) ) HER MAJESTY THE QUEEN ) J. Barclay ) for the Crown. - v. - ), 2011 MBPC 15

2011 MBPC15 THE PROVINCIAL COURT OF MANITOBA DAUPHIN CENTRE BETWEEN: ) ) HER MAJESTY THE QUEEN ) J. Barclay ) for the Crown. - and - ) ) JASON JAMES SHOEMAKER, ) D. Kreklewich ) for the Accused. Accused. ) ) Oral Judgment Delivered: ) February 24, 2011 HARAPIAK, P.J. [1] Early in the morning of December 21st, 2008 an RCMP officer was traveling from his detachment in Roblin to Grandview, Manitoba, to help patrol after asocial.

As he neared Grandview he saw two snowmobiles speeding past him in the ditch near the highway. [2] Shortly after seeing the two snowmobiles the officer arrived in Grandview, stopped to speak to a colleague, and then saw two men on snowmobiles pull intotown and stop at the railway crossing at 12:38 a.m. He assumed, but was not certain they were the same two he'd seen earlier. Jason Shoemaker was one of thosemen. Mr. Shoemaker, upon approach and demand by the RCMP officer, clad in full skidoo suit and visor, blew a fail on the roadside approved screening device. [3] Mr.

Shoemaker was charged with impaired driving and driving over .08 at the scene. After hearing submissions on the impaired driving charge I dismissed itwith brief reasons which will be expanded upon below. [4] It wasn't until more than 2 hours after driving that Mr. Shoemaker successfully provided a breath sample. The officer testified the accused had no alcohol todrink after driving and before the tests. The results were 110 at 2:53 a.m. and 100 at 3:15 a.m. This delay in testing presents the key issue in this case. • Has the Crown proven the assumptions underlying the toxicologist's expert opinion that Mr.

Shoemaker's blood alcohol content was over 80 mg of alcohol in100 milliliters of blood at the time of driving? [5] There is a presumption of identity when breath samples are obtained within 2 hours of the accused driving. As noted in s. 258(1)(

c) of the Criminal Code,samples taken within two hours, under certain conditions, are presumed to reflect the blood alcohol content at the time of driving. As the Supreme Court remarked, inthe 1992 R. v. Deruellle decision (SCC), 75 C.C.C. (3d) 118) this presumption "provides a procedural shortcut for the police, but only if the breath orblood sample is obtained within two hours of the alleged offence." [6] The Crown does not get the benefit of this shortcut here. The accused provided two samples that morning.

As noted, he finished driving at 12:38 a.m. andprovided samples, at 2:53 and 3:15 a.m., of 110 mg and 100 mg respectively. THE CASELAW [7] In over .08 cases, where the two hour limit is not met, expert's opinions are required and routinely used in Courts to prove, by an extrapolation backwards intime, estimated blood alcohol content at the time of driving. It is settled law that the assumptions which the opinions are based upon must be proven by the Crownbeyond a reasonable doubt. The manner and sufficiency of that proof has generated a fair amount of jurisprudence.

The assumptions made in these cases are generallysimilar to those referenced by Richelle Booker, the Crown expert forensic toxicologist called in this case. Ms Booker described four basic assumptions she madebefore performing her calculations: 1. No alcohol was consumed after driving and before the breath samples were taken; 2. No bolus drinking was done; i.e. consumption of a large amount of alcohol all at once just prior to driving;

3. An elimination rate between 10 and 20 mg per hour was used to indicate the average rate of elimination; 4. There is an accepted two hour plateau after drinking where the rate of elimination and the rate of absorption are roughly equal. Ms Booker calculated that, depending on whether the accused stopped regular social drinking 30 minutes or more prior to the incident, his blood alcohol content atthe time of driving would range from .126 to .152 percent or from .106 to .132 percent. [8] I was provided with s. 258(1)(

c) case law dating back to 1974; much of it from Saskatchewan. I also reviewed the 2010 R. v. Paszczenko Ontario Court ofAppeal decision provided by the Crown. Finally, I reviewed the following decisions; all from Ontario but for the 2007 decision of R. v. Smith, written by mycolleague Judge Elliott, and the 2010 BCCA decision R. v. McLean (2010 BCCA 341). R. v. Grosse (ONCA) R. v. Bulman 2007 ONCA 169 R. v. Hall 2007 ONCA 8 R. v. Smith [2007] M.J. No. 334 - PCMB R. v. Calabretta [2008] O.J. ONCJ R. v. Calabretta [2008] ONSCJ - appeal R. v. Evans, 2008 ONCJ 778 R. v. Robinson O.J. No. 5233 - OCJ R. v.

