Her Majesty the Queen - v. -, 2018 SKPC 46

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2018 SKPC 046 Date: August 31, 2018 Information: 24518694 Location: Yorkton _____________________________________________________________________________ Between: Her Majesty the Queen - and - Jesse Burnett Appearing: Frederic Fisher For the Crown David Rusnak , QC For the Accused JUDGMENT R. GREEN , J I. INTRODUCTION [ 1 ] September 27, 2017 was not a good day for Jesse Burnett. At 8:45 p.m. that evening, he was riding his motorcycle through the Qu’Appelle Valley. He swerved to miss a moose and drove off the edge of the highway and down a steep embankment.

His leg was broken, and he eventually stopped other drivers for help. Cst. Steven Wilkinson of the Esterhazy RCMP was called to investigate, and about two hours later located Mr. Burnett at the Esterhazy hospital. Based on his inquiries to that point, the officer believed Mr. Burnett had been operating a motorcycle while impaired by alcohol and demanded he provide a blood sample. That was given by him at 11:54 p.m., and the sample contained a blood alcohol concentration (BAC) of 211 mg% (as per the Certificate of an Analyst filed as Exhibit P- 2).

[ 2 ] Mr. Burnett was charged with driving his motorcycle while over the legal limit of .08 and while his ability to do so was impaired by alcohol, contrary to ss. 253(1) (

b) and 253(1)(

a) of the Criminal Code , respectively. He was, as well, charged under the Traffic Safety Act, SS 2004 c. T-18.1 [ TSA ], with driving an unregistered motorcycle and failing to report an accident. He entered a guilty plea to the first TSA charge and the Crown withdrew the second. [ 3 ] In response to the charge of exceeding .08, Mr. Rusnak asserts a so-called “post-driving consumption” defence. While accepting the accuracy of the readings from Mr. Burnett’s blood sample, he argued that this result was due to the alcohol Mr.

Burnett consumed after his accident, which was absorbed into his blood by the time his blood sample was taken at the hospital, and therefore his BAC was not above 80 mg% at the time he operated his motorcycle. [ 4 ] Section 258(1) (d.1) of the Criminal Code sets out this defence.

If a sample of the accused’s blood shows a BAC of over 80 mg% and if the Certificate of an Analyst showing the BAC is otherwise admissible under s. 258(1) (d), as is the case here, evidence of the results of the blood analysis is proof that the concentration of alcohol in the accused's blood at the time when the offence was alleged to have been committed exceeded 80 mg%, in the absence of evidence tending to show that the accused's consumption of alcohol was consistent with both: (

i) a concentration of alcohol in the accused's blood that did not exceed 80 mg% at the time when the offence was alleged to have been committed, and (ii) the concentration of alcohol in the accused's blood ...at the time when the sample was taken; (emphasis added) [ 5 ] As a result, the two issues to be determined are:

(1) Whether there is credible evidence which tends to show that Mr. Burnett’s consumption of alcohol was consistent with both: (

a) not having a BAC of over 80 mg% at the time of driving; and (

b) the BAC reading contained on the Certificate of an Analyst; and

(2) Whether there is proof beyond a reasonable doubt that Mr. Burnett’s ability to operate his motorcycle was impaired by alcohol. [ 6 ] The witnesses for the Crown were: Cst. Wilkinson; Cst. Mohamed Rama of the Broadview RCMP; Chad and Kim Robinson, of Bengough, who came upon Mr. Burnett after his accident; Joseph Major, who drove Mr. Burnett to his home in Dubuc after the accident; Joey Duchek, a long-time friend of Mr. Burnett’s who drove him from Dubuc to the hospital in Esterhazy; and alcohol expert Tanya Ames. The defence witnesses were: Mr.

Burnett; his spouse Jennifer Wickland; Mark Briggs, a friend who brought gasoline to him when he ran out of fuel near Whitewood; and alcohol expert Mary Ellen Scott. II. BACKGROUND [ 7 ] Cst. Wilkinson received a complaint this day at 9:00 p.m. of a motorcycle accident at the south end of the Qu’Appelle Valley on Highway 9. He checked with the Esterhazy hospital to see if any patients had just arrived, but none had. Twenty-five minutes later, when he arrived at the accident scene, he observed a motorcycle off the shoulder on the west side of the highway, partway down a steep embankment.

