R. v. Gilbert, 2018 NLSC 168

court crest IN THE SUPREME COURT OF NEWFOUNDLAND AND LABRADOR GENERAL DIVISION Citation : R. v. Gilbert , 2018 NLSC 168 Date : August 15, 2018 Docket : 201508G0102 Her Majesty The Queen v. Joshua Gilbert Before: Justice Frances J. Knickle On Appeal From: Decisions of the Provincial Court of Newfoundland and Labrador, File # 1613A00060 dated the 10 th & 11 th day of July, 2014; and the 15 th day of October, 2015. Place of Hearing: Happy Valley-Goose Bay, Newfoundland and Labrador Date of Hearing: October 2, 2017 Appearances: Stephen A. Anstey Appearing on behalf of the Crown Mark J. Gruchy Appearing on behalf of the Appellant Authorities Cited:

CASES CONSIDERED: R. v. Grant, 2009 SCC 32 ; R. v. Cole , 2012 SCC 53 ; R. v. Beaulieu , 2010 SCC 7 ; R. v. Harrison , 2009 SCC 34 ; R. v. Côté , 2011 SCC 46 ; R. v. Newman , 2014 NLCA 48 ; R. v. Greening , 2013 NLTD(G) 42; R. v. Aucoin , 2012 SCC 66 ; R. v. Mejia , 2009 ABPC 310 ; R. v. Ross , 2011 ABPC 135 ; R. v. Haut , 2010 ABPC 2 ; R. v. Frieson , 2010 SKPC; R. v. Lal, 2012 ABQB 358 ; R. v. Lal , 2012 ABQB 646 ; R. v. Boudreau , 2012 ONCA 830 ; R. v. Decker , 2002 NFCA 9 STATUTES CONSIDERED: Canadian Charter of Rights and Freedoms,

Part I of the Constitution Act, 1982 , being

Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11 ; Criminal Code, R.S.C. 1985, c. C-46 REASONS FOR JUDGMENT Knickle, J. : INTRODUCTION [ 1 ] This appeal addresses whether the Trial Judge’s decision to admit evidence under section 24(2) of the Canadian Charter of Rights and Freedoms,

Part I of the Constitution Act, 1982 , being

Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11 (the “ Charter” ) and subsequent conviction of the Appellant of the offence commonly known as “over 80,” should be set aside. The Appellant submits the Trial Judge erred in her analysis under section 24(2) and that these errors were significant. The Appellant also submits there was insufficient evidence as to the time of the operation of the motor vehicle, so there is no proof that his blood alcohol concentration (BAC) exceeded the legal limit at the time he operated the vehicle.

The Appellant asks this Court to overturn the decision to admit the evidence, exclude the evidence, and enter an acquittal. [ 2 ] The Respondent submits that there were no errors made by the Trial Judge and that even if there were factual errors in her findings, they were too minor to warrant any intervention by this Court. The Respondent submits the appeal be dismissed. [ 3 ] For the reasons that follow, the appeal should be allowed and an acquittal entered.

FACTS [ 4 ] Sometime in the late hours of July 15 th or the early morning hours of July 16 th , 2013, while on route in his Dodge Ram pickup truck from Labrador City, the Appellant was in a single motor vehicle accident. He overturned the vehicle about 25 kilometers from Labrador City. At the time, the Appellant was also towing a trailer with a water sports craft (a “Sea-Doo”). [ 5 ] A vehicle came upon the accident scene and the driver of that vehicle, Konrad Colbourne, spoke with the Appellant. Mr. Colbourne testified that he came upon the accident scene about 20 minutes outside Labrador City.

He thought it was around 1:30 or 2:00 a.m., but on cross-examination conceded it could have been as early as 1:00 a.m. Mr. Colbourne then contacted 911. Constable Hayward from the Royal Newfoundland Constabulary was dispatched to the scene at 2:15 a.m. [ 6 ] Once she arrived at 2:32 a.m. Constable Hayward observed the truck on its roof. The lights were on. There were no other vehicles at the scene, however the utility trailer was on top of the overturned truck, and a “Sea-Doo” some distance in the woods.

Constable Hayward approached the vehicle and observed the Appellant who was seated in the passenger side of the vehicle. She spoke to him and he identified himself. When asked, he told her there was no one else to be worried about in relation to the vehicle. He got out of the vehicle and approached Constable Hayward. [ 7 ] Upon speaking to the Appellant, Constable Hayward formed grounds to believe that the Appellant may be committing an offence under

section 253 of the Criminal Code , R.S.C. 1985, c. C-46. She detained the Appellant and made a demand under section 254(3) of the Criminal Code .

