Her Majesty the Queen - v. -, 2011 SKPC 192

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2011 SKPC 192 Date: December 22, 2011 Information: 24354830 Location: Sandy Bay _____________________________________________________________________________ Between: Her Majesty the Queen - and - Ervin Arthur Shingler Appearing: J. Claxton-Viczko For the Crown G. Bendig For the Accused JUDGMENT M. M. BANIAK , J [ 1 ] Ervin Arthur Shingler stands charged that he did on or about October 29, 2008, at Sandy Bay, Saskatchewan did: 1) while his ability to operate a motor vehicle was impaired by alcohol did operate a motor vehicle and thereby cause the death of Skye Morin contrary to section 255(3) of the Criminal Code ;

2) having consumed alcohol in such a quantity that the concentration thereof in his blood exceeded eighty milligrams of alcohol in one hundred millilitres of blood did while operating a motor vehicle, to wit a Chevrolet Malibu cause an accident resulting in death to Skye Morin contrary to section 255(3.1) of the Criminal Code ; 3) while his ability to operate a motor vehicle was impaired by alcohol did operate a motor vehicle to wit a Chevrolet Malibu and thereby caused bodily harm to Megan McCallum contrary to section 255(2) of the Criminal Code ; 4) while his ability to operate a motor vehicle was impaired by alcohol did operate a motor vehicle to wit a Chevrolet Malibu and thereby caused bodily harm to James Morin contrary to section 255(2) of the Criminal Code ; 5) while his ability to operate a motor vehicle was impaired by alcohol did operate a motor vehicle to wit a Chevrolet Malibu and thereby caused bodily harm to Megan Morin contrary to section 255(2) of the Criminal Code ; 6) having consumed alcohol in such a quantity that the concentration thereof in his blood exceeded eighty milligrams of alcohol in one hundred millilitres of blood did while operating a motor vehicle, to wit a Chevrolet Malibu cause an accident resulting in bodily harm to Megan McCallum contrary to section 255(2.1) of the Criminal Code ; 7) having consumed alcohol in such a quantity that the concentration thereof in his blood exceeded eighty milligrams of alcohol in one hundred millilitres of blood did while operating a motor vehicle, to wit a Chevrolet Malibu cause an accident resulting in bodily harm to Megan McCallum contrary to section 255(2.1) of the Criminal Code ; 8) having consumed alcohol in such a quantity that the concentration thereof in his blood exceeded eighty milligrams of alcohol in one hundred millilitres of blood did while operating a motor vehicle, to wit a Chevrolet Malibu cause an accident resulting in bodily harm to Megan Morin contrary to section 255(2.1) of the Criminal Code ; 9) while his ability to operate a motor vehicle was impaired by alcohol did operate a Chevrolet Malibu contrary to section 253(1) (

a) of the Criminal Code ; 10) having consumed alcohol in such a quantity that the concentration thereof in his blood exceeded eighty milligrams of alcohol in one hundred millilitres of blood did operate a motor vehicle, to wit a Chevrolet Malibu contrary to section 253(1) (

b) of the Criminal Code . [ 2 ] At the outset, the Crown stayed counts 2, 6, 7, 8 and 10. The accused pled not guilty to counts 1, 3, 4, 5 and 9. The trial commenced at Sandy Bay on April 21, 2011, continued in Sandy Bay on September 8, 2011, and concluded at Prince Albert, on November 10, 2011. [ 3 ] The Crown called eight witnesses, one of whom was an expert witness. FACTS

a) Cst. Owen Olson [ 4 ] The Crown’s first witness was Cst. Owen Olson, the lead investigator on this case. He is a member of the RCMP; presently with two and a half years experience. On October 29, 2008, he had been an officer for about a month and Sandy Bay was his first posting.

[ 5 ] He testified that on October 29, 2008, at approximately 9:45 a.m. he received a call advising him of an accident with possible fatalities. When he arrived at the scene, an ambulance was already there. Three people - Megan Merasty (will hereafter be referred to as Megan McCallum), Megan Morin and James Morin - were at the scene, which was about seven kilometres from the Sandy Bay RCMP Detachment. Road conditions were good. [ 6 ] Following a conversation with James Morin, Cst. Olson learned that Ervin Shingler was the driver. He also noted that James Morin advised him that the girls were fighting in the car.

