R. v. Kehr, 2011 ABQB 578

Court of Queen ’ s Bench of Alberta Citation: R. v. Kehr, 2011 ABQB 578 Date: 20111003 Docket: 100079938S1 Registry: Edmonton Between: Her Majesty the Queen Respondent - and - Amy Kehr Appellant _______________________________________________________ Reasons for Judgment of the Honourable Mr. Justice Eric F. Macklin _______________________________________________________ I.

Introduction [ 1 ] On April 4, 2011 the Appellant, Amy Kehr, was convicted of being in care or control of a motor vehicle while impaired (impaired driving) and being in care or control of a motor vehicle with a blood alcohol level exceeding 80 milligrams of alcohol in 100 millilitres of blood (over 80). The conviction for impaired driving has been conditionally stayed. [ 2 ] The Appellant appeals her convictions on the grounds that the learned trial judge either misapprehended the evidence, or erred in his application of the law relating to the offence of involuntary intoxication to the facts of the case.

The Appellant seeks to have the convictions quashed and verdicts of not guilty entered. [ 3 ] At the outset of the trial, the Appellant admitted that her ability to operate a motor vehicle was impaired by alcohol and that she had consumed alcohol in such quantity that the concentration in her blood exceeded 80 milligrams of alcohol in 100 millilitres of blood. Counsel advised the Court that the Appellant was raising the defence of involuntary intoxication.

II. Background Facts [ 4 ] Cst. Jere Hu of the Edmonton Police Service responded to an impaired driving complaint on December 23, 2009 at approximately 2:06 a.m. at 112 Street and 104 Avenue in Edmonton. On arrival, he was advised that the Appellant had hit another vehicle and had just thrown up. [ 5 ] Cst. Hu noticed a strong odour of alcohol on the Appellant’s breath, glossy eyes and a dishevelled appearance. There was also a large pile of vomit by the driver’s side door. He placed the Appellant under arrest for impaired driving.

Breath samples ultimately indicated that the blood alcohol content of the Appellant was 220. [ 6 ] The Appellant testified that on the date in question, a friend came over to her house and she drove them to the Oil City Road House, a bar on Jasper Avenue in Edmonton. She had to work the next morning at 8:00 a.m. and stated that it was not her intention to get drunk because she had to drive home to Peace River the following day after work. [ 7 ] The Appellant testified that her first drink was a double vodka and coke. She danced with someone for approximately two minutes and then returned to finish her drink.

She then went to the washroom, returned and ordered another drink. She then went for another dance. [ 8 ] The Appellant testified that she had no recollection of how the second dance ended and her memory went blurry after that. She said she had a foggy memory of handcuffs, and a foggy memory of a room with a toilet and a bench in it. She also had a memory of being in her uncle’s car and of being drunk in that car. [ 9 ] The Appellant stated that she only drank two doubles in a period of between one hour and one and a half hour.

She testified that she had drank that much before but had never before experienced such memory loss. She did acknowledge that after two doubles, she would ordinarily not be able to drive though she would not have an impaired memory. [ 10 ] When the Appellant awoke the next morning, she felt very sick but said that it did not feel like a hangover. She stated that she was sick all day, threw up in the afternoon and was exhausted. She made an appointment to see her doctor and have a drug test performed.

The doctor sent her for a urine analysis and she was advised that some drugs will only stay in a person’s system for 6 to 12 hours. [ 11 ] As a result of the incident, the Appellant testified that she has suffered from severe anxiety and has seen a psychiatrist. She was prescribed an anti-anxiety sleep pill. III. Reasons for Decision [ 12 ] In convicting the Appellant, the trial judge gave the following brief reasons: The fact of the matter, unfortunately, is that she did voluntarily consume alcohol which, in her evidence, was sufficient that she would not be driving.

And sometime after 12:20 and approximately 2:00, her alcohol limit is up to 220 when she is tested later on. As much as I believe the accused as being very sorry, and obviously this has been very distressing for her, the mens rea here is satisfied by the voluntary consumption of alcohol, and unfortunately, that she has amnesia afterwards and her behaviour in the cells and in the telephone room at the police station are extremely bizarre, I must find that she is guilty, and I so find. IV. Grounds of Appeal

[13] The Appellant has raised the following grounds of appeal: (

a) The trial judge erred by misapprehending the Appellant’s evidence about whether she knew she was impaired after consumingtwo drinks. (

b) The trial judge erred by not properly applying the test for involuntary intoxication. V. Analysis A. Misapprehension of Evidence 1. Standard of Review [14] A

summary conviction appeal court has the power under s. 686(1)(a) (by virtue of s. 822) of the Criminal Code to allow anappeal against conviction where it is of the opinion that: i. the verdict should be set aside on the ground that it is unreasonable or cannot be supported by the evidence, ii. the judgment of the trial court should be set aside on the ground of a wrong decision on a question of law, or iii. on any ground there was a miscarriage of justice. [15] A misapprehension of evidence may refer to a failure to consider evidence relevant to a material issue, a mistake as to thesubstance of the evidence or a failure to give proper effect to the evidence.

Where it is alleged that the trial judge misapprehended theevidence, an appellate court must first consider the reasonableness of the verdict (s.686(1)(a)(i)). If the verdict is reasonable, then thecourt should determine whether a misapprehension of evidence occasioned a miscarriage of justice (s. 686(1)(a)(iii)).

