Her Majesty the Queen - v. -, 2022 SKPC 31

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2022 SKPC 31 Date: July 19, 2022 Information: 90421454 Location: Weyburn _____________________________________________________________________________ Between: Her Majesty the Queen - and - Denny Herring Appearing: Michelle Korpan For the Crown Michael Weger For the Accused DECISION M.R. BRASS , J INTRODUCTION [ 1 ] Mr. Denny Herring was charged on Information ending 1454 that on or about the 18 day of July 2021 at Weyburn, Saskatchewan did: 1. In committing an assault on Christopher Beaton cause bodily harm contrary to

section 267(

b) the [ sic ] Criminal Code .

2. While his ability to operate a conveyance was impaired by alcohol did operate a conveyance, contrary to

section 320.14(1) (

a) of the Criminal Code . 3. Within two hours of ceasing to operate a conveyance have a blood alcohol concentration that was equal to or exceeded eighty milligrams of alcohol in one hundred milliliters of blood contrary to

section 320.14(1) (

b) of the Criminal Code . [ 2 ] The Crown proceeded by

summary conviction on all three counts. Mr. Herring entered a not guilty plea on all counts. The trial commenced on December 7, 2021, continued on February 4, 2022 and concluded on March 24, 2022. [ 3 ] The Crown indicated at trial that it would not be pursuing the charge under Count 2. BACKGROUND [ 4 ] At around 4:30 p.m., on July 18, 2021, Mr. Herring was exiting the fairgrounds in Weyburn, Saskatchewan. There were many people on the streets as families of parents and children were coming and going to and from the Weyburn Fair. The accused was making a right hand turn onto the street exiting the grounds.

He was driving a grey Ford F-150 truck. [ 5 ] The complainant, Mr. Christopher Beaton, indicated in his testimony that the accused nearly sideswiped his car as Mr. Herring drove by to make that right turn. Mr. Beaton also indicated that pedestrians yelled and kicked the accused’s truck as he drove by for nearly hitting them. Mr. Beaton indicated that he honked at the accused and followed him as Mr. Herring drove on. [ 6 ] Mr. Herring indicating that he heard a vehicle honking but did not think it was for him.

The manner in which he was driving was described as being deliberately slow, swerving side to side and randomly pressing on his brakes. Mr. Herring denied this description and claimed he was driving normally. Mr. Beaton continued to follow the accused as they continued to drive on his normal route home. [ 7 ] Mr. Herring indicated that he thought perhaps the driver behind was being a Good Samaritan and was trying to tell him that something was wrong with his truck. He indicated that he stopped at an intersection, got out of his truck and walked back to the car behind him.

He stated that he then saw an angry man with clenched fists coming at him. That man was Mr. Beaton. Mr. Herring did not indicate if he said anything to Mr. Beaton but stated that he thought the man was winding up to punch him as the man turned to his side. Mr. Herring indicated he then punched Mr. Beaton in the face and saw him go down to the ground. He then said he returned to his truck and drove off. [ 8 ] Jason Roy, a paramedic with the Saskatchewan Health Authority in Weyburn, happened to be parked in an Emergency Medical vehicle at the intersection across from the altercation.

He indicated that he saw the two vehicles stop at the intersection. He then saw the drivers of each vehicle get out and walk towards each other. He then observed Mr. Herring strike Mr. Beaton on the left side of his head as Mr. Beaton turned slightly. He saw Mr. Beaton go down to the ground. He then observed Mr. Herring get back into his truck and drive off. [ 9 ] Mr. Beaton’s stepson, Keigan Jasper, was also in the vehicle and observed Mr. Herring as he drove away from the fair grounds. He indicated that he observed Mr.

