Her Majesty the Queen ) TODD RAMBOW, ) for the Crown - v. –, 2014 MBPC 8

2014 MBPC 8 THE PROVINCIAL COURT OF MANITOBA Flin Flon Centre BETWEEN: Her Majesty the Queen ) TODD RAMBOW, ) for the Crown - and – ) ) GREG BAUMAN, KURT ZIEHLKE ) for the Accused ) ) Judgment delivered: ) February 20, 2014 in The Pas, Manitoba L. ALLEN, P.J. INTRODUCTION [ 1 ] The accused, Kurt Ziehlke, is charged that on February 23, 2011, he committed the offences of impaired driving and operation of a motor vehicle while his blood alcohol level exceeded the legal allowable limit.

It is alleged and conceded by him that on that date, he was driving a motor vehicle and was stopped by police in Flin Flon, Manitoba. [ 2 ] The trial of these charges commenced on May 22, 2012, in Flin Flon. This matter was adjourned to await the Supreme Court of Canada decision in R. v. St-Onge Lamoreux [2012] S.C.C. 57. The trial continued on November 12, 2013, and was completed on December 6, 2013. After a voir dire , the breath analysis certificate was admitted into evidence. Mr.

Ziehlke has challenged the breathalyser readings on the basis that he asserts that he consumed alcohol immediately before driving and as a result, his blood alcohol level at the time of driving was both lower than the tested readings and was at a legally acceptable level. [ 3 ] The accused also asserts that the evidence called by the Crown has not established that on the day in question his operation of his motor vehicle was impaired by alcohol.

EVIDENCE OF THE WITNESSES [ 4 ] At the trial, RCMP Constable Murray Haggerty testified that while on patrol in Flin Flon a few minutes before 1:00 a.m. on February 23, 2011, he and his partner, Constable Jordan Tost, observed a grey Jeep roll through a stop sign. Shortly thereafter, the officers activated the cruiser car’s emergency lights in order to pull over the vehicle. He testified that the emergency lights were on for approximately three to five minutes and that the vehicle did not stop until after the cruiser car’s siren was activated.

At that point the Jeep, driven by Kurt Ziehkle, pulled over into the parking lot of the Ste. Anne Church. The officer testified that upon approaching the vehicle, he “detected the odour of liquor”. (Transcript May 22, 2012, p. 8, line 24). [ 5 ] Further, the officer noted of Mr. Ziehlke that: “He had red eyes, and I detected a consistent odor of liquor, I described it as a moderate odor of liquor. It wasn’t faint, but at the same time, it wasn’t overwhelming...it was noticeable”. (Transcript p. 9, lines 4-11).

[ 6 ] The officer also went on to say that Mr. Ziehlke was “nervous”. (Transcript page 9, line 19). [ 7 ] The officer also testified that the odor of alcohol that he noticed was coming from the accused’s breath. Mr. Ziehlke was asked by the officer if he had been consuming alcohol and he denied that he had. [ 8 ] Constable Haggerty, who testified that he is a certified ASD operator, made an ASD demand to Mr. Ziehlke at 1:03 a.m. [ 9 ] The officer was asked at trial on what basis he formulated the belief that the accused had been drinking alcohol.

He testified that: “The driving evidence of possibly rolling through a stop sign and due to the road conditions in my opinion, he was driving a bit fast for the road conditions, as they were icy, and it took us a considerable amount of time to actually catch up to him. So there was the driving evidence, my approach on the vehicle, detecting the odour of liquor, and Mr. Ziehlke being the only occupant of that vehicle, the red eyes that I detected on the driver and his nervousness. When I asked him to produce a driver’s license and registration, it appeared to fluster him.

And he was, at the time, he couldn’t produce the registration and he wasn’t able to produce it and that seemed, just in my opinion, seemed to be nervous”. (Transcript p. 13, lines 6- 19). [ 10 ] The officer testified that the Ziehlke vehicle had been stopped at approximately 1:00 a.m and the ASD test wherein the accused blew a fail, was given at 1:05 a.m. [ 11 ] The officer further testified that after providing the subject with the requisite cautions he was taken to the police detachment and placed under observation. At that point, Constable Haggerty made a notation that: “There is a constant odour of liquor.

So when I say constant odour of liquor, that is the presence of alcohol that I am smelling, right from where my first initial contact right through to where I am at that time. So 24 minutes later, I am still detecting the odour of liquor. I wrote in there, there is some slurring of words. The more I engaged Mr.

Ziehlke in conversation during the observation period, I was detecting that some of his words, some of his responses, there was some slurred speech” (Transcript p. 18, lines 21-31). [ 12 ] The officer also testified that in preparing an investigative report as to this incident, he noted that the accused’s eyes were red and watery and that he was unsteady on his feet. [ 13 ] The officer also provided information obtained from the accused at the police station wherein the accused admitted that he had had an alcoholic drink, a “strong one” and that it was consumed at about 12:30 a.m.

He also told the officer that he drank it “quick” and “knocked it back”. (Transcript p. 22, line 23). [ 14 ] The officer testified that Mr.