Where the error isnot one of law alone, the appellant bears the burden of demonstrating that the error did not result in a miscarriage of justice. (R. v.Morrissey (1995), (ON CA), 97 C.C.C. (3d) 193 at paras. 83-89 (Ont.C.A.)). [16] In short, this Court, as an appellate court, may allow an appeal and overturn a conviction if the trial judge misapprehended theevidence and that misapprehension led to an unreasonable verdict or a miscarriage of justice. 2.

Analysis [17] The Appellant argues that the trial judge misapprehended the evidence by finding that the Appellant had consumed enoughalcohol voluntarily such that her ability to drive was impaired by alcohol. [18] In R. v. King, (SCC), [1962] S.C.R. 746, [1962] S.C.J. No. 60, the Supreme Court of Canada confirmed thatmens rea is an essential ingredient for the offence of impaired driving. Once it has been proven that a driver was operating a motorvehicle while his ability to do so was impaired by alcohol, a rebuttable presumption arises that his condition was voluntarily induced.

Hemust then be convicted unless other evidence is adduced which raises a reasonable doubt as to whether he was, through no fault of hisown, disabled from being able to appreciate and know that he was or might become impaired (King at p.14). [19] In her evidence, the Appellant testified that she would not be able to drive after having two doubles but it would not impair her

thought process or memory. She further testified that she was not intending to drive home when she was consuming her second drink and did not feel like she could drive. Indeed, she testified that she would have been over her limit after one drink and that she did voluntarily consume two doubles. [ 20 ] The trial judge found that the Appellant “did voluntarily consume alcohol which, in her evidence, was sufficient that she would not be driving”. It is not evident that there was any misapprehension of the evidence by the trial judge.

It was open for the trial judge to find, on the evidence, that the Appellant did voluntarily consume alcohol sufficient to cause her to be impaired and then undertook to drive. That is, it was open for him to find that her intoxication was not involuntary. [ 21 ] This ground of appeal is dismissed. B. Error of Law 1. Standard of Review [ 22 ] The second ground of appeal is that the trial judge erred in law by not properly applying the test for involuntary intoxication as set out in King . Questions of law are reviewable on a standard of correctness. 2.

Analysis [ 23 ] The Appellant made the admission at the start of the trial that her ability to operate the motor vehicle was impaired by alcohol. She says that the evidence of her behaviour in the presence of the police on her arrest, and her condition the morning following the events, evidenced that she was - through no fault of her own - disabled from being able to appreciate and know that she was impaired and raised a reasonable doubt as to her guilt.

That is, it should have raised a reasonable doubt as to her intention to drive. [ 24 ] The Appellant submits that the trial judge was required to consider whether the Appellant ingested something unintentionally, in addition to the alcohol she voluntarily consumed, that caused the degree of intoxication she exhibited and gave rise to circumstances which put her behind the wheel notwithstanding her intention not to drive. [ 25 ] The trial judge had evidence before him from the investigating officer of bizarre behaviour by the Appellant and evidence from the Appellant about how alcohol would normally affect her memory and how she was feeling the next day.

The Appellant says that the trial judge failed to consider this evidence to determine whether the Appellant had raised a reasonable doubt as to whether she was, in the words of King , through no fault of her own, disabled when she undertook to drive and then drove. [ 26 ] A number of cases have been decided on similar facts where an accused argued a lack of mens rea caused by amnesia ( R. v. Abel , 1999 ABCA 74 , 232 A.R. 186), blackouts ( R. v. McQuarrie , 1998 ABCA 246 , 219 A.R. 74), non insane automatism ( R. v. Talock , 2003 SKCA 69 , [2004] 1 W.W.R. 402), and others.

In each case, it falls upon the trial judge to determine on the basis of the evidence before him or her whether the evidence raised rebutted the presumption that the accused consumed alcohol voluntarily. In each of these cases, a Court of Appeal upheld findings that the presumption was not rebutted. [ 27 ] There was no evidence before the learned trial judge that the Appellant had been secretly fed a drug or additional alcohol. The Appellant claims to have total amnesia as to the events of the night after she consumed her second drink.

She is asking the Court to speculate and find that her actions were involuntary and to further speculate as to what may have caused her condition. The trial judge properly did not do so. [ 28 ] Even accepting that the Appellant was in a state of non insane automatism, there was no evidence as to whether this would result in the Appellant acting involuntarily.

The Court of Appeal in McQuarrie stated that expert evidence is often required in cases such as this to allow a court to draw the conclusion that the state or condition suffered by the accused at the relevant time would cause the accused to act without conscious thought or intention (at para. 19). No such expert evidence was adduced in this case.

[29] The trial judge did not err in law in his

interpretation of King and his application of the facts of the case to the King analysiswas reasonable. He had no reasonable doubt as to the guilt of the Appellant. This ground of appeal is dismissed. [30] Although this disposes of the issues as expressly framed by the Appellant, I would add that the verdict in this case wasreasonable. Application of the law to the facts involves questions of mixed fact and law and is reviewable on a standard ofreasonableness.

In assessing whether a verdict is reasonable, the test to be applied is whether the verdict is one that a properly instructedjury, acting judicially, could reasonably have rendered. It is not enough for the reviewing Court to simply take a different view of theevidence than the trier of fact (R. v. Biniaris, 2000 SCC 15 , [2000] 1 S.C.R. 381). In this case, based on the facts and law setout above, the trial judge’s verdict was not unreasonable and was one that a properly instructed jury could have rendered in thecircumstances. VI. Conclusion [31] The appeal is dismissed. Heard on the 22nd day of September 2011.

Dated at the City of Edmonton, Alberta this 3rd day of October 2011. Eric F. Macklin J.C.Q.B.A. Appearances: Julie Snowdon for the Respondent Harold R. Brubaker for the Appellant