He spoke to Chad and Kim Robinson, who had arrived on the scene after the accident, and who had assisted the driver, Mr. Burnett. They said Mr. Burnett was injured and had been driven from the scene by another passerby, Mr. Major. [ 8 ] After contacting the Broadview RCMP detachment for assistance, because the accident was technically in their area, Cst. Wilkinson drove to the Esterhazy hospital. There, he spoke to Joey Duchek, who said he had just brought Mr. Burnett to the hospital. At 11:30 p.m. Cst. Wilkinson spoke to Mr. Burnett in the emergency room. Mr.

Burnett told him that he had been in a motorcycle accident, that he had consumed two beer and that he had been given morphine. The officer said Mr. Burnett seemed sleepy but he made no inquiries about the effect of the morphine on him. The officer could smell alcohol on Mr. Burnett’s breath, and read the blood

demand to him. Mr. Burnett initially refused, but then spoke to a lawyer by telephone and agreed to provide a blood sample. [ 9 ] Mr. Robinson was driving through the Qu’Appelle Valley this evening with his family. He saw Mr. Burnett, waving his arms in the ditch. Upon stopping, he found Mr. Burnett sitting by the side of the road, smelling of alcohol. Mr. Burnett said he had broken his leg in a motorcycle accident. Mr. Robinson could see the motorcycle down the steep embankment. Given the drop-off, Mr. Robinson believed Mr. Burnett would likely have been killed if he had rolled to the bottom of the embankment.

He offered to take Mr. Burnett to the hospital, but Mr. Burnett refused, saying that he wanted to go home to his spouse. He also did not want the Robinsons to call an ambulance or the police. Mrs. Robinson said Mr. Burnett told them he swerved to miss a moose and went into the ditch, but she could not see any moose tracks near the accident scene. [ 10 ] Cst. Rama arrived at the accident scene after 9:30 p.m. No one else was present. He used the headlights from his vehicle and a flashlight to investigate the scene in the dark. He took a series of pictures at the scene (Exhibit P-3).

It appeared to him that the motorcycle driver had steered into the oncoming (westbound) lane and had not made it back into the original (eastbound) lane, before veering into the west side ditch. He said it was an area where wildlife would not be unexpected. [ 11 ] Mr. Major was returning to his workplace in Esterhazy this evening. He offered Mr. Burnett a ride. Mr. Burnett, who was injured, did not want him to call 911, but asked Mr. Major to drive him home to Dubuc so his spouse could drive him to the hospital. He described Mr. Burnett as a small guy who was coherent but clearly in pain. When he arrived at Mr.

Burnett’s house, he went and knocked on the door and told Ms. Wickland what had happened. [ 12 ] Mr. Duchek received a telephone call from his wife while he was returning from an Alcoholics Anonymous meeting in Esterhazy. As a result, he drove to Mr. Burnett’s house in Dubuc and found Mr. Burnett sitting in the passenger seat of his spouse’s car. He subsequently drove Mr. Burnett to the Esterhazy hospital. [ 13 ] Mr. Burnett testified that he left his house on his motorcycle at 7:00 p.m. He planned to take a route south on Highway 9 to Highway 247 and then north on Highway 638 back to Dubuc.

He had packed, in his backpack, twelve cans of beer with a plan to deliver these to his friend Tommy Bowdin, who lived on this route. When he approached Highway 247, his motorcycle started to sputter, and he accessed his reserve fuel tank. His motorcycle had no gasoline gauge, and he did not realize that he was low on fuel. He said he had siphoned some gasoline out of it for a motorbike at his home that afternoon and did not realize how much he had taken out. He abandoned his plan to deliver the beer, and, rather than turning onto Highway 247, drove south towards Whitewood to purchase gasoline.

He did not think he was going to make it to Whitewood, and as a result called a nearby farmer, Mark Briggs at 7:47 p.m., and then again at 7:56 p.m. (as confirmed by the telephone records in Exhibit D-3). Mr. Briggs brought a jerry can of gasoline out to Mr. Burnett, and he took this fuel from him and then drove to Whitewood. [ 14 ] At the service station, Mr. Burnett filled his tank and called Ms. Wickland at 8:31 p.m. to advise that he had been delayed and was on his way home. He left shortly thereafter.