Ziehlke ultimately provided breath samples at 1:53 a.m. of 130 and at 2:15 a.m. of 120. [ 15 ] In concluding his direct testimony, the officer said that: “He was cooperative, and my last note is that it was a constant level of intoxication....my observations from my first contact with him, throughout the process of dealing with him to the time that he was released, I noted constant, consistent signs of intoxication”. (Transcript p. 27, lines 21-28). [ 16 ] Additional testimony at trial came from Constable Haggerty’s partner, Constable Jordan Tost, who was called by the defence. [ 17 ] Constable Tost testified that he saw the Jeep driven by the accused roll through the stop sign at the intersection of Ross Street and 3 rd Avenue.

Constable Tost noted that when he spoke to Mr. Ziehlke while in the vehicle, he smelled alcohol. Constable Tost “found it a little unusual that the vehicle didn’t pull over at the time”. (Transcript p. 55, line 31).

[ 18 ] Constable Christopher Maier was also called by the defence. This officer told the court that he was the breathalyser technician when Kurt Ziehlke provided breath samples. [ 19 ] Constable Maier testified that he smelled a liquor smell coming from the accused at the police detachment. He also says that he noticed a slight slur in Mr.

Ziehlke’s speech and that he had bloodshot eyes. [ 20 ] Further, he noted that he appeared to “walk fine” when moving about in the detachment. [ 21 ] The accused, Kurt Ziehlke, testified that he was at home on the evening of February 22 nd when he received a phone text informing him of a friend’s serious accident. He said that he found this situation to be stressful and accordingly, he poured himself a glass of Crown Royal whiskey. He estimated that the glass contained eight ounces of whiskey and that he drank it in five minutes. He said he did this at approximately 12:30 to 12:35 a.m.

The accused said he then decided to go to a beer vendor in case he wanted to drink beer later. He then left home in his wife’s Jeep and bought beer. He admitted that on his way home he slid through a stop sign. He also said that he noticed the RCMP cruiser as he went through the stop sign and wondered if he would be stopped. Mr. Ziehlke then says he drove home without subsequently noticing the police car with activated lights other than in his “peripheral vision”, or of hearing a siren. He said that he parked in the church parking lot across from his house in case the police did come for him.

He admitted that when the police came to speak with him and asked if he had been drinking, he told them that he had not. [ 22 ] Mr. Ziehlke said that it wasn’t until he was placed in the cruiser that he started to feel the effects of the alcohol he had consumed. [ 23 ] The final witness to provide testimony was Dr.

Archie Kraut, a toxicology expert who was accepted by the court as an expert in the following areas: -The effects of alcohol in the body; -The absorption of alcohol in the body; -Predictions as to blood alcohol levels; and finally, -The effects of alcohol on the ability to operate a motor vehicle. [ 24 ] The court was told that Dr. Kraut has been accepted as an expert witness on many previous occasions in courts across Canada. [ 25 ] Dr.

Kraut told the court that he was relying on information provided to him as to Kurt Ziehlke’s height and weight, as to how much liquor he had consumed, and when the accused said he drank it. He also relied on breathalyser readings of 130 at 1:53 a.m. and 120 at 2:15 a.m. Based on all these details, Dr. Kraut estimated Kurt Ziehlke’s blood alcohol to have been approximately 60 mgms at the time he was stopped by police. [ 26 ] Dr.

Kraut told the court that his opinion is entirely dependent upon information that he has been given and if this information is not accurate, then his factual basis is wrong and his estimates are not valid. [ 27 ] Dr. Kraut testified that the ASD roadside screening device registers an “F” or fail, only if the subject’s blood alcohol reading is 100 mgms or greater. He also stated that the machine has an accuracy tolerance, or plus-minus factor of 10% or 10 mgms. Dr.

Kraut accepted that this means that Kurt Ziehlke’s blood alcohol must have been at least 100 mgms (plus or minus 10%) at the time of ASD testing as long as the ASD was working properly. [ 28 ] Dr. Kraut also testified that the maximum blood alcohol reading Kurt Ziehlke could have reached having consumed alcohol in the manner he testified to would be 100 mgms, but that the plus-minus on this estimate is 20%. [ 29 ] Dr. Kraut agreed that if Kurt Ziehlke consumed only eight ounces of Crown Royal, this amount could not have produced a

blood alcohol level of 130 mgms. [ 30 ] Dr. Kraut also stated that his estimates would not be accurate if the drinking pattern was different than that stated by Mr. Ziehlke. He also said that food consumption is one of the factors in alcohol absorption and that he was unaware as to whether Mr. Ziehlke had eaten at the relevant time. [ 31 ] Dr. Kraut said that if the accused had consumed 9 ½ ounces of alcohol at the time indicated, then that would be consistent with the 130 reading and that would change his estimate to 70 mgms at the time of driving. [ 32 ] Dr.

Kraut also acknowledged that the timing of the drinking is critical to his estimates. POSITIONS OF THE PARTIES: Defence position on the Impaired Driving Charge: [ 33 ] Defence maintains that the Crown has not provided the court with sufficient evidence to convict Mr. Ziehlke of Impaired Driving. Defence argues that the only driving evidence is that Mr. Ziehlke slid through a stop sign on an icy road and that he may have been driving a bit fast for the conditions. Defence position on the charge of driving with more than the legal allowable limit of alcohol in his blood: [ 34 ] Counsel for Mr.