Herring drive closely to their vehicle at the fair grounds and indicated that there were a lot of pedestrians on the street. He thought that Mr. Herring was drunk based on how he was driving. Mr. Jasper had no close contact with Mr. Herring. He sat in Mr. Beaton’s vehicle during the altercation between Mr. Herring and Mr. Beaton. He observed that his stepdad was angry when he exited the vehicle and walked towards Mr. Herring. He saw his stepdad start to point towards the fair grounds and then saw Mr. Herring strike his stepdad once on the side of the head. He saw his stepdad go down to the ground.

He then observed Mr. Herring get back into his truck and drive off. [ 10 ] The Weyburn Police Service received a call regarding an assault and possible motor vehicle accident near the intersection of Prairie and 2 nd . Constables Sonnenberg and Roy attended the scene. When they arrived at the scene, they found Mr. Beaton in the ambulance with two paramedics. They took a statement from Mr. Jasper who described what he observed, as described above. It was agreed that Mr. Beaton and his stepson would come to the Weyburn Police Station (WPS) to provide statements.

They all drove to the WPS at that point. [ 11 ] At the WPS just before 5:30 p.m., Cst. Roy was outside the station when a man approached him. He identified himself as

Denny Herring. The constable indicated that he asked Mr. Herring if he was there in relation to an alleged assault and he confirmed that he was. Mr. Herring was placed under arrest, placed into handcuffs and taken into the police station. [ 12 ] Inside the station, Cst. Sonnenberg could smell a strong odour of alcohol coming off Mr. Herring when he approached Cst. Roy and Mr. Herring on the cell block. He asked Mr. Herring if he had been drinking. On the video marked Exhibit P-1, Mr. Herring can be heard indicating a positive response to that question. Mr. Herring appeared intoxicated to Cst.

Sonnenberg who noted he had red eyes, slightly slurred speech and a flushed face. Cst. Roy then read Mr. Herring his Charter rights and arrested him for impaired operation of a vehicle that Mr. Herring drove, as confirmed by EMS paramedic Mr. Roy. [ 13 ] Corporal Ross obtained breath samples from Mr. Herring at 6:15 p.m. and 6:35 p.m. The readings were 160 and 150 mg of alcohol in 100 ml of blood.

The Crown submitted Exhibit P-4 Certificate of Analyst (duplicate of Exhibit P-8), Exhibit P-5 Certificate of Qualified Technician, Exhibit P-6 Certificate of Qualified Technician Approved Instrument Printout and Affidavit of Service, Exhibit P-7 Intox EC/IR II Subject Test Document and Exhibit P-8 Two Certificates of Analyst. [ 14 ] The second test was completed just outside of the two hours from the alleged incident, The Crown indicated that it would be relying on the lower reading of 150 mg in 100 ml of blood. [ 15 ] While waiting to give breath samples, Mr.

Herring indicated surprise that he was being investigated for impaired driving in relation to the alleged assault incident. He indicated that after the altercation on the street, he went home and drank two beer. As he chatted with Corp. Ross, Mr. Herring indicated that he had to teach that guy on the street a lesson for trying to be a tough guy. The wording he used in that conversation will be discussed below. [ 16 ] Mr. Herring testified in his own defence at trial. He indicated that he in fact drank around eight beers, although not 12 beers, very fast when he got home from the incident on the street with Mr.

Beaton. He testified that he had not had any alcohol to drink prior to getting home and that his alcohol levels were due to all the alcohol he drank quickly when he got home after the incident but before he went to the police station. ISSUES 1. Does Mr. Herring have a valid claim of self-defence in committing an assault on Mr. Beaton that caused bodily harm contrary to

section 267 (

b) of the Criminal Code when he struck the complainant on the side of the head? 2. Has the Crown proven beyond a reasonable doubt that Mr. Herring, within two hours of ceasing to operate a conveyance, had a blood alcohol concentration that was equal to or exceeded eighty milligrams of alcohol in one hundred milliliters of blood contrary to

section 320.14(1) (

b) of the Criminal Code ? ANALYSIS 1. Does Mr. Herring have a valid claim of self-defence in committing an assault on Mr. Beaton that caused bodily harm contrary to