McLean, 2010 BCCA 341 [9] Defence counsel, in urging the Court to follow the Saskatchewan line of cases, submitted that the R. v. Paszczenko decision (infra) is illustrative of a "very, verynew" thread of jurisprudence. I question this as it seems the notion of a common sense inference of normal drinking patterns dates back at least to 1996 in the OntarioCourt of Appeal decision of R. v. Grosse (supra). I will review a number` of the cases, primarily focusing on assumptions of no bolus drinking, to attempt to trace theevolution of at least a representative sample of the jurisprudence on this point.

THE EVOLUTION OF S. 258(1)(

C) CASE LAW THE 1980s R. v. Nelson, (SK KB), 16 Sask. R. 391 [10] In this Crown appeal the breath samples were taken outside the two hour period and an expert offered an opinion on the blood alcohol content at the time ofdriving, based upon certain assumptions. [11] The Saskatchewan District Court found that "where the presumption is inapplicable, the prosecution must prove all the ingredients of the offence, in theordinary way, beyond a reasonable doubt." In a case such as this that includes proving the assumptions upon which any expert evidence is based.

Here, the Courtfound that there was evidence to support only one of the three assumptions. The Crown's argument that the information regarding assumptions 2 and 3 were solelywithin the knowledge of the accused and should be proven by him was rejected by the Court. The Court held that 'there is no burden upon the accused to disprovethese assumptions." The acquittal was upheld. R. v. Reed, (SK KB), 18 Sask. R. 357 [12] In Reed expert evidence was offered to establish the accused was over .08 at the time of driving as the presumption did not apply.

Reed was in an accidentshortly after leaving a bar and returned to the bar afterwards. There was no evidence about the impact of unabsorbed alcohol in the stomach and lack of evidenceabout possible consumption at the bar post-driving. The expert did not consider how alcohol still in the stomach at the time of driving would have impacted thereadings and the appeal Court upheld the acquittal. The appeal judge found that "[t]he burden remained with the Crown throughout to establish facts in proof of allthe ingredients of the offence charged. The Crown invites the Court to categorize assumptions as facts.

The trial judge was right to decline the invitation." THE 1990s R. v. Deruelle, (SCC), 75 C.C.C. (3d) 118 (SCC) [13] Deruelle was a case where the accused was injured and transported to hospital by ambulance. By the time the officers could make a demand more than twohours had passed and the trial judge dismissed the case as a result. Once the case reached the Supreme Court the Court confirmed that, although the officer needs toform the belief for a demand within two hours, the actual demand need only be made as soon as practicable.

The Court remarked that "it is now settled law that afailure to comply with the provisions of s. 258 robs the Crown of the benefit of the presumption but nothing more… The evidence obtained is still admissible." R. v. Grosse, (ONCA) [14] Grosse is a second level appeal. Mr. Grosse was convicted at trial, overturned on appeal and the Crown then appealed to the Court of Appeal.

[15] The case started with a routine traffic stop which turned into a drive over investigation. Due to timing the presumption did not apply. The only assumption atissue on this Crown appeal was bolus drinking. The expert calculated that for the accused to be under .80 at time of driving and attain the accepted breath results thathe would have had to consume, in the 30 minutes prior to driving more than six beer or nine fluid ounces of 40% alcohol. The trial judge found this “preposterous”and convicted.

This conviction was over-turned on appeal based on oral reasons which could not be located for the second appeal. [16] The Crown urged that the accused be given the burden of proof in this situation as “the amount of alcohol consumed is a matter peculiarly within the knowledgeof the accused”. The Court did not agree, saying this would require the creation of a common law presumption which they were not prepared to do. When the Crowncannot rely upon the s. 258(1)(

c) presumption they said “it must prove its case in the ordinary way.” [17] The Court reviewed the evidence on which the trial judge could have found no bolus drinking, for sufficiency. There were signs of alcohol in the vehicle, nostrong odour of alcohol on the accused, and no evidence he’d just left a bar.