Ziehlke focused on the presumption in section 258(1)(d.1) of the Criminal Code . The presumption states: “(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) or (

d) under the conditions described in that paragraph and the results of the analyses show a concentration of alcohol in blooding exceeding 80 mg of alcohol 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 the time 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 the offence 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 the sample or samples were taken”. [ 35 ] Counsel argued that to rebut the above presumption the accused must establish both that his blood alcohol at the time of driving was under the legal limit and that the accused’s blood alcohol was consistent with the breath test results. Further, he argued that the testimony of his client and Dr. Kraut provided evidence which met both these criteria. [ 36 ] Counsel argued that the longer the officers dealt with Mr.

Ziehlke, the greater were the symptoms he demonstrated of consumption of alcohol. [ 37 ] Defence also argued that the answers provided by Mr. Ziehlke at the detachment to questions about drinking were consistent with his testimony in court. He pointed out that his client said that he had one drink of whiskey and that it was a strong drink, “knocked back”. [ 38 ] Defence argues that the proper test the court must apply in determining whether the bolus drinking is accepted is a test on a balance of probabilities.

Crown Position Regarding the Over.08 Charge: [ 39 ] The Crown directed the Courts attention to paragraph 94 of the R. v. St-Onge Case (Supra) , which says: “Section 258(1)(d.1) places an evidentiary burden on the accused.

Since the effect of the presumption is that the prosecution need not prove that the consumption pattern of the accused is irrelevant to the reliability of the test results, the onus is on the accused to prove its relevance in order to ensure that those results do not stand as proof of his or her blood alcohol level at the time of the offence”. (para 94). [ 40 ] Crown counsel argued that in order to establish a bolus drinking defence, the accused has to show a factual underpinning to the behaviour claimed.

He also argues that part of that determination must be an examination of the accused’s credibility. [ 41 ] The Crown additionally argued that any estimates of blood alcohol made by Dr. Kraut were made based upon information provided by the accused. If the information is either wrong or inaccurate, then the estimate is of no value. [ 42 ] Crown counsel argued that in order to estimate blood alcohol the expert had to know, amongst other information, what potency of alcohol was consumed. In this case, the accused testified he drank Crown Royal whiskey. Dr.

Kraut testified that some Crown Royal has a 40% proof alcohol content and some is 50% proof alcohol content. The Crown argued that Dr. Kraut relied on the 40% figure, but that without knowing definitely which Crown Royal was consumed, the ultimate estimate is flawed. [ 43 ] The Crown also argued that the factual information provided to Dr. Kraut was only an estimate as to the amount of alcohol consumed. The Crown argued that his information was too uncertain to provide a satisfactory factual foundation for the expert’s opinion. [ 44 ] The Crown also pointed to Dr.

Kraut’s testimony wherein the expert said that the maximum blood alcohol achievable by the accused from drinking eight ounces of whiskey was 100 mgm and that this finding is not consistent with the breath readings. The Crown further argued that this proves that the accused was wrong as to how much alcohol he drank. [ 45 ] Accordingly, the Crown argued that the accused’s bolus drinking defence should be rejected based on the inconsistency of Dr. Kraut’s evidence with the breath readings. Further, the Crown argues that the bolus drinking explanation offered by Mr.

Ziehlke should be rejected after a credibility analysis of Mr. Ziehlke’s testimony. Crown Argument Regarding the Charge of Impaired Driving: [ 46 ] The Crown cited the accused’s driving as evidence of impairment.

Most particularly, the fact that the accused was seen by the attending officers to slide through a stop sign, travel at a speed in excess of what was appropriate for the icy conditions and failing to stop for police despite evidence that they had their emergency lights on and were behind him for somewhere between three to five minutes. [ 47 ] The Crown argued that these facts, as well as other evidence adduced at trial, established that Mr. Ziehlke was driving while impaired by alcohol. DRIVE IMPAIRED/THE LAW [ 48 ] The accused is charged under section 253(1) (

a) of the Criminal Code of Canada . [ 49 ] The issue on this charge is whether there is sufficient evidence to prove beyond a reasonable doubt that Mr. Zeihlke’s ability to drive on the night in question was impaired by alcohol.

[50] It is generally considered that impairment of one’s ability to drive means an alteration in one’s physical ability. Any degree ofimpairment from slight to great is sufficient to make out this element of the offence as established in R. v. Stellato (1993) (ON CA), 78C.C.C (3d)380. The Stellato case was later modified by R. v. Andrews 1996 ABCA 23 , [1996] AJ No. 8,which emphasized that it is one’s ability to operate a motor vehicle which must be impaired, not just a general deviation of the accused’sconduct from the norm. [51] The 1997 Saskatchewan case of R. v. Landes (SK KB), [1997] S.J.

