Her Majesty the Queen - v. -, 2010 SKPC 137

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2010 SKPC 137 Date: November 23, 2010 Information: 24312664 Location: Saskatoon _____________________________________________________________________________ Between: Her Majesty the Queen - and - William John Brady Appearing: Deb Black For the Crown Darren Armitage For the Accused JUDGMENT P.S. KOLENICK , J BACKGROUND [ 1 ] The accused is charged with having committed the following offences, on or about November 2, 2007, at or near Martensville, Saskatchewan:

1) While his ability to operate a motor vehicle was impaired by alcohol or a drug, did operate a motor vehicle, contrary to s. 253 (

a) and s. 255(1) 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 100 millilitres of blood, did operate a motor vehicle, contrary to s. 253 (

b) and s. 255(1) of the Criminal Code ; 3) Commit an assault on Trevor HANCHEROFF, contrary to s. 266 of the Criminal Code ; 4) Knowingly utter a threat to Trevor HANCHEROFF to cause death to Trevor HANCHEROFF, contrary to s. 264.1(1) (

a) of the Criminal Code . [ 2 ] The following issues arose during the course of the trial: Is the evidence for the Crown sufficiently credible to prove beyond a reasonable doubt the constituent elements of the allegation of common assault? Is the evidence for the Crown sufficiently credible to prove beyond a reasonable doubt that the accused had knowingly uttered a threat to the complainant? Is the Crown able to prove beyond a reasonable doubt an absence of evidence to the contrary, as contemplated in s. 258(1) (d.1) of the Criminal Code ? REVIEW OF THE EVIDENCE FOR THE CROWN Schaun Corbett [ 3 ] Mr.

Corbett testified that he is a resident of Martensville, Saskatchewan, employed in the north end of Saskatoon, and commutes daily on work days. His usual route is on Highway 12, which is a divided highway, two lanes each way, and a shoulder. Normally the trip should take roughly fifteen minutes. On this occasion, rush hour traffic was heavy. [ 4 ] On November 2, 2007, at approximately 5:30 p.m., he was on his way home, when he observed a dark navy blue Suburban in front of him, heading in the same direction. He had noted the driver’s license plate.

As he followed the motor vehicle for approximately two minutes, he saw it swerve twice, in what he regarded as a very dangerous manner, from one edge of the shoulder to the other. Thereafter, it had swerved somewhat within the same lane. Other motor vehicles were staying back, to avoid contact with it. [ 5 ] As Mr. Corbett passed the same motor vehicle in the adjacent lane, he looked at the driver. It was a lone male, with a beard, who appeared to be intoxicated, or almost like he was sleeping.

Once he had completed the pass, he could still see some swerving in his rear-view mirror, but not as extreme as it had initially been. [ 6 ] Mr. Corbett contacted the RCMP, because he was concerned for the safety of other drivers. He advised the police in the call of the general description of the motor vehicle, and that the driver had a beard, and not much more particulars. He had no further contact with the offending motor vehicle that day, and did not speak to the police at the scene. He estimated that the motor vehicle had been travelling at only 90 kph, while he had been going at the speed limit of 110 kph.

He had lost sight of the motor vehicle by the road access to the Martensville town garbage dump.

[ 7 ] His visual contact with the motor vehicle had been less than five minutes. During that time only a couple of motor vehicles had passed it and the rest stayed behind. [ 8 ] On the first day of the trial, the accused sat beside counsel at the counsel table. The witness claimed to have been able to identify him as the one responsible, referring on the record to the person with the beard. Further, he was somewhat familiar with that person from seeing him in the past in Martensville, operating a motorcycle, with a helmet. [ 9 ] In cross-examination Mr.

Corbett confirmed that the accused was not apparently attempting to strike any other vehicle, but the actions of that vehicle were very abrupt. He had seen one other vehicle pass, and a second one which had put on its brakes, because he could see brake lights. [ 10 ] He agreed also that his vehicle had only been beside the accused’s vehicle for roughly five seconds, and that on such a brief encounter he was unsure if there could have been others in the motor vehicle as well.

