citation excluded]. [64] For the forgoing reasons, this Court finds that the verdict of the learned Provincial Court judge committed an error on aquestion of law and, as well, he misapprehended the evidence. It is also a palpable and overriding error to have a gap in reasoning andevidence, such as happened in this instance.

[ 65 ] This Court cannot discern from the trial transcript and the learned Provincial Court judge’s presentation of the facts whether the Crown has established the elements of the offence for which it has charged the Respondent. Accordingly, this Court sets aside the Respondent’s acquittal and orders a new trial. Heard on the 7 th day of May, 2011. Dated at the City of Edmonton, Alberta this 30 th day of May, 2011. K.D. Yamauchi J.C.Q.B.A. Appearances: Julie Snowdon Crown Prosecutors’ Office for the Appellant Mark E. Alexander Chomicki Baril Mah LLP for the Respondent