section 267 (

b) of the Criminal Code when he struck the complainant on the side of the head? [ 17 ] There is no doubt that Mr. Herring punched Mr. Beaton hard enough to knock him out and cause him to fall to the ground and fracture his foot. There is also no doubt that Mr. Herring returned to his truck and drove away. Witness testimony and photo evidence marked Exhibit P-3 establish that Mr. Beaton was struck on the side of the head, behind his ear. At trial, Mr. Herring indicated that he punched Mr. Beaton in the face but that he was acting in self-defence. [ 18 ] Pursuant to section 34(1) of the Criminal Code , Mr. Herring is not guilty of an offence if:

(

a) he believed on reasonable grounds that force was being used against him; (

b) that the punch that constitutes an offence was thrown in order to defend or protect himself; and (

c) the punch was reasonable in the circumstances [ 19 ] Before the Court enters into an analysis of whether self-defence is established, the defence must have an air of reality to it. The defence only applies if the evidence of the accused is believed or raises a reasonable doubt. While the accused does not have the burden of proving self-defence, his evidence must be capable of at least raising a reasonable doubt. If there is no air of reality to the accused’s story, he cannot rely on self-defence.

See: R v Gunning , 2005 SCC 27 at para 29 , [2005] 1 SCR 627. [ 20 ] The air of reality test imposes a burden on the accused that is merely evidential, rather than persuasive. In applying the air of reality test, a trial judge considers the totality of the evidence, and assumes the evidence relied upon by the accused to be true. The trial judge does not make determinations about the credibility of witnesses, weigh the evidence, make findings of fact, or draw determinate factual inferences. Nor is the air of reality test intended to assess whether the defence is likely to succeed at the end of the day.

The question for the trial judge is whether the evidence discloses a real issue to be decided. [ 21 ] The Court heard that Mr. Beaton followed after Mr. Herring for allegedly narrowly side swiping him and for allegedly driving erratically through a crowd of people as he drove away from the fairgrounds. Mr. Beaton followed him for about four blocks before Mr. Herring stopped his truck and got out. Mr.

Herring indicated that he could see the roof of the car behind him and thought that he was being honked at because perhaps something was wrong with his truck and the car driver was just trying to be a Good Samaritan and warn him about something. [ 22 ] Mr. Herring indicated that when he got out of his truck, he then saw an angry man with clenched fists coming towards him. He indicated that he thought the man was winding up to strike him when the man turned his body. Mr. Herring then indicated that he struck the man on the face in self-defence and observed the man go quickly down to the ground. Mr.

Herring further said that he went back to his truck and ensured that he did not drive over the man as he drove off. [ 23 ] The Court accepts that being confronted by an angry unknown person might be a situation where one might need to defend oneself. [ 24 ] Pursuant to section 34(2), to determine if punching Mr. Beaton in the side of the head was reasonable in the current circumstances, a number of factors were taken into consideration.

The Supreme Court in R v Khill , 2021 SCC 37 considered section 34(2) and provided the following conclusion on Parliament’s intention in revising and simplifying the statutory language and the effect of the legislative changes: [45] Replacing preliminary and qualifying conditions with reasonableness factors also means these factors must be considered in all self-defence cases in which they are relevant on the facts. By contrast, under ss. 34 to 37 of the prior regime, some requirements were only engaged in certain situations, depending on which of those provisions governed.

For example, while the former s. 37 required that the force used be no more than necessary, there was no similar requirement under the former s. 34(2) ( Hebert , at para. 16). Now, however, the proportionality of an accused’s actions in response to a threat is always a discrete factor to be considered under s. 34(2)(g). It may be a deciding factor, even where the accused was an otherwise innocent victim of circumstance ( R. v. Parr , 2019 ONCJ 842 ; R. v.