Cst. Olson proceeded to take photographs of the accident scene. He observed that Megan Morin was very distraught; Skye Morin showed no vital signs; James Morin smelled of alcohol on his breath; and Ervin Shingler was not around. No statements were taken from anyone at the accident scene or later that day. [ 7 ] Cst. Olson testified that the individuals at the scene were very distraught - a condition that could be consistent with people in shock. [ 8 ] Cst. Olson readily admitted that he had no accident reconstruction experience or expertise, except for the one day course at the RCMP Training Depot.

To him, it appeared that the vehicle was coming towards Sandy Bay, seemed to have veered off to the left side and rolled. He agreed, in cross-examination, that accidents occurred on this highway and that not all are due to alcohol consumption. He also agreed that the shoulders of the road had more gravel on them than usual and that the ditches were sharp.

b) Cst. Scott Lande [ 9 ] The second Crown witness was Cst. Scott Lande, an RCMP officer with three and a half years experience. At the time of this occurrence he would have been on the job for about a year. [ 10 ] He testified that he received a call from dispatch at 9:36 a.m., and that it took him about one-half hour to get to the accident scene which, in his opinion, was about five to seven kilometres from Sandy Bay. After learning that one person walked away from the accident, he spent about one-half hour trying to locate that person but was unsuccessful. He then helped Cst.

Olson with taking some measurements and he also took some pictures. He had no contact with the accused on October 29, 2008. [ 11 ] The following day, October 30, 2008, Cst. Lande obtained a statement from James Morin. He also took a statement from Matthew Listrom, the individual who picked up the accused on the side of the road and drove him to Sandy Bay. During cross- examination, Cst. Lande was asked: “Mr. Listrom reviewed the statement before he signed it?” Answer: “Yes.” Next question: “Listrom said that he did not observe any alcohol on Shingler.” Answer: “Yes”. [ 12 ] That same day, October 30, 2008, Cst.

Lande attended the health clinic in Sandy Bay and spoke with two nurses - Nurse Moore and Nurse Cannon. He testified that he wanted to find out if the accused had been drinking. He stated that the nurses did not have information about the accused’s impairment. Nurse Moore did not believe that the accused was behaving out of the ordinary. As a result of talking with Nurse Moore he came to the conclusion that she did not need to provide a formal statement.

c) Michelle Moore [ 13 ] The third Crown witness was Michelle Moore, who is a registered nurse and who, at the time of the trial, had been in Sandy Bay for four and one-half years. She testified that Ervin Shingler came into the clinic sometime after 9:00 a.m., crying and very upset - said that his girlfriend had been killed. [ 14 ] She proceeded to the accident scene and the accused later showed up there. When she arrived at the accident scene she noticed one girl in the middle of the road and another crying in the vehicle. The police were already at the scene when she arrived. In her opinion, the weather was normal and the road conditions were good.

[ 15 ] When the accused came to the accident scene he was very distraught, when he came back to the clinic he was examined. She testified that the accused had no apparent physical injuries but was very distraught. He was all over the place in terms of his actions and speech. He smelled of alcohol. She noticed little slurred speech. He was “not staggering, but not steady.” When asked how she would rate his intoxication on a scale of one to ten she replied that she would rate it at six to seven. When she asked him if he’d been drinking he said “Yes”.

He also advised her that the girls were fighting in the back seat. He turned around to break up the fight and hit the ditch. [ 16 ] In cross-examination, Nurse Moore agreed that the accused’s behaviour at the clinic was consistent with someone who was in shock. Further, her main priority at the accident scene was Megan McCallum - the accused did not have injuries which required immediate attention. She did not remember if she gave a statement to the police on October 29 or 30, 2008, but she did provide a statement to Cst.

Joe Dumont on January 12, 2011. [ 17 ] When it was suggested to Nurse Moore, in cross-examination, that she advised Cst. Lande that she did not have enough information to provide a statement she replied that she did not recall. Similarly, when it was suggested to her that she advised Cst. Lande that the accused did not behave out of the ordinary she did not recall making that statement. There was nothing in her notes to indicate that the accused was intoxicated. She also agreed with defence counsel that drinking is not the same as being intoxicated, and that a person in shock can be loud, rambling and unsteady.

The accused was given Valium on two occasions to help his distress. She did not believe that Valium exaggerates the effects of alcohol. [ 18 ] During re-examination by the Crown, Nurse Moore testified that the smell of alcohol and slurred speech is not consistent with being in shock, although being unsteady may be consistent with shock.

d) Megan McCallum [ 19 ] The fourth Crown witness was Megan McCallum. She described her activities of October 28, 2008, as best as she could remember them. It appears that the group of them (Colin Morin, Megan Morin, James Morin, Skye Morin, herself and the accused) started drinking at Skye Morin’s place. Eventually, they decided to drive to a picnic area, the Bay. While there she remembered fighting with her boyfriend, Colin Morin, and also with Skye Morin.