It was almost dark and he was concerned that he only had a learner’s licence which did not allow him to drive a motorcycle in the dark and, further, that he was driving an unregistered motorcycle as he had not renewed the plates. [ 15 ] Mr. Burnett rode north on Highway 9, and, at the south end of the Qu’Appelle Valley, came upon a moose in the middle of the road. He swerved to miss the moose and locked up his brakes. As a result, he went into the ditch. He thought he was unconscious for a minute or two.

In addition to injuries to his ribs and his head, his leg was broken (as confirmed by the x-rays which were filed as Exhibits D-4 and D-5). He lay in the ditch and eventually dragged himself up to the highway. There, he spoke to the Robinsons and to Mr. Major, who drove him home. When asked why he did not go directly to the hospital or have an ambulance take him there, he said he wanted to get home to his family and then go to the hospital, and that he did not want his family to have to pay for an ambulance. III. IS THERE A REASONABLE DOUBT THAT MR. BURNETT WAS OVER THE LEGAL LIMIT WHEN HE DROVE HIS MOTORCYCLE?

The evidence of post-accident consumption of alcohol

[ 16 ] Mr. Duchek said Mr. Burnett is a small man, and has typically weighed between 100 and 120 pounds. On the date of the trial, he estimated Mr. Burnett weighed 130 pounds. Mr. Burnett said he weighed 136 pounds at the date of the trial, compared to between 120 and 125 pounds on the date of his accident. Mr. Briggs has known Mr. Burnett for many years and said that he was always skinny and weighed between 120 and 140 pounds. Despite Cst. Wilkinson’s estimate that Mr. Burnett weighed 175 pounds, having observed Mr.

Burnett at the trial and having heard his account of his weight at and before the trial, I accept and find that on September 27, 2017 his weight was at the upper end of the range he described, which was 125 pounds. I, as well, accept that Mr. Burnett did not have supper this evening and that he left for his motorcycle ride with an empty stomach. [ 17 ] Mr. Burnett said that, after the accident, he remained near his motorcycle and drank two beer from his knapsack. One of these beer foamed when he opened it.

Eventually, given his location, he realized no one was going to stop, and he dragged himself up to the shoulder of the highway. At that point, all he wanted was to get home and then to the hospital. Regarding not reporting the accident, he said Mr. Major told him others at the accident scene were reporting the accident to the police. [ 18 ] Mr. Burnett said, after he arrived home with Mr. Major, he was crying and scared. He sat in his spouse’s vehicle for about fifteen minutes, and while there drank two Molson cans of beer. After Mr. Duchek arrived at his house he asked Mr.

Duchek to go into the house and get him some more beer. Mr. Duchek returned with three Canadian beer and gave them to him. Mr. Duchek then drove him in Mr. Duchek’s truck to the Esterhazy hospital, a distance of 28 kilometres. Over this distance, Mr. Burnett said he drank, or in his words “slammed”, the three beer . [ 19 ] Mr. Burnett said, earlier this day, he had one beer at 1:00 p.m. and then half a beer at 3:00 p.m. He said he had no supper before he left home on his motorcycle ride, and further said that from the gas station in Whitewood to where he had his accident took about fifteen minutes. Mr.

Burnett, as well, admitted that he got off work early on September 26 th after a night shift, and then had some beer to drink before 10:00 a.m., at which point he slept for four hours. He stated that from the time he awoke at 2:00 p.m. that day until 2:00 a.m. the next day (September 27 th ), he had between 8 and 10 beer. He admitted that he has a criminal record for a break and enter in 1998 and an over .08 in 2008. [ 20 ] When asked why he would drink three beer on the way to the hospital, Mr. Burnett responded: that’s what a person does when they are an alcoholic.

He admitted that he has had a problem with alcohol in the past. That said, he maintained that he drank two beer at the accident site, two beer at Dubuc and three beer en route to the hospital in Esterhazy, for a total of seven. I take from his evidence that he, in part, did so because of the pain he was in. [ 21 ] Regarding the alcohol found at the accident scene, Mr. Robinson said there were cans of beer around the motorcycle in the ditch, which were unopened but punctured by the accident. Cst. Rama found nine cans of beer which were on the ground near the motorcycle.