Robertson , 2020 SKCA 8 , 386 C.C.C. (3d) 107, at paras. 41-43 ). [46] In practice, the new provisions are simultaneously more generous to the accused and more restrictive: the provisions narrow the scope of self-defence in some factual circumstances and broaden it in others ( R. v. Bengy , 2015 ONCA 397 , 325 C.C.C. (3d) 22, at paras. 47-48 ; Paciocco (2014), at p. 296).

The transposition of mandatory conditions into mere factors suggests more flexibility in accessing the defence, but this added flexibility is counter-balanced by the requirement to consider certain factors — including proportionality and the availability of other means to respond to the use or threat of force — in every case in which they are relevant, regardless of the genesis of the confrontation or the features of the dispute.

[ 25 ] The Court accepts the testimony from Crown witness Jason Roy who was an independent witness. He indicated that within seconds of both Mr. Herring and Mr. Beaton getting out of their vehicles, Mr. Herring punched Mr. Beaton on the side of the head, hard enough to knock him out and to the ground. The Court heard from a number of witnesses and was provided with photos that showed that Mr. Beaton was struck on the side of the head. Mr. Roy also indicated that when he attended Mr.

Beaton, he found that he also suffered from a fractured foot as a result of being knocked down to the ground. [ 26 ] The Court was not informed whether Mr. Herring said anything before hitting Mr. Beaton, such as to ask why he was honking or whether Mr. Beaton wanted to let him know if there was anything wrong with his truck. These are reasonable questions in light of how at trial Mr. Herring described the driver of the car behind him as being a Good Samaritan. [ 27 ] The Court accepts the evidence that within seconds of being approached by Mr. Beaton, Mr. Herring struck him on the head. Mr.

Herring then indicated that as Mr. Beaton spoke, he turned and it was at that point Mr. Herring perceived Mr. Beaton as turning to wind up to punch him and therefore had to punch him first. Mr. Herring did not indicate whether he could have stepped back and away as Mr. Beaton turned his head away in what Mr. Herring described as an attempt to wind up to hit him. [ 28 ] Along with how Mr. Beaton and his stepson described how Mr. Herring was driving, the Court also heard Mr. Herring indicate to Corp. Ross that he knew he was “pissing off” the driver behind him because the driver kept honking at him.

This statement suggests that Mr. Herring knew he had a role in the initiation of the incident on the street. In light of this evidence, the Court accepts that Mr. Herring drove in a manner that did cause concern for Mr. Beaton. The Court also accepts the evidence of Mr. Beaton and his stepson who both described that Mr. Herring drove dangerously around the pedestrians at the Fair and drove erratically on the street before Mr. Herring stopped his vehicle. [ 29 ] Mr. Beaton admitted to being angry when he got out of his car to confront Mr. Herring about how he had driven near the fairgrounds.

His angry state was confirmed by his stepson, Mr. Jasper. They both assumed that Mr. Herring must be impaired. Mr. Beaton indicated that he wanted to inform Mr. Herring that he had just endangered the lives of families that included children when exiting the fairgrounds. Mr. Beaton indicated that he was voicing his outrage to Mr. Herring when he turned to point towards the fairground. He was looking towards the Fair when Mr. Herring punched him. [ 30 ] Mr. Beaton indicated that he was trained in martial arts and had a black belt. The Court observed that both men were about the same height, but that Mr.

Beaton was slimmer in build. Mr. Beaton indicated that he did not plan to get into a physical altercation with the driver of the truck. He indicated that this was evidenced by how he turned his back on Mr. Herring when he pointed towards the fairgrounds. Both Mr. Beaton and Mr. Jasper appeared to be open and honest in their testimony to the Court. [ 31 ] No weapons were reported to be used. [ 32 ] The Court does not find the nature of Mr. Herring’s response to be reasonable for a person who said he exited his vehicle to speak with someone who he thought was being a Good Samaritan.