No 785 discussed the mechanism ofdetermining impairment: “16. An opinion as to impairment, be it by the trial judge or a non-expert, must meet an objective standard of ‘an ordinary citizen’ or a‘reasonable person’ in order to avoid the uncertainties associated with subjective standards, particularly when based on inferences. Tothat end a list of tests and observations has been developed for use by peace officers and courts in determining whether an accused’smental faculties and physical motor skills were impaired by alcohol to the degree of impairing the accused’s ability to drive a motorvehicle.

Those observations and tests include: (1) evidence of improper or abnormal driving by the accused; (2) presence of bloodshotor watery eyes; (3) presence of a flushed face; (4) odour of an alcohol beverage; (5) slurred speech; (6) lack of coordination and inabilityto perform physical tests; (7) lack of comprehension; and (8) inappropriate behaviour. 17.

In my view, a trial judge must carefully review all of the reported tests and observations which inferentially support or negate anyimpairment of the accused’s mental and physical capabilities, and then be satisfied beyond a reasonable doubt that the reasonableinferences to be drawn therefrom establish that the accused’s ability was impaired to the degree prescribed by ss. 253 and 255 of theCriminal Code. A piecemeal approach supporting or negating impairment is not permissible. See R. v.

Hall at p. 66.” [52] Justice Joseph Kenkel in his book “Impaired ‘Driving in Canada” (2012/2013 edition) sets out that: “An inference that the accused’s ability to drive is impaired may reasonably be drawn from conduct that exhibits a departure from thenorm...any inferences must be reasonable.

In every case, the Crown must show that considering all the evidence heard there can be noother reasonable conclusion than that the accused’s ability to drive was impaired by alcohol or drugs as alleged.” (p. 18) ANALYSIS [53] The accused says that he rapidly consumed a quantity of alcohol just before driving and as such, he was neither impaired norover the legally allowed blood alcohol limit at the time of driving. This is known as the “last drink” or “bolus drinking” defence.

In thiscase, the evidence of bolus drinking is presented in reference to avoiding the second presumption of identity which is set out in theCriminal Code in reference to breathalyser readings. The accused did not contest the accuracy of the breathalyser readings. [54] As stated earlier, this case was delayed awaiting word from the Supreme Court of Canada as to that Court’s expectedclarification of the second presumption of identity. This came in the form of the decision in R. v. St-Onge. Justice Deschamps, speakingfor the court, said at paragraphs 82-84: “82.

To facilitate a discussion on the amendments that affect the second presumption of identity, thispresumption of identity must be clearly distinguished from the first one. The first presumptionof identity which is established in s. 258 (1)(c), allows the prosecution to use the test results as a substituted fact in order to prove an essential element of the offence, namely the blood alcohol level of the accused at the timewhen the offence was alleged to have been committed.

If the accused argues that theresults do not correspond to his or her blood alcohol level at the time of the offence on the basis that the instrument was malfunctioning or was operated improperly, the evidence the accused can adduce will be limited bys. 258(1)(

c) and s. 258(1)(d.1) Cr.C. 83. If the accused does not challenge the functioning of the instrument, but instead argues that,contrary to the results, his or her blood alcohol level at the time when the offence was alleged tohave been committed did not exceed .08 and that the results were distorted by the fact that he or she hadconsumed alcohol shortly before or after the alleged offence, the evidence the accused can tender torebut the presumption is circumscribed by s. 258(1)(d.1) Cr.C.

The type of consumption that can be used to rebut the second presumption was explained as follows by Rob Moore during the debate thatpreceded the enactment of Bill C-32 (House of Commons Debates, at p. 6186): ‘This could happen if, for example, the person downed several drinks and was arrestedbefore the alcohol was absorbed. It could also occur that after driving, but beforetesting, the person consumed alcohol and it was absorbed by the time the approved instrument test was taken.’ 84. As a result of the statutory amendments, evidence to the contrary adduced by the accused musttend to show two facts:

1) The consumption of alcohol of the accused was consistent with a blood alcohol level that did not exceed .08 at the time when the offence was alleged to have been committed; and 2) The consumption of alcohol of the accused was consistent with the test results.” [ 55 ] The responsibility for the defence to provide relevant evidence as to the second presumption is set out in paragraph 90 of the St- Onge decision: “In my opinion , s. 258(1) (d.1) Cr.C . also satisfies the minimal impairment test.

Whereas requiring the accused to show a connection between a malfunction of the instrument and the determination that his or her blood alcohol level exceeded .08 imposes an undue burden on the accused, the same is not true of requiring the accused to show that his or her consumption of alcohol shortly before or after the alleged offence was consistent with a blood alcohol level that did not exceed .08 at the time of the alleged offence. In such situations, the accused does not challenge the test results, but invokes his or her own unusual behaviour.

It is the accused – and not the prosecution – who knows when he or she drank, and how much. What is more, it is also the accused – and not the prosecution – who would decide to analyze his or her capacity to absorb and eliminate alcohol, and to adduce evidence in this regard.

I do not therefore consider it unduly onerous to require the person who has this information and is in a position to tender relevant evidence to show not only that he or she had a ‘last drink’, or drank after being pulled over, but also that the difference resulting from that consumption is relevant to the determination of his or her guilt or innocence.