When asked what she believed at the time she detained the Appellant, Constable Hayward testified: “That he had gotten into an accident and that he was the only individual in the truck at that time, because he provided to me that no one else was in the area and he was with no one but himself.” [ 8 ] Constable Hayward further testified that the reasons for detaining the Appellant were because of his bloodshot watery eyes, and strong smell of alcohol from his breath, and that he stumbled while he was walking.

She stated that she believed the Appellant had committed the offence of operating a motor vehicle while impaired. [ 9 ] While Constable Hayward did not know when the accident had occurred, she believed the Appellant to be the driver. No one else was in the area, which was a rural area 20 minutes from Labrador City and the vehicle was registered to the Appellant. The keys were also in the ignition and the truck’s engine was running.

She stated she believed that the Appellant was in the care or control of the vehicle at the time she gave the demand. [ 10 ] The dispatch ticket also referred to “the driver appears to be okay.” Constable Hayward testified that the reference to “the driver” in the dispatch ticket also caused her to believe that the Appellant was the driver. [ 11 ] The Appellant was returned to the police detachment where, upon being given the opportunity to retain and instruct counsel, he provided two samples of his breath. The analysis of these samples showed that the Appellant’s BAC exceeded the limit under the Criminal Code .

[ 12 ] The Appellant was released by the officers and summonsed to Court for a later date. He was charged with both the offences of “over 80” and “impaired” operation of a motor vehicle under the Criminal Code . The Decision of the Trial Judge on the Charter Application [ 13 ] There was no dispute that when the Appellant was detained by Constable Hayward, the detention was not in compliance with section 254(3) of the Criminal Code .

At the time of the detention and subsequent demand, the investigating officer lacked knowledge of an essential requirement under section 254(3) : that there were reasonable and probable grounds to believe that the offence was occurring, or had occurred within the preceding three hours. The Trial Judge stated: 103 Herein, however, lies the difficulty. There is absolutely no evidence as to what time Joshua Gilbert was last operating or was in care or control of the Dodge Ram. Looking at the facts as understood by Cst.

Hayward when her belief was formed, we find that she was aware that Konrad Colbourne had referred to the “driver” being fine or okay. However, Mr. Colbourne did not say that he had observed the accident take place; his report simply relayed that there was a truck in the ditch on its’ roof. Based on that evidence, Cst. Hayward could not have formulated reasonable grounds, on an objective basis, to believe that Mr. Gilbert was operating the motor vehicle at the time that the call came in to the Royal Newfoundland Constabulary, or indeed, at any specific time. Cst. Hayward made no attempt to determine from Mr.

Gilbert when he had last been operating or been in care or control of the vehicle. [ 14 ] This invalid demand meant that the subsequent search and seizure of the breath samples was the result of a warrantless search not authorized by law. As a search and seizure not authorized by law, the presumption of unreasonableness of the search and seizure was not overcome. Accordingly, a violation under

section 8 of the Charter followed. [ 15 ] However, after reviewing all the circumstances, and applying R . v. Grant , 2009 SCC 32 , the Trial Judge was satisfied that the admission of the evidence would not tend to bring the administration of justice into disrepute.

The Resumption of the Trial Evidence [ 16 ] Upon admission of the Certificate, the breath sample analysis showed BAC of 180 and 190 milligrams of alcohol per 100 milliliters of blood at 4:32 a.m. and 4:53 a.m., respectively. [ 17 ] The utterances of the Appellant were also admitted: that he had started drinking around 9:30 p.m., that he had stopped drinking approximately one hour before the accident, and that he had left Labrador City to drive to a friend’s cabin in Southwest Arm.

The destination of Southwest Arm was the reason for towing the Sea-Doo, as the friend’s cabin could ultimately be reached only by water. [ 18 ] An expert was then called by the Crown to extrapolate the breath sample analysis taken at the police station back to two time periods, at 2:15 a.m. when Constable Hayward was dispatched to the accident, and 1:00 a.m., the earliest time that Konrad Colbourne came upon the accident. The expert testified that at 2:15 a.m. the Appellant’s BAC would have been between 203 and 226 milligrams per cent. At 1:00 a.m., the BAC would have been between 215 and 250 milligrams per cent.