However, he insisted that he was able to identify the accused where he sat at the counsel table, having seen him ride a motorcycle in Martensville. He had not actually met the accused, but recognized his beard and face except that his beard looked fuller at trial. He could not say as to whether the accused might have other family members with beards. Trevor Hancheroff - The complainant [ 11 ] At approximately 5:00 p.m., the complainant was commuting home from Saskatoon to Martensville, following the vehicle being operated by the accused.

He observed the motor vehicle veer from one shoulder to the other, across two lanes of traffic, both shoulders, and onto the grass beside the highway. The vehicle continued weaving repeatedly to varying degrees, sometimes forcing other motor vehicles onto the shoulder. He counted fifteen incidents of weaving to some extent, before stopping the count. As the complainant passed the accused’s vehicle which was going at a slower speed, the accused’s eyes were almost closed, and he looked to be half asleep. At that time, he did not know the identity of the driver.

He pulled in front of the offending vehicle and began to slow down, hoping he could cause the accused to pull over and stop. The complainant did not have a cell phone, but he was anxious that the police be contacted, because of the danger to public safety. [ 12 ] As they approached Martensville, the complainant got out of his motor vehicle in a lane of traffic as the accused also approached and stopped. He was able to identify the accused in his evidence herein, as the alleged operator. When he approached the driver’s door, the accused rolled down his window. His eyes were red and glazed.

There was a smell of alcohol from him. He told the accused he was impaired, and should park his vehicle. However, he refused to co-operate and took his foot off the brake. As the vehicle started rolling, the complainant reached in and put it in park. The accused was angry and upset with that conduct. The complainant repeated that he should leave the vehicle in park, or else he would fight him to stop the accused from driving in that state. He was worried that someone would be killed. [ 13 ] The complainant had some past experience in martial arts.

When the accused refused to heed his instruction and proceeded to put his hand on the gear shift lever again, he struck him twice in the head with a hand palm heel. That apparently had stunned the accused to some extent. He also had placed him in an arm bar hold, and led him away from their motor vehicles to the parking lot of a nearby bar. He asked some of the people who had gathered there to call the police. They were apparently friends of the accused and did not co-operate.

As well, the accused had repeatedly threatened to kill the complainant telling him he was a dead man. [ 14 ] In the course of events, the complainant had grabbed the accused, put on an arm lock, and took him to the ground. However, the accused’s friends from the bar surrounded them, and one had a screwdriver. He was afraid he might get kicked in the head, so he let him get up and go. When he was distracted arguing with a female friend of the accused, he was struck by the accused in the left eye, cutting his head. [ 15 ] After that had occurred, the accused got into his motor vehicle and drove away from the scene.

Within roughly thirty seconds of his departure, a member of the RCMP arrived, followed by others. In the meantime, the complainant had written down the license number of the offending motor vehicle, and gave the first officer a brief overview of what allegedly had occurred.

[ 16 ] Shortly after that, the vehicle which appeared to be the one which the accused had been operating earlier, returned to the parking lot, with the accused in the passenger seat, and someone else driving. The accused stated that the other person now driving had been the driver earlier. Both of them were shouting death threats, and saying they would hunt down the complainant and kill him. They were both dressed liked bikers with coveralls, head rags, and beards.

As such, the complainant was truly concerned that they might well follow through on their threats. [ 17 ] Regardless, the accused had displayed very red glazed eyes, smelled of alcohol and his speech was slurred. As well, he had been driving in a dangerous manner, under the influence. The complainant was concerned that he would kill someone. [ 18 ] In cross-examination, the complainant confirmed the sun was still up at the material time, and it was not twilight yet. As well, he had not tried to cut off the accused’s motor vehicle at anytime during their encounter.

Further, the complainant agreed he may have inadvertently struck the accused as they rolled on the ground. However, the injury to the complainant had not occurred accidentally at that time. [ 19 ] He also offered some further description of the new driver when they returned, he noted the person was six feet tall, had receding hair, was very skinny and had crooked front teeth. As noted earlier, both he and the accused had coveralls, head scarves and beards. Murray Louden [ 20 ] Murray Louden identified the parties as having been involved in the struggle which he had observed on his way home from work at Saskatoon.