Punching that alleged Good Samaritan in the side of the head that quickly, and hard enough to knock him out and down to the ground is not reasonable in this situation. [ 33 ] The nature of Mr. Herring’s approach in these circumstances was also evidenced in his voluntary statements to Corp. Ross that was recorded on the video marked Exhibit P-1. Mr. Herring can be heard saying that “ someone has to teach these little spoon-fed fuckers a lesson and give him the spanking his mother should have given him .” The nature of that statement shows the approach Mr. Herring had taken on the day of the incident. Mr.

Herring provided testimony in court that he did not mean to say these things. However, the Court accepts that because Mr. Herring made these statements close to the time of the incident that they show how he really felt that day, rather than what he may have felt on the day of trial. [ 34 ] The Court does not accept that there was an imminent danger in those seconds before Mr. Herring struck Mr. Beaton. The Court is also not convinced that Mr. Herring had no other options available to him such as stepping away or returning to his truck when he said Mr. Beaton turned to the side. The Court also noted that Mr.

Herring did not indicate he was acting in self-defence when he was speaking with Corp. Ross and only raised it at trial. [ 35 ] The Court accepts the evidence that Mr. Herring punched Mr. Beaton on the side of the head powerful enough to knock him out and to the ground. Mr. Beaton also suffered a fractured foot from falling to the ground as he was turning. Mr. Herring’s actions in these circumstances are found to not be reasonable. The Court is, therefore, not convinced that Mr. Herring was acting in self-defence

when he struck Mr. Beaton. [ 36 ] The Court therefore finds Mr. Herring guilty on Count 1 on Information ending 1454. 2. Has the Crown proven beyond a reasonable doubt that Mr. Herring, within two hours of ceasing to operate a conveyance, had a blood alcohol concentration that was equal to or exceeded eighty milligrams of alcohol in one hundred milliliters of blood contrary to

section 320.14(1) (

b) of the Criminal Code ? [ 37 ] The incident involving Mr. Herring driving away from the fairgrounds and assaulting Mr. Beaton occurred at around 4:30 p.m. Crown witness Mr. Jasper indicated that he and his stepdad, Mr. Beaton, left the grounds around 4:30 p.m. Crown witness Mr. Roy who identified Mr. Herring also indicated that he witnessed the incident at around 4:30 p.m. The Weyburn Police Service Constables Sonnenberg and Roy were dispatched to the scene around that time. [ 38 ] The time stamp on the video marked as Exhibit P-1 was 17:29 hours. Mr.

Herring can be seen standing in the holding area of the Weyburn Police Station being unhandcuffed. [ 39 ] Just prior to 5:29 p.m., Mr. Herring had walked from his condo to the WPS. The condo was a block away to the station. Mr. Herring approached Cst. Roy who was in the WPS parking lot. Cst. Roy asked him if he was the individual involved in the assault on the street. Mr. Herring said that he was that person. He was placed under arrest and taken into the police station. As indicated, Cst. Roy read Mr.

Herring his Charter rights, read him the breath demand and provided a police warning in relation to charges for assault and impaired driving. Mr. Herring indicated that he understood and that he did not need to speak to a lawyer at that time. [ 40 ] At 5:35 p.m., Cst. Lippey provided Mr. Herring a second police warning and read him his Charter rights to counsel again. Mr. Herring again indicated that he understood. The constable and Mr. Herring chit-chatted until around 5:45 p.m. [ 41 ] At 5:45 p.m., Corp. Ross comes into the breath testing room and is the officer who completes the breath tests on Mr. Herring.

The corporal confirms that Mr. Herring was arrested for assault and impaired driving. He indicates that based on the information the police had before them, they believed they had reasonable grounds for the arrest. The signs of impairment included the smell of alcohol, red eyes, droopy face and admission of the consumption of alcohol. [ 42 ] Mr. Herring attempted to say there were no facts before the police to investigate him and that they were wasting their time. He blamed the other driver and accused him as being drunk. The Court was informed by Mr. Beaton that he does not consume alcohol. Mr.