The expert also testified that earlier than 1:00 a.m. the blood alcohol level would have been higher. However she was not asked to be any more specific regarding how much earlier than 1:00 a.m. the Appellant’s BAC would be “higher.” [ 19 ] On cross examination, the expert testified that it was possible for a person’s BAC to increase rapidly from a legal limit of 80 milligrams per cent to 200, but she would expect in such a situation for the person to exhibit more signs of impairment. [ 20 ] The Appellant did not testify at the hearing of the Charter application nor at the trial proper.

The Decision on Verdict [ 21 ] In a separate judgment, the Trial Judge found the Appellant guilty of operation of the motor vehicle while his BAC was in excess of 80 milligrams per cent contrary to section 253(1) (

b) of the Criminal Code . He was acquitted of the impaired charge contrary to section 253(1) (a). ISSUES 1. Did the learned Trial Judge err in her analysis under section 24(2) of the Charter and admitting the evidence? 2. If the evidence was properly admitted, was it established beyond a reasonable doubt that the Appellant’s BAC exceeded the legal limit at the time he operated the vehicle? ANALYSIS ISSUE 1. Did the learned Trial Judge err in her analysis under section 24(2) of the Charter and admitting the evidence ? [ 22 ]

Section 8 of the Charter states: 8. Everyone has the right to be secure against unreasonable search or seizure.

[ 23 ] Section 24(2) of the Charter states 24.

(2) Where, in proceedings under subsection (1), a court concludes that evidence was obtained in a manner that infringed or denied any rights or freedoms guaranteed by this Charter , the evidence shall be excluded if it is established that, having regard to all the circumstances, the admission of it in the proceedings would bring the administration of justice into disrepute. The Standard of Review of the Trial Judge’s decision under section 24(2) of the Charter [ 24 ] The decision to admit or exclude evidence by a trial judge under section 24(2) of the Charter is discretionary.

An appeal court will show considerable deference to the proper exercise of that discretion. In the absence of an error in law or misapplication of the proper principles, it is not for an appeal court to re-visit the trial judge’s decision to admit or exclude evidence under section 24(2). As stated in Grant at paragraph 86 : 86 In all cases, it is the task of the trial judge to weigh the various indications. No overarching rule governs how the balance is to be struck. Mathematical precision is obviously not possible.

However, the preceding analysis creates a decision tree, albeit more flexible than the Stillman self-incrimination test. We believe this to be required by the words of s. 24(2). We also take comfort in the fact that patterns emerge with respect to particular types of evidence. These patterns serve as guides to judges faced with s. 24(2) applications in future cases. In this way, a measure of certainty is achieved. Where the trial judge has considered the proper factors, appellate courts should accord considerable deference to his or her ultimate determination. [ 25 ] In R. v.

Cole , 2012 SCC 53 , at paragraph 82 , the Supreme Court of Canada re-affirmed the level of deference that is to be accorded a trial judge’s exercise of discretion to admit or exclude evidence under section 24(2): 82 The standard of review is deferential: "Where a trial judge has considered the proper factors and has not made any unreasonable finding, his or her determination is owed considerable deference on appellate review" ( R. c. Côté , 2011 SCC 46 , [2011] 3 S.C.R. 215 (S.C.C.), at para. 44 ).

But where the relevant factors have been overlooked or disregarded, a fresh Grant analysis is both necessary and appropriate.. [ 26 ] See also R. v.

Beaulieu , 2010 SCC 7 , at paragraph 5 . [ 27 ] In assessing whether or not to admit evidence that has been obtained in violation of the Charter , Grant at paragraphs 108 - 110 , established three broad categories that must be considered: − The seriousness of state conduct that resulted in the violation; − The impact of the violation on the accused’s protected Charter rights; and − The society’s interest in having the case adjudicated on its merits. [ 28 ] Although the Notice of Appeal raised several grounds of appeal, at the hearing, the main complaint of the Appellant was that the Trial Judge erred in her analysis of the first criteria under Grant : the seriousness of the state conduct.

The Appellant asserts that the conduct of Constable Hayward was negligent, and that the Trial Judge erred by finding the conduct to be at worst “inadvertent.” I disagree. The Trial Judge’s assessment of the Seriousness of the Breach [ 29 ] There is no dispute that it is central to an authorization under section 254(3) , that the demanding officer must have formed a belief, on a reasonable basis, as to when the commission of the offence occurred.