They appeared to be struggling over a set of car keys, and ended up on the ground. The complainant had said that the accused should not be driving, the accused said words like “I’m gonna get you” to the complainant, during their struggle. [ 21 ] In the course of their encounter, the accused had said he would get into his truck and park it, but instead he drove off. He was gone roughly eight minutes and then returned with his brother operating the motor vehicle instead of the accused. [ 22 ] Mr. Louden was also aware of signs of impairment in the accused.

He had observed the accused was unsteady on his feet, incoherent and speech which was slurred. However, he had not known either of the parties previously, and did not hear any more conversation between them. [ 23 ] In cross-examination Mr. Louden confirmed that he had not seen either of them injured, nor did he see them strike each other. As well, although the accused had said he knew where the complainant lived and would get him, he did not say “I’ll kill you”, or words to that effect. He agreed also that the injuries that each of them had suffered had occurred as they struggled on the ground.

Further, the accused had confirmed that the driver of the motor vehicle when they returned to the parking lot was his brother. He had not heard the two of them utter any threats as alleged by the complainant, although he had been as much as two hundred feet away from them at the time. Murray Long [ 24 ] On November 2, 2007, Mr. Long was driving out to Martensville with his spouse, for the purpose of visiting his parents. En route he encountered two motor vehicles, a car and a truck, which seemed to have some connection with each other.

He had not noticed anything unusual about the driving of either of their vehicles. However, there did appear to be potential problems between them. Therefore he dropped off his spouse and returned to the scene. He was able to identify the accused herein, but not the complainant. He had not known either of them previously. [ 25 ] Regardless, he returned to the street and parked within twenty metres, rolled down his window and observed, hoping things

would not get worse. They were yelling and swearing at each other, both were extremely angry. The accused drove off in his truck, but thereafter returned in roughly ten minutes. When the vehicle did return, there were two men in it, and they confronted the complainant. [ 26 ] In cross-examination Mr. Long confirmed that, although it was apparent there had been angry gestures between the occupants of those two motor vehicles on the highway, neither had engaged in extreme swerving. There had been nothing noteworthy about the driving.

In that regard, he had a clear view of both motor vehicles, from some distance. [ 27 ] When they were at Martensville and stopped, however, the complainant had reached into the accused’s motor vehicle. Thereafter, they had gone to the parking lot of the gas station, and begun to fight. Again, at that location, the complainant had thrown the first punch, and they ended up on the ground in a struggle. When they got off the ground, the accused got into his truck and drove away from the scene. The complainant had not struck the accused again at that time.

However, on two occasions, when the parties had become physical, the complainant had thrown the first blow. As well, they were yelling at each other, but Mr. Long was unsure what was said. Constable Chad Mehl [ 28 ] Constable Mehl of the RCMP had received a call from the detachment regarding this alleged matter, and arrived at the scene at roughly 5:30 p.m. In the course of events, he ended up speaking with the accused. He was very angry with the complainant and accused him of committing an assault.

The officer noted some signs of impairment on the accused, including slurred speech, red glassy eyes, and the smell of alcohol on his breath. He assisted Constable Sanford to get the accused in handcuffs and into a police vehicle. He was placed under arrest for impaired operation, and also uttering threats. For the purposes of making the Intoxilyzer demand, the officer had confirmed from the complainant that the accused had been the driver. The complaint from the public of a possible impaired driver had been received at 5:35 p.m. He was secured in the police vehicle at 5:45 p.m.

As a result of his investigation, the officer concluded that the accused could not operate his motor vehicle because of alcohol consumption. Therefore, in addition to being placed under arrest for uttering threats and impaired operation, he also read to the accused an Intoxilyzer demand, police warning and Charter rights, all of which the accused understood. [ 29 ] They proceeded to the Warman detachment where the accused was put in contact with Legal Aid. He was on the telephone for two or three minutes, and declared he was satisfied with the consultation.

In due course he provided Intoxilyzer samples of 150 milligrams percent and 140 milligrams percent at 6:31 p.m. and 6:56 p.m. respectively. He was served with the appropriate documents the following day. [ 30 ] The accused had been required to remain in lock up until he was sober. Initially they had hoped to release the accused to the custody of his spouse. However, he began to express anger about the complainant again, and what had allegedly occurred between them.