The trial judge could consider the unlikelihood of the accused, in less than 30 minutes,just before leaving for home, consuming 9 ounces of alcohol. “This was not a matter of taking judicial notice of drinking patterns,” the Court of Appeal found, “butmerely applying common sense as to how ordinary people behave.” The conviction was restored. The 2000s R. v. Drummond, (SK KB), 188 Sask. R. 173 [18] This appeal of an over .08 conviction featured an expert report relying on assumptions of no post-driving consumption, no bolus drinking and alcohol consumedbeing 5% alcohol content beer.

The conviction was over-turned as the appeal judge questioned the ability of the judge to "rely solely upon the breathalyzer readingswhich he is not entitled to do because they were taken more than two hours after the accident." [19] I take this to mean that the judge could not use the breathalyzer test results as evidence to support the assumptions as the breathalyzer results, according toDeruelle, (supra) are admissible. R. v. Turgeon, 2002 SKPC 85 , 225 Sask. R. 108 [20] In this trial decision the accused was involved in a traffic accident and the samples were taken outside the two hour limit.

Expert evidence was offered and theusual assumptions were relied upon included a "normal social drinking pattern". The Court found that in the absence of evidence of consumption of alcohol otherthan the accused's admission that he had five drinks there wasn't a "sufficient evidential basis to support the expert's calculation." R. v. Hall, 2007 ONCA 8 [21] In Hall a tow truck struck and killed a pedestrian. The tow truck driver had just come from a nearby restaurant where he had been drinking. Hall was convictedat trial and appealed on several grounds, including the assessment of bolus drinking evidence.

The tests were taken outside the two hour limit. Although defencepresented a witness who claimed the accused drank a half beer quickly just before driving the trial judge found this witness unreliable.

The Court found that “therewas no evidence whatsoever of bolus drinking, nor was there any other evidence to undermine the common-sense inference of drinking at a normal pace, on which thetrial judge was entitled to rely.” The Court of Appeal found that the trial judge was always conscious that the burden of proof lay on the Crown and did notinappropriately shift that burden. [22] The Ontario Court of Appeal relied upon R. v. Noble, (1997), (SCC), 114 C.C.C. (3d) 385 (SCC) to reach this conclusion.

Justice Sopinka wasclear from the first paragraph of his majority decision that – “the right to silence and the presumption of innocence preclude” the use of that silence by the trier of factin arriving at belief in guilt beyond a reasonable doubt. The Ontario Court of Appeal in Hall conveniently summarized some basic rules from Noble that speak to therange of situations where the trier of fact can reference the silence of the accused, however: “1.

Where the trial judge is satisfied that the Crown has proved its case beyond a reasonable doubt, the silence of an accused may be referred to as evidence of theabsence of an explanation which could raise a reasonable doubt. (para.78 of Noble) 2. Where the level of the Crown’s proof falls short of proof beyond a reasonable doubt, the silence of an accused may not be referred to as bridging any partof that burden. (para. 81 of Noble) 3.

Because the term “inference” can be taken to indicate that the trier of fact used silence to help establish the case for guilt beyond a reasonable doubt,Courts should generally avoid using the term in discussing the silence of an accused. (para. 90 of Noble)” R. v. Bulman, 2007 ONCA 169 [23] In Bulman the accused’s vehicle left the road and his passenger was killed. He was convicted at trial of drive over .08, dangerous driving causing death andimpaired driving causing death.

One of the grounds of appeal was that the jury had not been instructed there was no evidence that the accused had not engaged inbolus drinking. The jury, the Court of Appeal held, was “entitled to rely upon their common sense, and to draw inferences about how normal people behave.

Areasonable inference is that normal people do not consume large quantities of alcohol shortly before, or while, driving.” The accused apparently exhibited indicia ofimpairment within 10 to 15 minutes of the accident and the Court pointed out the jury could consider the inherent implausibility of that if he had not been impairedwhen driving. R. v. Smith, [2007] M.J. NO. 334 [24] This is the sole Manitoba decision I considered. The presumption did not apply due to timing of the breath samples.

Despite disbelieving any bolus drinking hadtaken place the Court found a blood alcohol level of .08 had not been proven beyond a reasonable doubt. [25] The trial judge found, relying on the Noble decision (supra) that the Crown's case could not be bolstered by drawing an adverse inference from the accused's

failure to testify. She left open the possibility that enough evidence could have been called to convince her of the Crown's case.