These cans were damaged, apparently by the collision, and none were open. [ 22 ] Mr. Duchek said that, when he found Mr. Burnett in Ms. Wickland’s car around 10:00 p.m., he was in pain and was drinking a beer. Mr. Duchek said, in the past, he had used alcohol as a pain killer and he clearly believed Mr. Burnett was doing so at that point. He, at Mr. Burnett’s request, went and got three Molson Canadian beer from Ms. Wickland and then drove him to the Esterhazy hospital. He said Mr. Burnett drank the three beer en route. [ 23 ] Ms. Wickland said Mr. Burnett left for a motorcycle ride at 7:00 p.m.

She looked at the clock when he departed. She said he did not eat supper with the family that evening as he was in the garage, in her words “puttering”. She did not think Mr. Burnett was under the influence of alcohol when he left on his motorcycle ride, as there was no smell of alcohol about him when he departed. He put a dozen Canadian beer from their fridge into his backpack, which she understood he would drop off at Tommy Bowdin’s residence. [ 24 ] Ms. Wickland next heard from Mr. Burnett at 8:31 p.m., when he called from Whitewood.

She was busy at that point dealing with her daughter who had come from school with lice. She next heard from him at 9:33 p.m., when he called her cell phone to say that he had been in an accident and that he was getting a ride home with Mr. Major. He was not slurring his words but seemed hysterical and scared. When he arrived home, he was in a lot of pain and was crying in the car, and, in her words, “stunk a little of beer”. She intended to take him to the hospital, but could not find a babysitter. Instead, she arranged for Mr. Duchek, who was returning from Esterhazy, to take him.

She said that, while waiting for Mr. Duchek, Mr. Burnett sat in her vehicle and asked her for two beer, which she retrieved from their house. She then watched him drink these two beer. When Mr. Duchek arrived, he helped Mr. Burnett into his truck, and then came to her front door and asked for some beer for Mr. Burnett. She said Mr. Duchek took three beer.

[ 25 ] Ms. Wickland then found a babysitter, and drove to the Esterhazy hospital. She saw Mr. Burnett in the emergency ward and said he was in a bad condition and looked different than when she had seen him earlier that evening. He, as well, sounded different than when she had spoken with him at 8:31 p.m. In cross-examination, Ms. Wickland claimed that she remembered the events of this date well, despite not making notes. She also denied that Mr. Burnett was an alcoholic. The expert evidence [ 26 ] Ms.

Ames is a Forensic Toxicology Reporting Scientist for the RCMP in their National Forensic Laboratory in Edmonton, She was qualified as an expert, and allowed to give opinion evidence, in an area described as: the analytical procedures utilised in the analysis of samples for alcohol and other similar volatile compounds; the physiology of alcohol in the human body with respect to the absorption, distribution and elimination of alcohol from the body; the pharmacology of alcohol as it relates to alcohol in the human body; the effects of alcohol in the human body; the ability to safely operate a motor vehicle; and the retrograde and anterograde estimates of BAC. [ 27 ] Ms.

Ames analysed the blood sample taken from Mr. Burnett, and measured his BAC to be 211 mg%. Calculating back to a time of driving of 8:45 p.m., she estimated, assuming no intervening consumption of alcohol, that Mr. Burnett’s BAC at the time of driving would range between 242 and 274 mg%. [ 28 ] Ms. Ames said the maximum BAC is usually obtained by a person thirty minutes after drinking has stopped. She described impairment as a decrease in sensory and mental functioning to an extent that the operation of a motor vehicle is unsafe.

In her opinion, most individuals are impaired at 50 mg%, almost all are at 80 mg% and all are at 100 mg%. She said levels of 150 mg% or higher mean an individual is intoxicated or drunk, with outward manifestations such as staggering or slurring, and that a level of 250 mg% constitutes severe intoxication. She said driving is a divided attention task, and that alcohol impairs the skills required to perform this task. As a result, the likelihood of being in a collision increases exponentially as the BAC in a person’s blood increases. [ 29 ] Ms.

Scott is a toxicology expert, who previously worked for the RCMP, and was qualified as an expert and allowed to give opinion evidence in an area virtually identical to that of Ms. Ames. Based on an average elimination rate of 10 to 20 mg% per hour, Ms. Scott agreed with Ms. Ames’ retrograde calculation of Mr. Burnett’s BAC at the time of driving (8:45 p.m.). She said, however, that this calculation assumed no intervening consumption of alcohol by Mr. Burnett after the accident and before the blood sample. When intervening consumption is considered - assuming that Mr.