Therefore he was kept in lock up to avoid the risk of a further encounter between those two. [ 31 ] In cross-examination Constable Mehl confirmed that he had not seen any fight by the time he arrived at the scene, only a crowd of people. When he spoke to the complainant, he was excited, but not angry, and there was some injury to his forehead. The accused was angry with the complainant, and had some injuries to his face. Those may have been the result of the two palm heel strikes which the complainant had applied to the accused at the start of this alleged encounter.

He agreed that it is unusual for the average citizen to confront an accused in the manner which the complainant had. Constable Shelley Sanford [ 32 ] Constable Sanford of the RCMP Warman detachment confirmed that she had arrived at the scene at the time and had observed Constable Maxwell attempting to place handcuffs on the accused, in the hope of securing him in the police vehicle. He was resisting that effort, so Constable Sanford joined in the attempt, and was able to get the handcuffs in place. It took three officers to accomplish placing him in the police vehicle.

He was resistant to their efforts, but they were able to succeed. She noted at the time that the accused had eyes which were red and glossy, as well as slurred speech. He was angry. She had not seen anyone operating the motor vehicle which was at the scene.

[ 33 ] In cross-examination Constable Sanford advised that the accused was angry at the complainant rather than the RCMP, but had not been compliant in their efforts to take him into custody. As well, his eyes were red, glossy and unfocused, and his speech was slurred. EVIDENCE FOR THE DEFENCE Dr. Steven Richardson [ 34 ] Dr. Richardson, a pharmacologist, was qualified as an expert on the absorption and elimination rates of alcohol by the human body, the effects of alcohol on brain function and behaviour, as well as the calculation of blood alcohol concentration. [ 35 ] The accused had consulted with Dr.

Richardson and provided particulars of alcohol consumption in the hours leading up to providing the Intoxilyzer samples in issue. As a result, the accused filed two letter reports from Dr. Richardson. [ 36 ] One of the reports dated March 28, 2008, involved a hypothetical two hundred and fifteen pound male who drank six beer between 1:00 p.m. and 5:00 p.m., would have a blood alcohol concentration of roughly .05 milligrams percent. The person could have the odour of beer on his breath, likely have red or bloodshot eyes, and may have a flushed face, but would not be impaired by alcohol.

After a subsequent consumption of ten ounces of 40 percent alcohol from 5:20 p.m. to 5:35 p.m. his possible blood alcohol concentration would be roughly .049 milligrams percent at 5:35 p.m. and 170 milligrams percent at 6:32 p.m. [ 37 ] The report also considered the effect of the Intoxilyzer results of 150 milligrams percent at 6:32 p.m. having consumed the said ten ounces of 40 percent alcohol from 5:20 p.m. to 5:35 p.m., to have been .035 milligrams percent at 5:15 p.m.

Therefore, both extrapolations resulted in blood alcohol concentrations which were more or less consistent with the Intoxilyzer results and the accused having a blood alcohol concentration below the legal limit at the time of driving. [ 38 ] The second report from Dr. Richardson dated October 10, 2008, confirmed his opinion that the majority of people eliminate alcohol at a rate greater than twenty milligrams percent per hour, and that it is not appropriate to use a calculation factor of ten milligrams percent per hour. [ 39 ] In cross-examination Dr.

Richardson confirmed that he had not been provided with any specifics of the pattern of consumption for the first six beer period. If the timing and intensity of those six beer was different than he had used in his calculation, that could result in a different blood alcohol concentration. As well, he had no information as to the accused’s actual elimination rate. Hypothetically as well, in order to get to a blood alcohol concentration of roughly 170 milligrams percent at 6:22 p.m., there would have had to be consumption of twelve and one-half beer between 1:00 p.m. and 5:00 p.m.