I should also note that the cases in which such a defence is raised should be rare, and that such a case would denote either significant irresponsibility with regard to public safety or a pathological reaction by the accused”. [ 56 ] Further, in paragraph 94, St-Onge says: “The presumption is based on the usual behaviour of drivers, who do not generally drink a sufficient quantity of alcohol to alter the results either just before or just after being pulled over by the police.

It is in fact the exceptional behaviour of the accused, not the statutory presumption in the prosecutor’s favour under s. 258(1) (d.1) that makes it necessary for the accused to testify”. [ 57 ] A final piece of guidance on this issue from the St-Onge case is found at paragraph 95: “...the court may make a deduction, based on common sense, that a person will not generally ingest large quantities of alcohol immediately before driving or while driving or after being pulled over by the police”. [ 58 ] To meet the requirements of section 258(1) (d.1) ) of the Criminal Code as to the second presumption of identity, the accused called evidence to establish both that his alcohol consumption was consistent with a blood alcohol which did not exceed .08 at the time of driving and that his consumption was consistent with the breath test results. [ 59 ] His explanation as to alcohol consumption is also relevant to his defence on the impaired driving charge as he argues that his bolus drinking did not leave him impaired while he was driving.

He argues that because the alcohol affected him only after entering the police cruiser car, only indicia from his actual driving or contemporaneous to driving should be considered. [ 60 ] What follows is a review of his evidence in this regard. The Bolus Defence [ 61 ] Kurt Zeihlke testified that he consumed approximately eight ounces of Crown Royal whiskey just before driving. He explained the events of that evening as follows: -He was at home asleep on the night of February 22, 2011, when he received word that a friend had been hospitalized in Brandon.

He said that he found this stressful and consequently went to his garage and consumed eight ounces of unmixed Crown Royal between 12:30 and 12:35 a.m. -He said that other than that his eyes watered, he did not feel immediately affected by the alcohol. He then decided to go to a beer store to purchase beer

-He said that after purchasing beer, he drove home. At some point approximately one-half way down Sipple Hill on Ross Street in Flin Flon, his wheels started sliding and he slid “a bit” through the stop sign. He says that he noticed the police as he went through the stop sign. He then drove home, but because he thought the police may be coming for him, rather than parking in his driveway where he had come from, he parked in the church parking lot across the street -Mr.

Ziehlke said that when the police arrived, they asked him if he had been drinking and he said that he had not -He testified that he did not feel the effects of the alcohol he had consumed until he was in the police vehicle. When asked as to how he knew he consumed eight ounces of alcohol, he said that he had the drink from a beer mug and the amount he drank was about the same as a beer.

He also said that there were decorative markings on the glass from which he later measured to obtain his estimate of eight ounces. [ 62 ] If the accused’s evidence is accepted, then he may not have been impaired while driving, even though he may have been impaired when he was detained at the detachment. Any symptomology of impairment revealed at the detachment would be attributable to rising blood alcohol and not properly considered as to the driving while impaired charge. [ 63 ] In arguing in support of Mr. Ziehlke’s defence, counsel argued that the longer the officers dealt with Mr.

Ziehlke, the more he demonstrated symptoms of consumption of alcohol. The evidence cited to support this contention is the testimony of Constable Haggerty, who said: “I wrote in there, there was some slurring of words. The more I engaged Mr. Ziehlke in conversation during the observation period, I was detecting that some of his words, some of responses, there were some slurred speech.” [ 64 ] Defence counsel suggests that this reflects his client’s growing intoxication. Alternatively, it seems to me that this is a factor of the duration of the conversation.

As the conversation extended, the slurring became more obvious. [ 65 ] Additionally, defence argues that the following interaction with Constable Haggerty reflects more intoxication indicia emerging. “Q. Would you agree with me, at the time you were speaking to him while he was still in his vehicle that there was no slurring detected in his speech. It was only after you got him into the police cruiser you make those notations.” “A.

That’s right, yeah, not at the time I was talking to him in the vehicle, his speech I don’t have it noted he was slurring”. (p. 32, lines 31-40). [ 66 ] This observation would appear to bolster the possible explanation of increasing intoxication, but there is very little else which corroborates this contention. [ 67 ] Defence also argues that the fact that Mr. Ziehlke told police at the detachment that he had one strong drink of whiskey “knocked back” is consistent with his testimony and this is supportive of a credibility finding in his favour. [ 68 ] I find it hard to imagine how Mr.

Ziehlke’s originally lying to police does not to some extent impinge his credibility. The police asked him if he had been drinking and he replied that he had not. At trial, while acknowledging that this answer was untrue, his explanation was he did this because he was concerned about his friend and he did not want trouble with the police. To some extent this explanation is inconsistent with his trial testimony wherein he said that at the time of driving, he did not feel drunk, did not feel the effects of the alcohol, did not consider himself impaired and did not feel that he had done anything wrong.