During the time at the Bay she testified that she was “blacking out” a condition she described as “...when you don’t remember what you’re doing.” [ 20 ] At some point her boyfriend had left and she next decided to get in the car and drive back to Sandy Bay. In her words “I was in the back with Megan and Skye was in the front with James.” The accused was driving. To the best of her recollection Skye was trying to fight her in the car, “...then I blacked out. After my blackout I was on the ground.” [ 21 ] According to her, everyone was drinking at the Bay.

She believed the accused was drinking beer, “Canadian I guess.” She could not recall if anyone was drinking on the way back to Sandy Bay. In her opinion, everyone in the vehicle was drunk except Ervin, the accused. [ 22 ] During cross-examination, Megan McCallum readily admitted that her memory of that day was patchy. She testified that Skye Morin was pulling her hair and punching her. She testified that the car started swerving during the fight, but did not remember if it swerved prior to the fight.

e) Megan Morin [ 23 ] The Crown’s fifth witness was Megan Morin. She testified that she and some friends were at her sister’s place (Skye Morin) playing dice and drinking coolers. This was around 10:00 o’clock at night. Then they went next door to Skippy’s place where they built a fire and drank some beer (Budweiser Lite). She, Skye, Megan, Skippy, Ervin, James, Colin and Chantelle were all at Skippy’s. Towards morning some of them (me, James, Megan, Skye and Ervin) decided to go to the Bay. There was some drinking at the Bay - whiskey from a small water bottle. She recalls trying to stop Megan and her sister, Skye, from fighting - “I guess that’s when we rolled.”

[ 24 ] In response to the question, “Would you consider yourself drunk?” she answered “Yes”. Her description of the others was as follows: - James: “High but not drunk”; - Megan: “High but not drunk”; - Skye: “She was high too”; - Ervin: “He was high too”. [ 25 ] During cross-examination she testified that she tried to stop Skye and Megan from fighting; that the entire altercation happened very quickly and that the accident occurred at the same time.

f) James Morin [ 26 ] The Crown’s sixth witness was James Morin. He also testified that the evening started out at Skye’s, moved next door to Skippy’s, and eventually ended up at the Bay. While at the Bay he went to the car “to crash for a while”. According to him, “Just the girls were drinking, and Colin had some too - sharing a half gallon bottle of whiskey. Ervin wasn’t touching the whiskey. I didn’t see him drinking.” He woke up when he heard yelling and fighting in the vehicle.

He testified that Ervin tried to stop the girls from fighting and the vehicle rolled. [ 27 ] In response to the questions, “how much beer did you have?” he answered “10 or 12”; “How about Megan and Megan?” Answer: “They were OK.” “Skye?” Answer: “Same.” “Ervin?” Answer: “He was good, wasn’t touching the stuff; had maybe a couple of beer - didn’t even finish those bottles. Ervin wasn’t drinking very much. The girls were more drunk.” [ 28 ] During cross-examination James Morin reiterated that in his opinion the accused was basically sober.

The accident occurred when the girls were fighting and the accused tried to break up the fight - “I saw Ervin trying to stop Skye. I saw him stretch his hand out to stop Skye as I was doing the same to Megan.” [ 29 ] He described the accused’s behaviour after the accident to be different than it was before the accident. He attributed this to the accused being in shock.

g) Misty Willets [ 30 ] The Crown’s seventh witness was Misty Willets. She testified that she was with the group that went to the Bay. Once there they made a fire and sat around talking. She believed that James was the driver going to the Bay and that Ervin was the driver coming back. According to her, no one was drinking at the Bay. [ 31 ] Defence chose not to cross-examine her.

h) Richelle Booker [ 32 ] The Crown’s last witness was Richelle Booker, a forensic specialist with the Royal Canadian Mounted Police, National Forensic Services in Winnipeg, Manitoba. She works with the Toxicology Services Section. Her Curriculum Vitae (Exhibit P2), and her three page report dealing with the effects of alcohol on driving (Exhibit P3), were filed without objection from the defence. She testified as an expert.