The result of that consumption would be someone falling down drunk, obviously intoxicated, cognitive slowness, slow reaction time, staggering and slurring of words. Likewise, a blood alcohol concentration of 150 milligrams percent at 6:35 p.m. would have resulted in more intense signs of impairment at the time of driving (5:15 p.m.) that could include bloodshot eyes, slurred speech, staggering and swerving which is not consistent with a blood alcohol concentration of .05 milligrams percent. In re-examination Dr.

Richardson explained that the pattern of drinking for the first six beer can be a problem, and skew the result, if at anytime the blood alcohol concentration falls to 0 milligrams percent as a result of the timing of consumption of the six beer. [ 40 ] Of course, the accused had not yet testified as to his consumption particulars, and was in the courtroom to hear all of Dr. Richardson’s testimony and opinion. William Brady - The Accused

[ 41 ] The accused indicated that on the date in issue, he started work at 7:00 a.m. At noon, he was finished for the day, and went with his friend, Derek McCarthy, from work to Kelly’s Kafe for lunch, and to socialize. By the time he departed at roughly 4:30 or 5:00 p.m., he had five glasses of Miller Genuine Draft. He believed that each glass was approximately the equivalent of a regular size bottle of beer. In his experience, drinking five glasses of beer in those circumstances did not affect him too badly, and there was no problem driving.

His friend, Derek McCarthy, had remained with him throughout the time he was at Kelly’s Kafe. [ 42 ] On route in his motor vehicle, heading for home on Highway 12, he became aware of the complainant’s motor vehicle for the first time. That motor vehicle was driving aggressively and too close. As such, the accused’s motor vehicle may have swerved somewhat in an effort to avoid the complainant’s aggressive driving from behind. [ 43 ] The complainant had not passed the accused’s motor vehicle as they made their way along Highway 12.

Once they were at Martensville, however the complainant cut in front, stopped, and blocked the accused’s motor vehicle from proceeding further. After both motor vehicles were stopped, the complainant reached into the driver’s window of the accused’s motor vehicle and attempted to grab the keys. They both ended up standing outside of the motor vehicle. The complainant continued with his aggression, wrestling the accused to the ground and punching him twice. Thereafter, the accused got back into his motor vehicle and drove to his residence, roughly four or five blocks from the scene.

Regardless, the accused denied that there had been any nature of erratic driving on the highway, except some possible swerving to avoid the complainant’s motor vehicle. [ 44 ] At home, the accused went into the garage where his brother and a friend were located. He was pretty angry. Therefore he took out a 26 ounce bottle of whiskey from the fridge in the garage and drank roughly half of it, over approximately fifteen minutes. After that, his brother drove him back to the scene. There was a gathering of people, and he spoke to the police, who had also arrived.

He was placed under arrest and transported to the Warman detachment for the Intoxilyzer samples which were provided. [ 45 ] The accused denied that he had struck the complainant whatsoever. Rather, the complainant had hit him twice and had been shouting at the time that the accused was an impaired driver. [ 46 ] In cross-examination the accused denied that he could have pulled over and stopped on route, because the complainant’s driving was very aggressive and he did not want to have the complainant confront him with the complainant’s possible road rage.

The accused denied also that he had blocked the complainant from passing, and said he was doing his utmost to avoid the complainant’s aggressive driving. [ 47 ] He also confirmed that he had only had a few beer and was not too intoxicated to operate a motor vehicle. Further, while it was not possible to estimate the blood alcohol concentration based on consumption, he denied his judgment had been impaired by alcohol at the material time. [ 48 ] In re-examination the accused confirmed his belief with the consumption particulars which he had at the time, that had caused him to believe he was okay to drive.

Derek McCarthy [ 49 ] Mr. McCarthy confirmed that he had been at Kelly’s Kafe with the accused, between roughly 12:30 p.m. and 4:30 p.m. as a friend from work. Each of them had four or five beer, and he could recall that they were matching rounds as they socialized as a group. [ 50 ] In the past he has seen the accused when the accused was intoxicated, and that was not the situation here. There was no staggering or slurring of words. He would not have allowed the accused to drive, if there had been any concerns. Ian Winrow

[51] Mr. Winrow confirmed that he had been doing some carpentry in the accused’s garage. At that time as well, the accused’sbrother was present. The accused and he are friends. [52] The accused entered the garage, and appeared to be angry and perturbed. He took a bottle of hard liquor out of the fridge inthe garage and drank from it. It appeared he was swigging it back pretty good. After twenty or twenty-five minutes, the accused’sbrother drove him back to the scene. At the time, the accused did not appear to be swaying from alcohol before the consumption. Aswell, his driving was not remarkable.