She referenced Grosse, (supra),where the expert provided evidence, as done in the case at bar, of how much the accused "would have had to drink within a short period of time to get her readings towhat they were at the time of testing but still have her under .08 at the time of driving." The trial judge wrote that this would have given her something to consider -did she believe the accused would have "consumed such an amount, or would have consumed such an amount, in a short period?" If she didn't believe such evidenceshe might have been able to convict.

Essentially, she held that although bolus drinking was improbable she still wasn't convinced beyond a reasonable doubt, andcould not convict. R. v. Calabretta, 2008 ONCJ 27 , [2008] O.J. NO. 364 [26] Mr. Calabretta was stopped just after leaving a licensed establishment. The breath samples were not taken within the two hour time period. An expert reportwas tendered.

Defence argued that three of the four assumptions relied upon by the expert had not been proven. [27] The trial judge drew a helpful distinction between the four assumptions, as follows: "accepting that there must be a basis for all four assumptions it seems thatthere is a difference between the first two assumptions and the latter two. The first two assumptions, (bolus drinking) (no drinking after offence) are clearly matters offact for the trial judge to determine on the evidence or lack thereof presented at the trial.

The latter two assumptions (rate of elimination) and (allowance for aplateau) are really matters of science upon which an expert should be able to rely." The trial judge found that, despite the accused having just left "licensed premises"the Court was still "entitled to consider common sense and a knowledge of how people normally behave to reject the possibility of bolus drinking." The accused wasconvicted. R. v. Calabretta, [2008] O.J. NO. 4188 [28] The accused appealed this decision to the Ontario Superior Court of Justice. It was upheld.

This decision starts to clarify the type of evidence required to proveno bolus drinking. Referencing R. v. Grosse (supra), the Court suggested that, if there were a ratio for that decision, "it would be that, while there is no common lawpresumption that an accused has not engaged in bolus drinking immediately before the incident under examination, very slight circumstantial evidence suggesting theabsence of such bolus drinking will suffice to place upon the accused an evidentiary burden to explain unusual facts uniquely within his knowledge.

If he fails to doso, the trier of fact may draw an adverse inference to the accused that tends to support the circumstantial evidence negating bolus drinking.” R. v. Evans, 2008 ONCJ 778 [29] The proof of the assumptions upon which the expert based the opinion of levels at time of driving was the issue in this case. The Court found there was a lackof evidence tending to show that the accused had not consumed a large amount of alcohol just before being stopped and that he would have to speculate to infer therewas not. The accused was acquitted on the over .08 charge. THE 2010s R. v.

McLean, 2010 BCCA 341 [30] This case arose out of a two vehicle collision just outside of Fort St. John, in northern British Columbia which resulted in charges being laid against Mr. McLeanand the death of the driver of the other vehicle. Breath samples were not taken within two hours and an expert was called. The appellant alleged that, by failing todismiss the charges upon the close of the Crown’s case, the trial judge effectively reversed the onus of proof.

The Court of Appeal disagreed, saying that “there wassome evidence to support the conclusion that the appellant had not gulped down 4 to 6 ounces of alcohol half an hour before driving or after the accident.” TheGrosse decision was referenced, where the Ontario Court of Appeal held that “while there was not a great deal of evidence to support the assumption of no bolusdrinking, there was sufficient evidence that it could not be said that the trial judge’s decision was unreasonable.” The accused actually confirmed when he took thestand, that his last drink was much earlier than half an hour before the accident.

The appeal was dismissed. R. v. Paszczenko, 100 M.V.R. (5TH) [31] Justice Blair of the Ontario Court of Appeal, writing last year for a unanimous panel in R. v. Paszczenko and R. v.

Lima (supra) wrestled with the issue ofevidentiary burdens as follows: "I would frame the rationale for this approach as the imposition of a practical evidentiary burden on the accused, not to persuade or convince the trier of fact that therewas bolus drinking involved, but to point to something in the evidence (either in the Crown's case, or in evidence led by the defense) that at least puts the possibilitythat the accused had engaged in bolus drinking in play.

The imposition of a practical evidentiary burden to come forward with evidence is simply another way ofexplaining the invitation to draw a common sense inference which puts the accused in essentially the same spot if he or she cannot point to some evidence toovercome either hurdle." [32] The Court of Appeal noted the difficulty, for the Crown, in proving a negative and suggested that the Crown "need do very little." The Court found that judgesare entitled to rely on "common knowledge and common sense about how people behave." R. v. Robinson, 2010 ONCJ 576 , [2010] O.J.