[ 33 ] Ms. Booker testified that increased alcohol consumption makes driving more difficult. According to her, there is no consensus at what level of impairment it is unsafe to operate a motor vehicle, but, in her opinion, “... at 80-100 (milligrams of alcohol in 100 millilitres of blood) all individuals are impaired in their ability to operate a motor vehicle.” [ 34 ] In her opinion, impairment is difficult to determine by looking at a person.

Posed a hypothetical question, describing a person who had slurred speech, was unsteady on his feet, and had foam on the mouth, she stated that slurred speech and unsteadiness would be consistent with impairment, but the foam on the mouth would not be. [ 35 ] She also testified that other causes could account for slurred speech and unsteadiness: “shock could cause slurred speech and unsteadiness.” [ 36 ] She described Valium as a suppressant drug.

When asked by defence counsel if the effects of Valium can mimic the effects of alcohol she answered: “Yes it has similar symptoms to those caused by alcohol.” Further, when asked what would happen if one combined Valium and some alcohol she answered: “First time Valium user and alcohol would cause greater impairment.” [ 37 ] In response to the question “Not any consumption of alcohol causes impairment?” She replied: “No, it has to be at a level to affect the brain.” [ 38 ] Finally, in her opinion, it is not possible to determine the volume of alcohol in one’s system by odour on the person’s breath. [ 39 ] Upon closing of the Crown’s case, the Court was advised that counts 4 and 5 would not be argued as there was no conclusive proof of bodily harm to James Morin and Megan Morin.

CROWN’S ARGUMENT [ 40 ] The Crown submitted that for impairment causing death the Crown has to establish impairment and that that impairment contributed or caused the death. The Court was referred to the Supreme Court’s decisions in R. v. Smithers ; R. v. Nette, and R. v. Stellato , [1] as the cases that summarize the law and establish the test with respect to impairment and significant contributory cause of death. [ 41 ] It should be noted that R. v. Smithers , dealt with a case where the accused was charged with manslaughter by kicking the deceased. The kick probably caused the deceased to choke on his vomit.

Experts testified that death may have resulted from other causes. On the issue as to the cause of death the Court concluded that there was substantial evidence to establish that the kick “was at least a contributory cause, outside the de minimis range, and that was all the Crown was required to establish.” [2] [ 42 ] R. v. Nette , dealt with a second degree murder charge. The accused tied a 95 year old woman’s arms and legs behind her back and applied ligature. The victim eventually died of asphyxiation. The trial judge expressed the test of causation as being “a significant contributory cause”.

The Court of Appeal as well as the Supreme Court dismissed the accused’s appeal. The Supreme Court went on to state that for all other homicides (outside of manslaughter, second degree and first degree murder) the test is “a contributing cause beyond the de minimis range.” [3] [ 43 ] R. v. Stellato , deals with the indicators of impairment and reference to it will be made in the course of this judgment. [ 44 ] The Crown argued that Megan Morin, Megan McCallum and James Morin all testified that the accused had something to drink.

Megan Morin testified that the accused was high; Megan McCallum that he drank beer prior to the accident, even though he wasn’t drunk; and James Morin that the accused had two beer, although he may not have drank them completely.

[ 45 ] The Crown relied heavily on Nurse Moore’s evidence, calling it critical and arguing that it not be minimized, or diminished. The Crown points to the accused’s behaviour after arriving at the clinic - crying, yelling and asking for help. At the accident scene she observed that the accused was slurring his speech, he was unsteady, and his mouth was foaming. [ 46 ] In analysing the expert’s testimony, the Crown submits that the accused’s behaviour was consistent with impairment. He was distracted. Drinking affects one’s ability to make clear judgment.

Trying to break up a fight while driving shows poor judgment. [ 47 ] In short, it was the Crown’s submission that counts 1, 3 and 9 have been proven and that, accordingly, the accused should be found guilty. [ 48 ] The defence argued that it is incumbent on the Crown to show or establish that the impairment was a contributing cause of the accident. However, there is no evidence as to the cause of the accident - the accident happened concurrently with the fight. Defence submits that there is no evidence of impairment. There is no accident reconstruction.

There is no evidence that the accused contributed to the accident. Megan McCallum testified that the accused was not drunk. Megan Morin testified that he was high, but did not equate being high with being drunk, and James Morin testified that the accused was not drunk, not even drinking. [ 49 ] Defence points to Cst. Olson’s observation that all of them exhibited some degree of impairment at the accident scene but that this could be consistent with shock. There was an absence of skid marks on the road.