If that is the situation, why not be forthright with the officers? [ 69 ] Mr. Ziehlke told the court that he received upsetting news about a friend in Brandon. As a result, without waking his wife, who he acknowledged was also a friend of the person in Brandon, he went to his garage and poured himself a beer mug full of whiskey, unmixed, and drank it in five minutes. This despite describing himself as being a beer drinker who rarely drank hard liquor. He then decided to go out and purchase beer in case he might want to drink it later on.

He did this despite acknowledging that he was contemplating driving to Brandon in the morning to attend his injured friend. [ 70 ] After being taken to the police station, the accused told police he had one drink before driving and it was a “strong one”. The Crown argues, and I agree, that a “strong one” would generally suggest a two or three ounce serving of whiskey, not eight ounces. Consumption of eight ounces of whiskey would be more accurately described as a “glass of whiskey”. To tell police he had a strong

drink and later say that means eight ounces, in my opinion once again is not being consistent. [ 71 ] The accused testified that he drank the hard liquor despite not normally doing so, because he felt “distraught” at the news of his friend’s accident. Additionally, he described himself as so distraught that he was “breaking down and crying”. I find it hard to imagine that someone that upset would be likely to note with any degree of care just exactly how much alcohol he served himself. [ 72 ] Further, Mr. Ziehlke told police at the detachment that he “knocked back” the drink.

In my opinion, that is not consistent with his testimony in court that he consumed the liquor over a five minute period. [ 73 ] When cross examined by Crown counsel as to how he knew what time he had finished drinking the whiskey, the accused replied: “I had the drink. I put the cup down. I look at the phone. She still hasn’t responded to me yet. I say to myself that this could be a very long night that I’m in for. Maybe I might like to have some beer. And I open up my, there’s a beer fridge out there, and I open it up and there’s none in there. I look at the clock. Is the store still open? I have time.

I should go get some.” [ 74 ] This statement is inconsistent with his testimony that he drank the whiskey because there was no beer available in that it was only after he drank the whiskey that he checked the beer fridge in the garage. This answer also appears to contradict his earlier testimony wherein he stated that he “knew there was no beer in the house”. [ 75 ] When questioned at trial as to why he had not stopped for the police, the accused said that he had noticed the emergency lights on the cruiser car in his “peripheral” vision. This response does not appear reasonable.

It seems to me that a driver in these circumstances either notices the lights or he does not. Further, if he noticed them at all one would expect that the driver would pull over, particularly if as in this case the driver was already aware that he had gone through a stop sign, had noticed the proximity of police at that point and wondered if they would stop him.

This is also inconsistent with his stated purpose of parking in the church parking lot because he thought there was a possibility the police would be pulling him over. [ 76 ] When he was arrested and asked to produce his vehicle registration, it was noted by the police officers that he seemed flustered and was unable to produce the vehicle registration documents. Mr. Ziehlke tried to explain his difficulties in this regard by testifying that the Jeep was normally driven by his wife and he and she disagreed as to where to keep the registration document. This explanation does not explain either why Mr.

Ziehlke should be frustrated about this in that presumably the document is either in one place or it is in another, nor does it explain why he was unable to produce the document at all. [ 77 ] The accused testified that at the time when he slid through the stop sign on Sipple Hill, he wondered if police would pull him over.

He also testified that at the point where he finally parked, he was still wondering whether the police were coming for him. [ 78 ] Under these circumstances, I find it incredible that he could drive for three to five minutes through the streets of Flin Flon followed by a cruiser car with emergency lights activated, and not notice that police car except in his peripheral vision. [ 79 ] Mr. Ziehlke testified that after purchasing beer on the night in question, he parked in the church parking lot across from his house rather than in his driveway. He said he did this in case the police were coming for him.

This explanation made little sense and in my opinion did not convey a ring of truth. [ 80 ] It is also notable that Constable Haggerty, who appeared to have been the officer most involved with the accused, said the following: “I have indicated that he was cooperative. In my very last note, is that it was a constant level of intoxication. So, my observations of Mr.

Ziehlke, what that means is when I say constant level of intoxication, that means my observations from my first contact with him throughout the process of dealing with him to the time he was released, I noted constant, consistent signs of intoxication”. (Transcript p. 30, lines 9-18). [ 81 ] This observation is clearly contra indicative of a rising blood alcohol level. [ 82 ] It is my opinion that throughout portions of the accused’s testimony, his answers appeared to vacillate from one explanation to

another. For example, while being questioned by the Crown as to whether he was aware that the police car was behind him, he indicated that he was not. However when later questioned by the Crown as to why he parked in the church parking lot as opposed to his own driveway, he offered the explanation that he did that because he thought the police might be coming to pull him over. At one point his answers in this regard and in other regards, implied one thing and at other points, they implied something else. It was my observation that Mr.

Ziehlke appeared to modify his answers to throw what he believed to be the best light on his situation. I was not impressed with his testimony and did not feel that it was a forthright response to questioning. [ 83 ] For all of the above reasons, I do not find the accused’s explanation as to what transpired before driving on the night in question to be credible. [ 84 ] The accused’s version of events is not supported by substantial evidence, other than the suggestion that one officer did not note slurred speech while the accused was in his own car, but did note it when he was in the cruiser car.