NO. 5233 [33] For Ontario, with the Paszczenko decision, it seems this debate is settled. In R. v. Robinson the trial judge wrote, when considering whether no bolus drinkingand no post-offence drinking had been proven, that "[t]he short answer is the defendant herself in her answers to the breath technician officer denies drinking anythingat all that evening. That is some direct evidence of no bolus drinking. In any event, I believe that the decision in R. v. Paszczenko puts paid to the argument that theCrown must call evidence on this and other assumptions of the toxicologist.

In the absence of something on the record to suggest the contrary, on what basis could atrier of fact conclude there was bolus drinking? The Court has answered the question posed by concluding that triers of fact may resort to a common sense inferencein such circumstances, namely, that people do not normally ingest large amounts of alcohol just prior to, or while, driving." THE EVIDENCE OF DRINKING: [34] Keeping in mind this requirement to carefully consider whether there are facts which might support bolus drinking the evidence must be considered.

[35] Mr. Shoemaker had clearly been drinking at some point - he had alcohol on his breath at the scene. His eyes appeared bloodshot and glossy when he removedhis helmet and visor. He was not, however, slurring his speech and walked to and entered the officer's ¾ ton truck easily. The officer noted that even though theaccused was wearing heavy boots and a skidoo suit he had no difficulty walking. The officer also testified that, without the ASD result, he would not have reasonableand probable grounds to demand a breathalyzer sample. [36] The officer searched the scene for evidence of alcohol and found no bottles.

In response to questions about consumption after he spoke to counsel the accusedindicated he didn't remember the time of his last drink and that he'd been drinking vodka and 7-up. This question was posed less than two hours after driving. Fromthe first contact with the police until the breathalyzer tests were complete the accused had no access to alcohol. There is no evidence that the accused was comingfrom a drinking establishment. He appeared to be just entering Grandview and he was traveling on a snowmobile.

CROWN POSITION: [37] The Crown urges the Court to draw a common sense inference of regular social drinking, rely upon the Paszczenko decision (supra) and convict. DEFENCE POSITION: [38] Defence counsel submits that it is up to the Crown to prove beyond a reasonable doubt the assumptions upon which the expert’s opinion is based and that theyhave not done so. He suggests that there is a reasonable doubt based partly upon his cross-examination of the expert witness, and I should acquit. EXPERT TESTIMONY: [39] Ms Booker was cross-examined by defence counsel.

Much was made of the fact that she had made a backward calculation based on the breathalyzer resultsinstead of a forward calculation based upon actual drinking patterns. This causes me no concern and appears to be the usual manner of proof in cases where theCrown can not take advantage of the presumption due to timing of the breath samples. [40] Ms Booker was also cross-examined on what amount of alcohol would have to be in the accused’s stomach to put him under .08 at the time of driving, but at theresult of 100 at 3:15 a.m., being the lower sample.

Ms Booker calculated that the accused could have 3 ounces of alcohol in his stomach at 12:38 a.m. to obtain astraddle reading, being a range both above and below the legal limit, and 4 ounces to obtain a reading completely under the legal limit. ANALYSIS: [41] To be clear, this hypothetical posed by defence counsel does not negate a common sense inference of social drinking.

I don’t see this suggestion of 3 ounces ofalcohol in the stomach at 12:38 a.m. as pointing to something in the evidence that “at least puts the possibility that the accused had engaged in bolus drinking in play,”as suggested in the Paszczenko decision. Ms Booker was clear – if 3 ounces were still in the stomach they would have to be attributable to alcohol consumed withinthe last 5 minutes or the process of absorption would have started. This may be more likely to put bolus drinking in play if there were bottles at the scene, or if theaccused had just left a bar. That kind of evidence is not before me, however.

Mr. Shoemaker had just driven into town on his snowmobile and there was no evidenceof alcohol bottles on or near him. It seems very unlikely that he drank 3 – 4 shots of alcohol within the 5 minutes prior to arriving.