The individual who picked up the accused did not observe any signs of intoxication. [ 50 ] Defence questioned why Nurses Moore and Cannon, when visited by Cst. Lande the day after the accident, had no information to provide about the accused. Nurse Moore advised Cst. Lande at that meeting that the accused was not behaving abnormally. Further she was confused as to when she provided the statement - not the next day as she first believed but actually two and a half years after the fact. Her notes have no symptoms of impairment - just that there was an odour of alcohol.

She spent one to one and a half hours at the accident scene and most of her attention was directed to the injured persons. She did not make any distinction in his behaviour from when she first saw him to when she was back at the clinic. Nurse Moore did not believe that the effects of Valium exaggerate the effects of alcohol, which is contrary to what the expert stated. And she could not explain why she told Cst. Lande the day after the accident that she had nothing to say about the accused.

ANALYSIS [ 51 ] The primary issue to determine firstly is whether the evidence proves beyond a reasonable doubt that the accused’s ability to drive was impaired at the time of the accident; and, secondly, whether, if impaired, this impairment was a “contributory cause beyond the de minimis range” to the fatal accident. [ 52 ] Failure to prove impairment in the first instance will render the second issue moot. Conversely, proof of impairment will necessitate an examination and analysis of the second issue. [ 53 ] Section 253(1) (

a) of the Criminal Code reads as follows: 253.

(1) Every one commits an offence who operates a motor vehicle or vessel or operates or assists in the operation of an aircraft or of railway equipment or has the care or control of a motor vehicle, vessel, aircraft or railway equipment, whether it is in motion or not, (

a) while the person’s ability to operate the vehicle, vessel, aircraft or railway equipment is impaired by alcohol or a drug.

[54] Section 255(3) states: 255(3) Every one who commits an offence under paragraph 253(1)(

a) and causes the death of another person as a result is guilty of anindictable offence and liable to imprisonment for life. [55] Both Crown and defence agreed that the evidence of impairment must be considered in the context of the test or principlesenunciated in R. v. Stellato (in dismissing the appellant’s appeal the Supreme Court adopted the reasons of the Ontario Court of Appeal - reported in (1993), (ON CA), 18 C.R. (4th) 127 (Ont.

CA).) [56] The Ontario Court of Appeal in Stellato, stated as follows:[4] In all criminal cases the trial judge must be satisfied as to the accused's guilt beyond a reasonable doubt before a conviction can beregistered. Accordingly, before convicting an accused of impaired driving, the trial judge must be satisfied that the accused's ability tooperate a motor vehicle was impaired by alcohol or a drug. If the evidence of impairment is so frail as to leave the trial judge with areasonable doubt as to impairment, the accused must be acquitted.

If the evidence of impairment establishes any degree of impairmentranging from slight to great, the offence has been made out. [57] Further, the Court in Stellato made reference to the “classic” signs of impairment: erratic driving, strong odour of alcoholicbeverage, glossy and bloodshot eyes, slurred speech and unsteadiness on one’s feet. [58] Since Stellato, various Courts have made reference to these signs of impairment and a considerable body of law has emergedas to how these signs are to be interpreted. [59] In R. v.

Landes, Klebuc J., as he then was, observed as follows:[5] 16 An opinion as to impairment, be it by the trial judge or a non-expert, must meet an objective standard of "an ordinary citizen" or a"reasonable person" in order to avoid the uncertainties associated with subjective standards, particularly when based on inferences. Tothat end a list of tests and observations has been developed for use by peace officers and courts in determining whether an accused'smental faculties and physical motor skills were impaired by alcohol to the degree of impairing the accused's ability to drive a motorvehicle.

Those observations and tests include: (1) evidence of improper or abnormal driving by the accused; (2) presence of bloodshot orwatery eyes; (3) presence of a flushed face; (4) odour of an alcohol beverage; (5) slurred speech; (6) lack of coordination and inability toperform physical tests; (7) lack of comprehension; and (8) inappropriate behaviour. 17 In my view, a trial judge must carefully review all of the reported tests and observations which inferentially support or negate anyimpairment of the accused's mental and physical capabilities, and then be satisfied beyond a reasonable doubt that the reasonableinferences to be drawn therefrom establish that the accused's ability was impaired to the degree prescribed by ss. 253 and 255 of theCriminal Code.

A piecemeal approach supporting or negating impairment is not permissible. (See R. v. Hall (1994), (SK CA), 125 Sask. R. 62) [60] What emerges is that the indicia of impairment cannot be considered in isolation - rather, the evidence has to be considered inits totality. It may be trite to say, but each case stands or falls on its own facts.