There is very little other evidence to support the contention that the accused’s blood alcohol was rising throughout his involvement with police officers. I find his explanation for drinking a substantial amount of whiskey before driving implausible. I also find that his assertion that he only experienced the effects of the alcohol in his system after arrest is not supported by the facts. [ 85 ] Defence argued that there were inconsistencies in the testimony of the two officers.

I find that any inconsistencies were minor and understandable when measuring one witness’ impressions against another’s, particularly in light of the passage of a significant amount of time. [ 86 ] For all of the reasons cited above, I do not find the accused’s evidence to be believable. [ 87 ] In this case the “evidence to the contrary” to rebut this second presumption of identity is offered both by the accused himself and by the witness, Dr. Archie Kraut. [ 88 ] Although as indicated above, I have not found the accused’s testimony to be credible, I nevertheless must assess the evidence of Dr.

Kraut as to whether that evidence meets the criteria of section 258(1) (d.1) as qualifying evidence to the contrary. For a number of reasons, I find the evidence of Dr. Kraut insufficient on its own to meet the criteria of this section. [ 89 ] Dr. Kraut told the court that whatever estimate he provided as to Kurt Ziehlke’s blood alcohol level at the time of driving was entirely dependent on the information provided by the accused. Not only was the quantity of alcohol consumed a significant factor, but so was the speed with which it was taken in and the time when the alcohol was drunk by him.

This is a particular concern in this case because this calculation is dependent on the accused’s recollection as to how much alcohol he allegedly poured into an uncalibrated glass. Arguably, when people pour themselves a beverage at any time, but particularly late at night, after sleeping and while under stress, they do not note just how much they poured. It is also arguable that under these circumstances most people are not normally aware of just exactly when the drink was consumed.

As an expert’s testimony is only as accurate as the information relied upon, it is difficult to be confident of this testimony when the accused is really only estimating his consumption details. [ 90 ] Additionally, Dr. Kraut, relying on the accused’s assertion that he drank only eight ounces of whiskey, maintains that the accused could not at any point have had more than 100 mL of alcohol in his blood. This finding is inconsistent with a breathalyser reading of 130 and was recognised as such by Dr.

Kraut who stated that to be reconciled it must mean that the accused drank more than he said. [ 91 ] When asked to calculate what the accused’s blood alcohol would have been if he had nine ounces rather than eight ounces, Dr. Kraut said that estimate as to blood alcohol would then be 50 mgms. When it was pointed out to him that this was 10 mgms lower than his estimate as to eight ounces, he suggested that was nevertheless reasonable. When pressed on this point, he then re-calculated and said the figure was 70 mgms. [ 92 ] At another point in his testimony, Dr. Kraut said that if Mr.

Ziehlke had actually consumed 9 ½ ounces of 40 proof alcohol at 12:30 a.m., then that amount would be consistent with his breathalyser reading of 130, which was taken at 1:53 a.m. This amount if drunk at 12:30 a.m., he calculated, would have produced a blood alcohol of 70 at the time of driving. [ 93 ] While this figure and consumption (9 ½ ounces) is consistent with the breathalyser reading, it is not consistent with what Mr. Ziehlke testified to as to his consumption. This discrepancy, in my opinion, is further evidence of the inexact, speculative nature of the information provided to Dr. Kraut.

[94] Dr. Kraut testified that every individual absorbs alcohol at a rate that is individual to that person. His calculations utilize ageneralized formula based on his determination as to an average alcohol absorption rate. He did accept that his calculations as to theamount of alcohol absorbed by the accused in this situation would have been more accurate if he had tested Mr. Ziehlke for his specificalcohol absorption capacity. This was not done and is one of several factors which contributed in my mind to the speculative nature ofhis testimony. [95] In

summary, I did not find Dr. Kraut’s estimation of the accused’s blood alcohol level at the time of driving to be consistentwith the unchallenged breathalyser readings. Accordingly, even aside from any credibility finding as to the accused’s testimony, I didnot find that the expert’s evidence met the criteria required in section 258(1)(d.1) showing consumption of alcohol consistent with bothsubsection (

i) and (ii) of that section. [96] Despite the relatively recent amendments to the Criminal Code limiting evidence to the contrary, what remains in section258(1)(d.1) is still described as “evidence to the contrary”. I note paragraph 84 of the St-Onge decision which says: “As a result of the statutory amendments, evidence to the contrary must show two facts”. This passage then goes on to set out the two criteria from section 258(1)(d.1). [97] As stated in R. v. Boucher 2005 SCC 72 , [2005] S.C.J.

No. 73 at paragraph 28: “If the trier of fact does not believe the evidence tendered as evidence to the contrary then in theabsence of any other evidence, the statutory presumption applies”. [98] As stated earlier, I do not accept the evidence to the contrary provided in this case, and therefore find that the statutoryassumption applies. Accordingly, I find Kurt Ziehlke guilty of driving with more than the legal allowable limit of alcohol in his blood. ANALYSIS OF DRIVE IMPAIRED CHARGE [99] Turning now to the charge of Impaired Driving, section 253(1)(a). The evidence from police is that Mr.