Section 254(3) states: 254(3) Samples of breath or blood If a peace officer has reasonable grounds to believe that a person is committing, or at any time within the preceding three hours has committed, an offence under

section 253 as a result of the consumption of alcohol, the peace officer may, by demand made as soon as practicable, require the person (

a) to provide, as soon as practicable, (

i) samples of breath that, in a qualified technician's opinion, will enable a proper analysis to be made to determine the concentration, if any, of alcohol in the person's blood, or (ii) if the peace officer has reasonable grounds to believe that, because of their physical condition, the person may be incapable of providing a sample of breath or it would be impracticable to obtain a sample of breath, samples of blood that, in the opinion of the qualified medical practitioner or qualified technician taking the samples, will enable a proper analysis to be made to determine the concentration, if any, of alcohol in the person's blood; and (

b) if necessary, to accompany the peace officer for that purpose.

[Emphasis added] [ 30 ] The failure to have determined when the operation of the vehicle occurred, meant that the criteria under section 254(3) had not been met. [ 31 ] In this case, at the point that Constable Hayward detained the Appellant under section 254(3) , she had no information as to when the driving had occurred.

While she testified to the time of the dispatch reporting the accident, there was no information as to when the accident occurred. [ 32 ] It is clear from Constable Hayward’s testimony she did not pursue investigating the time the accident occurred because her belief, albeit mistaken, was that the Appellant was in the present care or control of the vehicle when she observed him at the accident scene. [ 33 ] In assessing the circumstances, the Trial Judge found Constable Hayward’s evidence to be “straightforward.” The Trial Judge stated that like Konrad Colbourne’s evidence, Constable Hayward was “credible and reliable” (July 2014 Decision of Trial Judge at paras. 34 and 35).

The Trial Judge accepted Constable Hayward’s explanation as to why she was satisfied that the Appellant was in care or control at that time. The Trial Judge found that Constable Hayward, although inexperienced, acted in good faith throughout her dealings with the Appellant. The Trial Judge stated at paragraph 116: 116 As in Vigor and Lal , there is no evidence that Cst. Hayward was negligent, reckless, or particularly, wilfully blind in her dealings with Mr. Gilbert.

Having received a report that a vehicle was off the road and the “driver” was okay, she relied, in part, on that information to form her grounds that Mr. Gilbert had been driving the vehicle at the time of the accident. She also relied on the mistaken belief that Mr. Gilbert was in care or control of the vehicle when she arrived on scene. Cst. Hayward could have made inquiries as to the time of the accident prior to making the demand, but her failure to do so was not more than carelessness.

She was entitled to rely on evidence passed through others and she did so. … [ 34 ] It was open to the Trial Judge to accept Constable Hayward’s evidence. It is not for a reviewing court to interfere with the Trial Judge’s assessment of the credibility of the witness. The Trial Judge was in a superior position to assess Constable Hayward’s testimony; being present and able to observe directly how Constable Hayward responded to what was lengthy questioning.

The cross- examination of Constable Hayward was thorough (comprising 66 pages of transcript on the Charter application). [ 35 ] I see no error by the Trial Judge in finding that Constable Hayward acted in good faith, or that her conduct was not so serious that it militated against the admission of the evidence. This was not a situation where the Trial Judge was troubled by deliberate or willful violations of an accused’s Charter rights. See R. v. Harrison , 2009 SCC 34 at paragraphs 22 - 23 , R. v. Côté , 2011 SCC 46 at paragraph 71 , or R. v. Newman , 2014 NLCA 48 ; and R . v.

Greening , 2013 NLTD(G) 42. [ 36 ] Where an officer acts in good faith and does not deliberately or negligently set out to violate an accused’s Charter right, this will tend to render the state-infringing conduct less serious and militate in favour of the admission of the evidence. See R. v. Aucoin , 2012 SCC 66 , at paragraph 46 ; also for example , R. v. Mejia , 2009 ABPC 310 . [ 37 ] In the cases relied on by the Appellant, in which evidence has been excluded as a result of a deficient demand, the circumstances were more egregious than in the present case.