Similarly, symptoms can sometimes be explained: red orbloodshot eyes may be the result of tiredness, lack of sleep, contact lens irritation, or eye infection; erratic driving may be due to perilousroad conditions, mechanical trouble, sudden health problem, or mere negligence; unsteadiness, incoherence, the inability to answerquestions properly, and extreme anxiety are as consistent with trauma or shock as they are with impairment. [61] The Court in R. v. Hopkie, observed as follows:[6]

16 Neither the smell of alcohol nor redness of eyes, together or by themselves, can indicate impairment in the ability to operate a vehicle.

But in combination with a staggering walk, slurring of speech, knowledge of erratic driving, inability to reasonably answer questions, or perhaps any of these things, could give rise to a belief of impairment on reasonable and probable grounds. [ 62 ] In the present case, I will examine the impairment symptoms exhibited by the accused and analyse them in the context of the evidence as a whole. [ 63 ] Firstly, there is no evidence that the accused’s manner of driving was consistent with someone who was impaired. There was no evidence of speeding, stunting or erratic driving.

None of the witnesses who were in the vehicle expressed any concerns with the accused’s driving prior to the accident. The police officers at the scene did not observe any skid marks. It appears that the vehicle veered into the ditch and flipped or rolled. [ 64 ] The Crown argued that drinking affects one’s ability to make clear judgment and that trying to break up a fight while driving shows poor judgment.

While this may be true, it is also true that a display of poor judgment is as consistent with negligence at it is with impairment. [ 65 ] Secondly, Nurse Moore testified that the accused smelled of alcohol, had slightly slurred speech, was “not staggering but not steady” and admitted to drinking. There is no evidence when the drinking occurred, or how much was consumed. Nurse Moore gave the accused Valium on two occasions, but did not believe that this would in any way affect his behaviour in so far as exaggerating the effects of alcohol.

She did not notice any difference in the accused’s behaviour before or after taking the Valium. She also was of the view that shock would not cause a person to slur their speech. Yet, Richelle Booker, an expert, testified that the effects of Valium can mimic the effects of alcohol. Ms. Booker also testified that shock could cause slurred speech and unsteadiness. [ 66 ] Finally, Nurse Moore’s testimony was based on recollection of an event that occurred some two and a half years ago. She had no notes from October 29, 2008. She did not make a statement to Cst.

Lande when he visited the clinic on October 30, 2008, and according to Lande’s testimony she told him at that time that the accused did not behave abnormally. She initially believed that she provided a statement to the police on October 29 or 30, 2008. In fact, she did not provide a statement until January 12, 2011. [ 67 ] Analysing her evidence contextually, it seems that the only symptoms of impairment that could stand up to any scrutiny was that the accused smelled of alcohol.

However, odour of alcohol is not synonymous with impairment, and it has no relationship to the amount consumed. [ 68 ] When reviewing the Crown’s evidence relating to alcohol consumption by the accused, the common thread throughout is that he drank the least and was not drunk. Megan Morin testified that he was “high” but she did not equate being high with being drunk. James Morin testified that the accused may have had two beer, and that he may not have even finished those. According to Mr.

Morin, the accused did not “touch the stuff” when they were at the Bay. [ 69 ] Taking into account the entire evidence as it relates to the symptoms of impairment, I am left with reasonable doubt as to whether the accused’s ability to drive was impaired by alcohol. The evidence before me does not establish that the consumption of alcohol affected his driving or contributed to the accident.

Accordingly, I find the accused, Ervin Arthur Shingler, not guilty on all counts charged in Information #24354830. [ 70 ] Dated at Sandy Bay, in the Province of Saskatchewan, this 22 nd day of December, A.D. 2011. __________________________________ M. M. Baniak, J

[1] R. v. Smithers (1977), (SCC), 34 C.C.C. 427 (S.C.C.), R. v. Nette, 158 C.C.C. 486 (S.C.C.), R. v. Stellato (1994), (SCC), 31 C.R. (4th) 60 (S.C.C.). [2] R. v. Smithers, page 428. [3] R. v. Nette, page 487. [4] R. v. Stellato, (Ont. CA) para. 14. [5] R. v. Landes (1997), 161 Sask. R. 306 (SKQB), paras. 16-17. [6] R. v. Hopkie (1994), (SK KB), 126 Sask. R. 44 (SKQB), para. 16.