Herring was then informed that EMS was present at the scene and had witnessed the events that occurred there. [ 43 ] At 6:15 p.m., the first breath sample was taken. The second sample was taken at 6:35 p.m. The corporal produced his Certificate of Qualified Technician that used the instrument AIRGAS Lot AG926601. It indicated that the sample taken at 6:15 p.m. was 160 mg of alcohol in 100 ml of blood and the sample taken at 6:35 p.m. was 150 mg of alcohol in 100 ml of blood. The Notice of Intention to Produce Certificate and Affidavit of Service was also served on Mr. Herring and produced in court.

These documents were filed as Exhibit P-5. The Certificate of a Qualified Technician Approved Instrument Print Out, Notice of Intention to Produce Certificate and Affidavit of Service was also filed in court and marked as Exhibit P-6. The Intox EC/IR II: Subject Test results showing the said results were filed with the court and marked as Exhibit P-7. The Certificate of an Analyst confirming the Alcohol Standard for the AIRGAS Lot AG926601 was filed with the court and marked as Exhibit P-8. [ 44 ] When Mr. Herring was speaking with Corp.

Ross, he indicated that after the incident, he went home and drank two beers. He then observed the black car that was driven by Mr. Beaton at the police station. He decided to also go to the station. On cross- examination, Mr. Herring then told the Court that he actually drank about eight or more beers after he got home from the incident and before he went to the police station. He thought he quickly drank about eight beers but was not exactly sure how many he drank. In watching the video marked Exhibit P-1, the Court noted that Mr.

Herring did not request to use the washroom nor appeared to need to use the washroom while he was at the WPS for over an hour. [ 45 ] Mr. Herring did not produce any evidence that showed the amount of alcohol that he drank after he left the scene of the incident to return home and before he walked over to the police station. Nor did Mr. Herring provide the Court with evidence with which to evaluate the claim that his alcohol consumption was consistent with his blood alcohol level when tested and his blood alcohol

level when he was seen driving erratically was less than 80 mgs of alcohol in 100 ml of blood. [ 46 ] The Crown established that there were reasonable grounds to make a breath demand on Mr. Herring. He was observed driving his truck erratically within an hour of when Mr. Herring was noted to have signs of impairment, including having a strong odour of alcohol, red eyes, and a slight slur in his speech. The breath samples produced results including a blood alcohol concentration of 150 mg in 100 ml of blood just over two hours of being observed operating a conveyance.

The Court is satisfied that the Crown has proven beyond a reasonable doubt that Mr. Herring had a blood alcohol concentration that was over the legal limit. [ 47 ] Mr. Herring seeks to avail himself of the defence found in

section 320.14(5) that reads:

(5) No person commits an offence under paragraph (1)(

b) if (

a) they consumed alcohol after ceasing to operate the conveyance; (

b) after ceasing to operate the conveyance, they had no reasonable expectation that they would be required to provide a sample of breath or blood; and (

c) their alcohol consumption is consistent with their blood alcohol concentration as determined in accordance with subsection 320.31(1) or (2) and with their having had, at the time when they were operating the conveyance, a blood alcohol concentration that was less than 80 mg of alcohol in 100 ml of blood. [ 48 ] In the case of R v Deshpande , 2021 ONCJ 699 [ Deshpande ] (dated September 28, 2021) at para. 87, Justice Renwick stated: [87] As already stated, throughout the entire trial, the onus remains on the prosecution to prove the Defendant’s guilt, beyond a reasonable doubt.

Where the Defendant seeks to avail himself of a defence, such as the one codified by s. 320.14(5), he has no burden to call evidence or establish the defence to any standard. [ 49 ] Mr. Deshpande, the defendant in that case, left the scene of a car accident. When the police located him, he indicated that he drank approximately 375 ml of spiced rum some 16 minutes after driving and was intoxicated five to ten minutes after drinking the alcohol when he got home. The Court did not accept Mr.