I agree with the Paszczenkodecision and the line of cases leading to it, that very slight circumstantial evidence will be sufficient, combined with the common sense knowledge of how peopledrink and normally behave, to meet the crown’s burden when disproving bolus drinking. [42] I find that the Crown has proven, beyond a reasonable doubt, that a. there was no bolus drinking in this case; b. the accused had nothing to drink after driving and before the tests; c. the evidence of a drinking plateau is within the expertise of Ms Booker and I accept her expert opinion on this point; d. the average elimination rate of 10 – 20 mg percent per hour is similarly within Ms Booker’s expertise and I accept her evidence on that point as well. [43] As all 4 of the assumptions have been proven I accept the expert’s evidence that Mr.

Shoemaker’s blood alcohol level was at the lower estimation of between106 – 132 mg percent at the time of driving and convict accordingly. DRIVE IMPAIRED: [44] Part of the evidence that the Crown referred to in support of a drive impaired conviction was that the snowmobiles that the officer saw as he neared town werespeeding, going over 100 kilometres per hour at night on a groomed snowmobile trail. The officer testified that he was traveling 100 kilometres per hour and thesnowmobiles were going faster than him.

I am uncertain how he could arrive in town, have time to speak to his fellow officer, and only then have the snowmobilespull into town. It may be that the trail winds away and is longer than the highway itself. I’m not sure. It certainly puts me in doubt that the first two snowmobileswere the same as the second snowmobiles or surely they should have arrived first. The officer himself said he merely assumed they were the same machines. I amnot prepared to consider the manner of driving as I am not persuaded they were the same machines. [45] The Alberta Court of Appeal refined the R. v.

Stellato standard of impairment ((1994) , (SCC), 90 C.C.C. (3d) 160 (S.C.C.)) in their oft-citeddecision R. v. Andrews, 1996 ABCA 23 . They cautioned that: “The Courts must not fail to recognize the fine but crucial distinction between “slight impairment” generally, and “slight impairment of one’s ability to operate amotor vehicle”. Every time a person has a drink, his or her ability to drive is not necessarily impaired. It may well be that one drink would impair one’s ability to dobrain surgery, or one’s ability to thread a needle.

The question is not whether the individual’s functional ability is impaired to any degree. The question is whether theperson’s ability to drive is impaired to any degree by alcohol or a drug. In considering this question, judges must be careful not to assume that, where a person’sfunctional ability is affected in some respects by consumption of alcohol, his or her ability to drive is also automatically impaired.”

[ 46 ] In this case we have an odour of alcohol, which, on its own, simply means alcohol was consumed. We have glossy and reddened eyes. I am not prepared to put much weight on these latter two factors at all considering Mr. Shoemaker was outside in the cold participating in a winter sport. These indicia could be too easily explained away by the cold and the wind. [ 47 ] All the Crown was able to point to, in argument, was that Ms Booker testified that all individuals are impaired in their ability to safely operate a motor vehicle at 100 mg percent.

Although Ms Booker did make that broad statement there was nothing in the evidence which could safely help me link the physical manifestations of impairment described by Ms Booker with Mr. Shoemaker’s condition at the time of the stop. Ms Booker testified that, at lower levels of alcohol consumption mental and sensory functions will be affected, and there will be some deterioration of attention, comprehension, judgment and information processing. I’m not satisfied that the evidence bears this out for Mr. Shoemaker. The officer did not even hold a subjective belief that Mr.

Shoemaker was impaired – without the ASD he felt he wouldn’t have grounds to arrest him for driving over or impaired. Considering the evidence tendered in this trial I am not convinced beyond a reasonable doubt that Mr. Shoemaker’s ability to drive a motor vehicle was impaired by alcohol and I confirm the dismissal entered on January 20 th at the end of the trial. Sentencing will occur at a later date, to be arranged. “Original signed by” C. V. Harapiak, P.J. 2011 MBPC15 THE PROVINCIAL COURT OF MANITOBA DAUPHIN CENTRE BETWEEN: ) ) HER MAJESTY THE QUEEN ) J. Barclay

) for the Crown. - and - ) ) JASON JAMES SHOEMAKER, ) D. Kreklewich ) for the Accused. Accused. ) ) Oral Judgment Delivered: ) February 24, 2011 HARAPIAK, P.J. E R R A T U M Please note that I have made the following changes to the judgment delivered in this matter on February 24, 2011: 1. Page 1 – changed to “The Provincial Court of Manitoba”. 2. Page 19, paragraph 38 – The last word “convict” changed to acquit. Please replace pages 1 and 19 of the judgment with the attached pages 1 and 19, as amended. DATED this 3rd day of March, 2011. ___ “Original signed by” C. V. Harapiak, P.J.