The trial judges in those circumstances found the conduct of the officers involved significantly wanting regarding the accused’s Charter rights. For example, in R. v. Ross , 2011 ABPC 135 , it is clear not only did the trial judge not accept the officer’s testimony as to his observations of impairment (see para. 45), there was a complete absence of grounds to make a demand under section 254(3) . Likewise, in R. v. Haut , 2010 ABPC 2 , the trial judge found that the officer was reckless, regarding the requirement for the necessary grounds (see also R. v.

Frieson , 2010 SKPC 8 ). [ 38 ] In Harrison the officers were also found to be misleading in their evidence. Again, there were no grounds to even stop the accused in Harrison , much less conduct a search. [ 39 ] However, in the present case, the only issue with the insufficiency as to the demand was the timing of the operation of the motor vehicle. There is no doubt there was information lacking as to the time of the operation but there was probative evidence in relation to the other criteria under section 254(3): that Mr.

Gilbert was the driver of the overturned truck and showed signs of impairment at the time Constable Hayward formed her belief. These facts make the circumstances distinguishable from Harrison, Ross, Friesen and Haut . [ 40 ] Although it was argued at trial that there was also an insufficiency of evidence as to the Appellant being the operator of the vehicle, this was rejected by the Trial Judge.

This was not seriously pursued on appeal and I see no basis to interfere with the Trial Judge’s finding that there were reasonable grounds to believe the Appellant was the driver. [ 41 ] In finding that Constable Hayward acted in good faith and that the breach was, at most, “inadvertence” to support her assessment that the seriousness of the state conduct did not tend toward exclusion of the evidence, the Trial Judge relied on R. v. Lal, 2012 ABQB 358 and 2012 ABQB 646 . In that case, similar to the present case, the officer who formed the belief and gave the demand under

section 254 did not turn her mind as to when the driving or accident had occurred. However, it was clear from other evidence tendered at that trial that at the time the belief was formed, the driving occurred within the requisite three hour timeframe. There was evidence that at least one of the other investigating officers was aware of the time of driving. [ 42 ] Given this, while finding a breach of

section 8, the appellate court in Lal was satisfied that it would have been easily within the officer’s capabilities to have determined when the driving had occurred, if she had turned her mind to the issue. It was also clear that if the officer had so turned her mind, there would have been grounds to make the demand. In the circumstances, the Court found the breach to have been “technical” and no more than mere inadvertence on the part of the officer who did not know.

[ 43 ] The difference in the present circumstances is that there is no evidence whatsoever as to when the accident or driving occurred. Mr. Colbourne came upon the accident scene at the earliest 1:00 a.m. (but more likely 1:30 – 2:00 a.m.), there is no evidence that the accident had happened at 1:00 a.m. The Appellant was already out of his vehicle when observed by Mr. Colbourne. [ 44 ] Constable Hayward was dispatched at 2:15 a.m. She formed her belief shortly after her arrival on the scene at 2:32 a.m. and shortly before her demand and detaining the Appellant at 2:43 a.m.

A period of three hours preceding that point would be 11:43 a.m. There is no evidence that the accident happened within that time period or prior to 11:43 a.m.

If the accident happened prior to 11:43 a.m. there would be absolutely no basis for the demand under section 254(3) . [ 45 ] While I agree with the Trial Judge’s finding that like the situation in Lal , it would have been very easy for Constable Hayward to have determined when the accident happened, unlike the situation in Lal , if she had taken that investigative step, Constable Hayward may have learned that the operation of the vehicle had in fact occurred outside the three-hour time period required by section 254(3) .

There would have been no basis for a demand. [ 46 ] For this reason, I am inclined to agree with the Appellant that the failure to comply with the requirements of section 254(3) are more serious than the very “technical” breach found in Lal .

However, I am not satisfied the conduct was so serious that it reached the level of negligence. [ 47 ] While I disagree with that particular aspect of the Trial Judge’s analysis, keeping in mind the deference owed the Trial Judge on review, particularly as it relates to her finding that Constable Hayward acted in good faith, this difference of opinion is insufficient in my view to set aside the decision to admit the evidence. The Trial Judge’s assessment under section 24(2) was otherwise thorough.

I see no basis to overturn her assessment on the remaining two criteria under Grant . [ 48 ] I would dismiss this ground of appeal. ISSUE 2. If the evidence was properly admitted, was it established beyond a reasonable doubt that the Appellant’s BAC exceeded the legal limit at the time he operated the vehicle? [ 49 ] There being an insufficient basis upon which to set aside the Trial Judge’s decision with respect to section 24(2) of the Charter , I am nonetheless of the view that on review of all the evidence the appeal must be allowed. [ 50 ] In my view, the verdict cannot be supported by the evidence.