At times though, he is not a good driver because he does not pay enough attention. ANALYSIS [53] As noted, in general the burden is on the Crown to prove the constituent elements of the offence beyond a reasonable doubtwith credible evidence, and the accused is presumed innocent until proven guilty. In assessing credibility, the Court is guided by theprinciples restated in R. v. McKenzie (P.N.) (1996), (SK CA), 141 Sask. R. 221 (Sask. C.A.) (from R. v.

Rose (A.)(1992), (BC CA), 20 B.C.A.C. 7 (B.C.C.A.)), para. 4: First, if you believe the accused, obviously you must acquit; Secondly, if after a careful consideration of all of the evidence, you are unable to decide whom to believe, you must acquit; Thirdly, if you do not believe the evidence of the accused but you are left in reasonable doubt by it, you must acquit; Fourthly, even if you are not left in doubt by the evidence of the accused, you must ask yourself whether, on the basis of the evidencewhich you do accept, you are convinced beyond a reasonable doubt by that evidence of the guilt of the accused. [54] The determination of credibility does not involve the Court opting for one version of events or the other.

Rather, the Crown must prove that its evidence is credible, and there is no onus on the accused whatsoever in that respect. Even if the Court prefers the evidence of the Crown, it must still consider whether the evidence for the defence raises a reasonabledoubt. Therefore, credibility of the material witnesses needs to be considered, in that context. The Charge of Common Assault [55] The constituent elements for the allegation of common assault are located in s. 265(1)(

a) of the Criminal Code, whichprovides as follows: 265.

(1) A person commits an assault when (

a) without the consent of another person, he applies force intentionally to that other person, directly or indirectly; [56] It is apparent that the complainant was compelled at the time to confront the accused on the issue of his impaired driving. Heopted to proceed on that basis, rather than being patient and allow the police to arrive. He had initiated the physical aggression bystriking the accused twice in the head with a martial arts blow and also took him down to the ground.

The parties remained in closequarters to each other, during which the complainant claims he was struck with one blow to the head by the accused. The accuseddenied that he had struck the complainant. It would appear that there were other supporters of the accused in close proximity at thematerial time who may have struck the blow in the heat of the moment. [57] Regardless, the Court has concluded that the Crown was unable to prove beyond a reasonable doubt that the complainant and

the accused had not merely engaged in a fight, for which the complainant was a willing participant. He had consented to the applicationof force which had occurred at the material time, including the blow that he claims the accused had struck in the course of theirencounter. Therefore the accused is not guilty of the charge of common assault contrary to s. 266 of the Criminal Code. The Charge of Uttering Death Threats [58] I had occasion to consider the appropriate legal principles on this subject in R. v. Janzen (P.J.) (2006), 2006 SKPC 30, 281 Sask. R. 98, and noted the following, starting at para. 18: [18] Specifically, s. 264.1(1)(

a) of the Criminal Code provides as follows: 264.1

(1) Every one commits an offence who, in any manner, knowingly utters, conveys or causes any person to receive a threat (

a) to cause death or bodily harm to any person; ... [19] Obviously every case will depend on its particular circumstances. In R. v. Jaeb (C.) (2000), (SK PC), 197Sask. R. 296 (Sask. Prov. Ct.), I had dealt with a series of alleged threats made to different complainants. In general, the judgment statedas follows, at para. 25: [25] In R. v. Clemente (V.F.), (SCC), [1994] 2 S.C.R. 758; 168 N.R. 310; 95 Man. R. (2d) 161; 70 W.A.C. 161; 91C.C.C. (3d) 1, the court had occasion to consider and interpret the wording of s. 264.1(1) of the Criminal Code.

In that regard, Cory J.,stated the following at page four: Under the present section, the actus reus of the offence is the uttering of threats of death or serious bodily harm. The mens rea is thatthe words be spoken or written as a threat to cause death or serious bodily harm; that is, they were meant to intimidate or to be takenseriously.