Ziehlke’s vehiclerolled through a stop sign at a speed inconsistent with the icy conditions in existence on the night in question. Additionally, ConstableHaggerty said “he was driving at a fast speed. Due to the icy road conditions he was, it was my opinion that he was driving too fast”.(Transcript p. 32, lines 17-19). [100] Constable Haggerty also testified that he activated his police warning lights for between three to five minutes without the accusedstopping his vehicle. It was only after the cruiser car siren was engaged that the Ziehlke car pulled over, and as Mr.

Ziehlke’s evidenceindicated, this was his eventual terminus in any event. Police also indicated that they immediately detected an odour of alcohol from thevehicle. The officer, on interviewing the accused, testified that the odour of alcohol appeared to be coming from his breath. He alsotestified that an examination of the contents of the vehicle did not reveal any open liquor. The officer also noted that the accusedappeared nervous, was flustered and unable to produce his vehicle registration.

The accused explained his being “flustered” by sayingthat he and his wife have different ideas about where to store the registration in the vehicle. She puts it in one spot, while he puts it inanother. It seems to me that this matter should not have resulted in confusion or frustration on his part, as clearly the registration was inone of two spots. [101] Constable Haggerty also testified that he noticed Kurt Ziehlke had red eyes. Mr. Ziehlke in his testimony stated that he did notfeel the effects of the alcohol he consumed until after he was seated in the police cruiser car.

He said that the only immediate impact hefelt from the rapid consumption of whiskey was that his eyes were affected. It seems to me that if Mr. Ziehlke’s eyes were immediatelyimpacted by the drink that he “knocked back”, then this is an indication that the alcohol was very quickly having some physical affect. Itis also consistent with the observations made by police that his eyes were red and watery. [102] Officer Haggerty also said that when he interviewed the accused at the detachment, he noticed slurred speech. “The more I engaged Mr.

Ziehlke in conversation during the observation period, I was detecting that some of his words, some responses,there was some slurred speech” (Transcript p. 18, lines 27-30). [103] The officer also noted that he had observed the subject’s eyes to be watery at the station and he was “somewhat unsteady”. “This is something I would have observed when he was walking, obviously. So, it would have been, probably, well it would have been

from the, from his vehicle to the police vehicle, as well as from when he walked from the police vehicle in the detachment to where weconducted the observation period” (Transcript p. 21, lines 5-10). [104] Constable Haggerty was asked about his observation as to the accused “noticeably slurring his speech”. He was asked whetherhe could put a time frame to that observation. His reply was: “this was a general observation” (Transcript p. 2, line 28). [105] As set out earlier, the Supreme Court decisions in R. v. Stellato and R. v.

Andrews require that the Crown’s case establish morethan a minimal level of impairment to operate a motor vehicle. In this case, there is physical evidence of Mr. Ziehlke’s condition as tored watery eyes, a smell of alcohol from his breath, some level of unsteadiness and some slurring of speech. Additionally, there isevidence to suggest that his having consumed alcohol impaired his judgment and ability to drive.

Evidence in this regard includes hissliding through a stop sign, driving too fast for icy conditions, failing to stop for the police cruiser car with lights activated for three tofive minutes, and choosing to park in a church parking lot rather than in his own driveway for no rational reason. [106] In my opinion, for an operator of a motor vehicle, at night, to not notice a police car behind it with flashing lights activated forsomewhere between three to five minutes, is a marked departure from the normal reactions and conduct of a driver. I recognise that atsome points the police were a distance behind Mr.

Ziehlke, but the relevant streets in Flin Flon are relatively confined and the officerstestified that they were out of sight of the accused only briefly on two occasions.

They also testified that they had difficulty catching upto the accused because they were reluctant to accelerate to the speed that he was driving given the icy road conditions. [107] All of these driving behaviours speak to impairment of ability to drive. [108] The test for the trier of fact “is to determine on the basis of what is almost always a constellation of circumstantial evidence,whether the inference of an alcohol induced impaired ability to drive is satisfied beyond a reasonable doubt”, R. v. Selvarajah, 2011ONCJ 468 , 2011 O.N.C.J., 468 at paragraph 17.

This was also said in Andrews (Supra) at paragraph 25: “The question is simply whether the totality of the accused’s conduct and condition can lead to aconclusion other than that his or her ability is impaired to some degree”. [109] I am satisfied that the constellation of circumstances in this case including the accused’s conduct and condition, provide aninference that his ability to drive a motor vehicle was impaired by his consumption of alcohol, and that the Crown has met it’srequirement to prove beyond a reasonable doubt that at the time in question, Kurt Ziehlke’s ability to drive was impaired. [110] Having convicted Kurt Ziehlke on both count 1 under section 253(1)(

a) of the Criminal Code of Canada and count 2 underSection 253(1)(

b) of the Criminal Code of Canada, I will enter a judicial Stay of Proceedings on count 1 under the principles ofsentencing as set out in R. v. Kienapple (SCC), [1975] 1 S.C.R. 729(1974). “ORIGINAL SIGNED BY:” L. ALLEN, P.J.