Burnett consumed seven regular strength beer after the time of driving at 8:45 p.m. - she calculated his BAC at both 7:00 p.m. and 8:45 p.m., reading back from a BAC of 211 mg% at 11:54 p.m. She opined that, for an individual of 125 pounds with this drinking pattern, his BAC at 7:00 p.m. would have been between 0 and 47 mg%, and, at 8:45 p.m., it would have been between 0 and 19 mg%. [ 30 ] Ms.

Scott said that any alcohol consumed prior to driving would not affect her retrograde calculation, as she was calculating back from a known BAC at the hospital to the time of driving by deducting the effects of alcohol said to have been consumed after driving. While she acknowledged that alcohol consumed by Mr. Burnett between four and thirty-six hours before he began operating his motorcycle at 7:00 p.m. on September 27 th could have resulted in a BAC above 0 mg% at that time of driving, she said that in her view the effect of such previous consumption would be small.

Considering her opinion on this, and the retrograde nature of her calculation to the time of driving, I am not satisfied that any alcohol previously consumed by Mr. Burnett, which I find occurred between four and thirty-six hours before he drove his motorcycle, would have a significant effect on Ms. Scott’s calculations or opinions. [ 31 ] In conclusion, Ms. Scott confirmed that the pattern of consumption and time frame testified to by Mr. Burnett would not be inconsistent with the BAC reading of 211 mg% taken at 11:54 p.m., albeit the reading would be at the upper end of the theoretical range. Ms.

Scott, as well, said that drinking on an empty stomach does have an effect on the rate of absorption of alcohol in the blood, as does a person’s weight, as a lighter person will have a higher per cent of alcohol in their blood when consuming the same amount of alcohol as a heavier person. My analysis

[ 32 ] Mr. Fisher argued that the evidence of Mr. Burnett’s post-driving consumption of alcohol - from Mr. Burnett, Mr. Duchek, Mr. Briggs and Ms. Wickland - was not credible. Specifically, he argued that:

(1) Mr. Burnett was dazed after the accident and his recollection of his drinking was not believable;

(2) Mr. Burnett’s decision not to agree to calling 911 or going directly to the hospital showed a consciousness of guilt that suggested he was driving while impaired;

(3) Mr. Burnett’s witnesses were his close personal associates, and were trying to help him through their testimony. In particular, he submitted Ms. Wickland’s evidence that she looked at the clock at 7 p.m. when Mr. Burnett left and that Mr. Burnett was not an alcoholic (in the face of his admission of this) was not believable;

(4) Mr. Burnett’s evidence that a beer he drank in the ditch was foaming would affect the calculations; and

(5) At best, the evidence supported a consumption of three to four, and not seven, beer consumed by Mr. Burnett after the accident, a level that would put him over 80 mg% at 8:45 p.m. [ 33 ] Taken together, the prosecutor submitted that there was not credible evidence which tended to show that Mr. Burnett’s consumption of alcohol was consistent with both a BAC of 211 mg% at 11:54 p.m. and that he was not over 80 mg% when he operated his motorcycle. I disagree. [ 34 ] In my view, Mr. Burnett’s evidence of his alcohol consumption is plausible, and taken together with the evidence of Mr. Duchek, Mr. Briggs and Ms. Wickland, I do not reject Mr. Burnett’s evidence. That is because:

(1) Mr. Briggs was in my view a credible witness, and I accept his account that when he brought gasoline for Mr. Burnett to the highway and stood close to him, Mr. Burnett was not showing any signs of alcohol consumption or impairment;

(2) Much of the timing of Mr. Burnett’s motorcycle ride and accident was corroborated by the telephone records he produced, and the evidence of the other witnesses;

(3) While it does concern me that Mr. Burnett told Cst. Wilkinson that he had two beer, this was after he had been given morphine which could well have affected what he said, and as a result I do not reject his overall account of consumption;

(4) Having watched Mr. Duchek, Mr. Briggs and Ms. Wickland testify, while they are close to Mr. Burnett, I am not satisfied that they colluded in their account at this trial or that they falsified their evidence to help him. Specifically, I accept Ms. Wickland’s evidence about when Mr. Burnett left on his motorcycle, given the other memorable events with her daughter of the day, and her account of the two beer she saw him drink while waiting for Mr. Duchek;

(5) Similarly, I accept Mr. Duchek’s evidence, given as a Crown witness, about the three beer he took with him to Esterhazy that he saw Mr. Burnett consume before they arrived at the hospital;