Deshpande’s evidence and stated the following: [96] The elements of this part of the statutory defence are identical to the elements used to rebut the presumption created by the former legislation under s. 258(1)(d.1). It seems only logical that the type of evidence required to create an air of reality to this component could only come from a toxicologist. I say this because I am not in a position to evaluate the consumption, absorption, and elimination of alcohol from a person’s body, much less am I capable of determining whether the evidence raises an air of reality that s. 320.14(5)

c) can be met. [97] Even accepting the Defendant’s evidence respecting the timing of his consumption of alcohol (which I do not), and the evidence that the Defendant had no reasonable expectation that he would be required to provide a breath sample to police, which is also controversial, I have no evidence with which to evaluate the claim that the Defendant’s alcohol consumption was consistent with his BAC when tested and his BAC when operating his Audi was less than 80 mgs of alcohol in 100 mL of blood.

There is a complete dearth of evidence to raise an air of reality that this requirement of the statutory defence exists. [98] I am satisfied beyond a reasonable doubt that the Defendant has failed to raise an air of reality that his BAC when driving was permissible and his BAC only rose to the level that was recorded by the qualified technician after he stopped driving. [ 50 ] A different

interpretation is outlined in R v Lochead , 2021 ONCJ 432 [ Lochead ] (dated August 18, 2021) where Justice March stated: [85] Central for determination on this trial is whether:

a) under s. 320.14(5) of the Code, Lochead is credible and reliable in her assertion that she consumed alcohol only after she ceased to operate her motor vehicle,

b) she had no reasonable expectation she would be called upon to provide a sample of her breath after she ceased to operate her vehicle,

and

c) her blood alcohol concentration was less than 80 mg of alcohol in 100 mL of blood at the time she last operated her vehicle. [86] In my view, in order to successfully invoke sections 320.14(5) of the Code, an accused must demonstrate

a) through

c) above on a balance of probabilities. [ 51 ] In Lochead , the accused had driven off the road and claimed that she was waiting for assistance when she started to consume a bottle of wine that she had in her car after she abandoned any intention to free her vehicle from the ditch. The Court was not convinced by the defendant’s evidence due to lacking reasonableness or credibility. As a result, the defendant was found guilty of having the care and control of a motor vehicle within two hours after ceasing to operate it contrary to

section 320.14(1) (

b) of the Criminal Code . That Court went on to say: [107.3] After careful consideration of the issue, I concluded that the standard required of the defence is proof on a balance of probabilities. At its root, s. 320.14(5), and ss. 320.14(6) and (7) for that matter, are statutory exemptions from criminal liability.

While I appreciate that the presumption of innocence places the onus on the Crown to prove the accused’s guilt beyond a reasonable doubt, and that that burden never shifts to the defence for the entirety of a criminal trial, once the elements of the ‘equal to or over 80 offence’ have been made out, ss. 320.14(5) to (7) provide other means for an accused to excuse what would otherwise be criminal conduct. Who is better positioned to address:

a) when the operation of the conveyance ceased,

b) what the reasonable expectation of the accused was upon so doing, and

c) what his or her blood alcohol concentration would have been, than the accused him or herself? [107.4] Although it is hardly a perfect analogy, I draw some comfort from s. 16 of the Code in determining what the appropriate standard of proof required of the accused should be where an exemption from criminal responsibility is sought. [ 52 ] In the case of R v Preston , 2021 SKPC 43 [ Preston ], the defence introduced a series of correspondence with Alcohol Specialist and Forensic Toxicologist Mary-Ellen Scott. Ms. Scott provided two letters of opinion of Mr.