There is evidence lacking on an essential element of the offence. Without having more specificity regarding the time period as to when the operation of the vehicle occurred, there is no evidence that the Appellant operated his vehicle while his BAC was in excess of the legal limit. There is no evidence, because it is not known when the Appellant operated the vehicle. [ 51 ] There is no issue with the Trial Judge’s finding that it was the Appellant who operated the vehicle when the accident occurred. This finding is amply supported by the evidence.

There is also no issue that certainly any time after 1:00 a.m., the BAC of the Appellant well exceeded the legal limit. [ 52 ] But being satisfied that the Appellant was the driver, and being satisfied that his BAC limit exceeded the legal limit after 1:00 a.m. does not prove he committed the offence of “over 80.” At 1:00 a.m., the Appellant was neither operating, nor in the care or control of, the vehicle (see for example R. v. Boudreau , 2012 ONCA 830 ; R. v.

Decker , 2002 NFCA 9 ). [ 53 ] However, the Trial Judge seems to have accepted that the accident, and hence the operation of the vehicle, occurred at or near 1:00 a.m. At paragraph 88 of the decision, the Trial Judge stated: 88 Taking into account all the evidence, I am satisfied to accept Hackett’s calculations as being accurate in this case. The Crown has proven beyond a reasonable doubt that Joshua Gilbert’s blood alcohol concentration at 02:15 a.m. and 1:00 a.m. was well above 80 milligrams of alcohol in 100 milliliters of blood. While the exact time of the accident is not known, the evidence of Mr.

Gilbert is that he stopped drinking one hour before the accident. Even if the accident occurred before 1:00, Ms. Hackett’s evidence is that, based on Mr. Gilbert’s evidence, his blood alcohol concentration would have been higher, rather than lower.

I am therefore satisfied beyond a reasonable doubt that, at the time of operation of his Dodge Ram pickup on or about June 16, 2013, Joshua Gilbert had consumed alcohol in such a quantity that the concentration in his blood exceeded eighty milligrams of alcohol in one hundred milliliters of blood. [ 54 ] The Trial Judge is correct that the evidence establishes a BAC well in excess of the legal limit between 1:00 a.m. and 2:15 a.m. But there is absolutely no evidence that the accident, and hence operation of the vehicle occurred at 1:00 a.m. or between that timeframe. [ 55 ] Although Mr.

Colbourne made a passing and vague reference while testifying to the person he saw having seemed “very shaken,” because he had “just” been in an accident, there was no evidence as to what Mr. Colbourne meant by “just,” or how he knew, or if he knew that the accident had “just” occurred. [ 56 ] Based on the evidence before the Court, the accident and operation of the vehicle could have happened any time after 9:30 p.m.

There is almost no evidence of the Appellant’s BAC between 9:30 p.m. and 1:00 a.m. [ 57 ] The only evidence of the Appellant’s BAC prior to 1:00 a.m. is the expert’s statement that the BAC “would have been higher” than it was at 1:00 a.m. However, the expert also testified that it was possible, albeit not likely in her view, that the BAC could have been within the legal limit at some point before 1:00 a.m. and rose quickly to the two hundred level. [ 58 ] In my view, this is insufficient to establish that the BAC content exceeded the legal limit between 9:30 p.m. and 1:00 a.m.

If the BAC was “higher” prior to 1:00 a.m., there is still no evidence “when,” prior to 1:00 a.m., the operation of the motor vehicle occurred.

[ 59 ] In my view, the evidence the BAC “would have been higher” is too vague; without knowing when the Appellant operated the motor vehicle, if he did so prior to 1:00 a.m., to be satisfied beyond a reasonable doubt that the BAC was in excess of the legal limit if the time the vehicle was operated was sometime between 9:30 p.m. and 1:00 a.m. [ 60 ] For this reason, I find that the appeal should be allowed, the conviction set aside and an acquittal entered. CONCLUSION [ 61 ] The Trial Judge committed no error in admitting the evidence under section 24(2) of the Charter .

However, the evidence that the Appellant’s BAC exceed the legal limit at the time he operated the motor vehicle was lacking. An essential element of the offence was not proven. [ 62 ] The appeal is allowed, the conviction is set aside, and an acquittal is entered. _____________________________ Frances J. Knickle Justice