(6) Cst. Rama saw nine unopened but punctured cans of beer near Mr. Burnett’s motorcycle. That is not inconsistent with Burnett having consumed two other beer at roadside from the twelve that I accept he put in his backpack;

(7) While I accept that Mr. Burnett did a number of ill-advised, and - dare I say - foolish things this night, his reluctance to call 911and to go directly to the hospital could in my mind have been because of the effects of the accident and his knowledge that he wasdriving an unregistered motorcycle in the dark with a learner’s driver’s licence, rather than because he was driving while impaired; and

(8) I am not satisfied that one beer foaming before he drank it would have any significant effect on Ms. Scott’s calculations oropinions. [35] Because I do not reject Mr. Burnett’s evidence about the timing and amount of beer he drank after his accident or his weightthat day, and because I accept the calculations and opinions of Mary Ellen Scott, based on that drinking pattern and his weight and emptystomach, I am satisfied that there is credible evidence which tends to show that Mr. Burnett’s consumption of alcohol was consistentwith both a BAC of 211 mg% at 11:54 p.m. and Mr.

Burnett not being over 80 mg% when he was operating his motor cycle, between7:00 p.m. and 8:45 p.m. As a result, I hold a reasonable doubt on his guilt on the over .08 charge. III. IS THERE A REASONABLE DOUBT THAT HIS ABILITY TO OPERATE HIS MOTORCYCLE WAS IMPAIREDBY ALCOHOL? [36] The Supreme Court of Canada in R v Stellato, (SCC), [1994] 2 SCR 478 approved the following test forimpairment: 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. [37] Applying this standard, and given that I accept that Mr.

Burnett swerved to miss a moose on the highway and then drank asubstantial amount of alcohol after his accident, I have a reasonable doubt that he was impaired by alcohol when he operated hismotorcycle. [38] Cst. Wilkinson met Mr. Burnett at the hospital over two hours after the accident. He could smell alcohol on Mr. Burnett’sbreath, and said he looked tired and that his speech was a little slurred. Given the evidence of both experts, and the BAC readingsobtained, there is no doubt Mr. Burnett was intoxicated at the hospital.

But there was not in my view sufficient evidence of impairmentat the accident scene, or prior to that, to ground a conviction. [39] Mr. Robinson believed Mr. Burnett must have suffered a concussion, given the nature of his accident. He engaged in smalltalk with him, and said Mr. Burnett told a couple of different stories about how he had rolled his motorcycle, and as well said he hadspent most of the day drinking. Mrs. Robinson described Mr. Burnett as confused, and recalled him saying that he wanted to go to theYorkton hospital. She could find no moose tracks in the area, and said Mr.

Burnett’s clothes and breath smelled of alcohol when theyfound him. Mr. Major said Mr. Burnett smelled of alcohol and, during their drive back to Dubuc, Mr. Burnett asked him for a beer,which he refused. I view all of this evidence as equivocal: as consistent with a person who was dazed from, and had beer spilled on himas a result of, an accident and who then drank beer in the ditch after the accident, as it is consistent with a person who was impaired byalcohol at the time of the accident.

As well, I am not satisfied there was a reasonable prospect of seeing tracks from a moose in the darkof night at this accident scene. [40] By contrast, prior to the accident, Mr. Briggs was standing within five feet of Mr. Burnett for five to ten minutes. He noticedno sign that Mr. Burnett had been consuming alcohol, and believed Mr. Burnett was sober at that point. He was not slurring his wordsand had no trouble understanding the conversation. He was a friend of Mr. Burnett’s, and had seen him intoxicated in the past, but it wasclear to him that Mr. Burnett was not under the influence of alcohol at this point.

As well, he said Mr. Burnett had no trouble operatinghis motorcycle when he departed towards Whitewood. I accept Mr. Brigg’s evidence, and, as well, I accept Ms. Wickland’s opinion thatMr. Burnett was not under the influence of alcohol when he left for his motorcycle ride this evening, whether or not she was realisticabout Mr. Burnett being an alcoholic.

[ 41 ] Taken together, I am left with a reasonable doubt that Mr. Burnett’s ability to operate his motorcycle was impaired by alcohol. IV. CONCLUSION [ 42 ] For the reasons stated above Mr. Burnett is found not guilty of impaired driving (count #1) and driving over .08 (count #2). _______________________ R. Green, J