Preston’s blood alcohol concentration at the time of an accident that occurred around 4:00 p.m. and at the time of the first breath test at around 8:07 p.m. Both opinions were based on the scenario that Mr. Preston had one beer before the accident and several after the accident but before the breath test. Judge Green was not satisfied that there was a credible basis for the hypotheticals Ms. Scott based her opinions on and further indicated: [41] … I am not satisfied that: (1) after the accident, Mr.

Preston had no reasonable expectation he would be required to provide a sample of breath to the police; and (2) his alcohol consumption was consistent with his BAC disclosed in his breath samples and with him having had, at the time of the accident, a BAC of less than 80 mg%, and because I am otherwise satisfied that the elements of the offence have been proven beyond a reasonable doubt, he is found guilty on count #2. [ 53 ] From the Preston case, we see the approach taken in Deshpande is the accepted approach in the Saskatchewan Provincial Court.

The onus remains on the Crown to establish beyond a reasonable doubt that the defendant has a blood alcohol concentration over the legal limit at the time he was driving. Furthermore, the defendant has failed to raise an air of reality that his blood alcohol concentration was permissible when driving and that his blood alcohol concentration only rose to the level that was recorded by the qualified technician after he stopped driving. Mr. Preston attempted to create an air of reality to his claim that he only drank to excess after he stopped driving by providing opinion evidence from a toxicologist.

The opinion evidence of the toxicologist was not accepted due to the hypotheticals Ms. Scott was provided were based on evidence that was not credible. [ 54 ] In the current case, Mr.

Herring has not provided evidence from a toxicologist who may establish an air of reality that he only consumed alcohol after he returned home from the assault that occurred on the street. [ 55 ] It is not clear how his blood alcohol concentration became so elevated if he only consumed alcohol when he arrived home after the incident on the street that occurred at around 4:30 p.m. and before 5:29 p.m. when he was next seen sitting in the holding cell at the WPS. Mr. Herring suggested that he drank enough beer to get to a reading of 150 mg of alcohol in 100 ml of blood in under an hour.

[ 56 ] Mr. Herring was also inconsistent on how much he actually drank. First, he said he only had two beers and then later told the Court that he had eight beers or more when he went home from the incident on the street. Similarly, as in the Deshpande case, this Court is in no position to evaluate the consumption, absorption, and elimination of alcohol from a person’s body, much less capable of determining whether the evidence raises an air of reality that

section 320.14(5)(

c) can be met. The result is that this Court cannot accept that he consumed eight or more beers only after he returned home. [ 57 ] Mr. Herring asserted that he had a reasonable expectation to not be required to provide a breath sample. However, Mr. Beaton and his stepson both described Mr. Herring’s driving as erratic when he exited the fairgrounds and when he drove down the street before he stopped. They were both reliable witnesses who testified that Mr. Herring drove dangerously and erratically with his vehicle. On the basis of this erratic driving that was observed by witnesses, Mr.

Herring had a reasonable basis to believe he may be required to provide a breath sample to explain the manner of his driving. The Court does not accept his evidence that he did not know why someone was following and honking after him when his driving had caused concern for another driver. Mr. Herring’s own evidence that he left quickly after striking Mr. Beaton, rather than waiting for the police to attend the scene, further challenges his assertion related to his expectation.

The Court therefore does not accept his assertion that he had a reasonable expectation to not be required to provide a breath sample in light of this evidence. [ 58 ] Finally, based on the accepted evidence outlined above, the Court is not satisfied that Mr. Herring’s alcohol consumption was consistent with his blood alcohol concentration disclosed in his breath samples and with him having had, at the time of the incident on the street, a blood alcohol concentration of less than 80 mg. [ 59 ] The Court is satisfied that the elements of the offence in Count 3 have been proven beyond a reasonable doubt and that Mr.

Herring has not established an air of reality to a defence that exists in

section 320.14(5) of the Criminal Code . The Court therefore finds Mr. Herring guilty on Count 3 on Information ending 1454. _________________________ M.R. Brass, J