To determine if a reasonable person would consider that the words were uttered as a threat the court must regard them objectively; andreview them in light of the circumstances in which they were uttered, the manner in which they were spoken, and the person to whomthey were addressed. Obviously, words spoken in jest or in such a manner that they could not be taken seriously could not lead a reasonable person toconclude that the words conveyed a threat. [59] When one considers the complainant’s evidence in that context, he had testified the accused had threatened repeatedly to killhim and that he was a dead man.

None of the other witnesses who had testified regarding the alleged circumstances which had occurredbefore the police arrived confirmed hearing a death threat. However, presumably they had made their observations from differentvantage points, with varying opportunities. [60] The only witness who offered anything of a confirmatory nature in that regard was Murray Louden. He heard words like “I’mgonna get you” and “I know where you live”. Regardless, these were difficult circumstances for anyone to recall and relate what theaccused may or may not have said on the spur of the moment, including the complainant.

The Court is suspicious that the accused mayhave conducted himself as alleged by the complainant. However, negative commentary which did not amount to a death threat shouldnot be stigmatized as criminal misconduct, in the absence of more confirmatory evidence on the issue. As such, the accused is not guiltyon the count of utter death threats, contrary to s. 264.1(1)(

a) of the Criminal Code.

The Charges of Over .08 and Impaired Operation [ 61 ] In regard to the count of over .08 contrary to s. 253 (

b) of the Criminal Code , Dr. Richardson had noted that the particular pattern of drinking in the first six beer could potentially skew the accuracy of his opinion. Presumably the other defence evidence regarding those particulars have settled those concerns and it is no longer an issue, at least in that narrow context. [ 62 ] In any event, in regard to the issue of evidence to the contrary, reference is made to the following pertinent portions of s. 258(1) of the Criminal Code : s. 258(1) . . . (

c) where samples of the breath of the accused have been taken pursuant to a demand made under subsection 254(3), if . . . (ii) each sample was taken as soon as practicable after the time when the offence was alleged to have been committed and, in the case of the first sample, not later than two hours after that time, with an interval of at least fifteen minutes between the times when the samples were taken, (iii) each sample was received from the accused directly into an approved container or into an approved instrument operated by a qualified technician, and (iv) an analysis of each sample was made by means of an approved instrument operated by a qualified technician, evidence of the results of the analyses so made is conclusive proof that the concentration of alcohol in the accused’s blood both at the time when the analyses were made and at the time when the offence was alleged to have been committed was, if the results of the analyses are the same, the concentration determined by the analyses and, if the results of the analysis are different, the lowest of the concentrations determined by the analyses, in the absence of evidence tending to show all of the following three things - that the approved instrument was malfunctioning or was operated improperly, that the malfunction or improper operation resulted in the determination that the concentration of alcohol in the accused’s blood exceeded 80 mg of alcohol in 100 mL of blood, and that the concentration of alcohol in the accused’s blood would not in fact have exceeded 80 mg of alcohol in 100 mL of blood at the time when the offence was alleged to have been committed; . . . (d.1) if samples of the accused’s breath or a sample of the accused’s blood have been taken as described in paragraph (

c) or (

d) under the conditions described in that paragraph and the results of the analyses show a concentration of alcohol in blood exceeding 80 mg of alcohol in 100 mL of blood, evidence of the results of the analyses 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 of alcohol in 100 mL of blood, 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 of alcohol in 100 mL of blood at the time when the offence was alleged to have been committed, . . . .

[ 63 ] In regard to that matter as noted, the accused had filed as an exhibit, a letter of opinion dated March 28, 2008, from Dr. Richardson, which included the following portions: The pBAC at 5:15 p.m., of the average 215 lb male, who, from about 1:00 p.m. to 5:00 p.m., had consumed six 341 mL bottles of 5% alcohol beer, would be about 56 mg% (i.e., 0.05). This person would have the odor of beer on his breath, and likely would have red or bloodshot eyes and may have a flushed face, but he would not be impaired by alcohol.

After the subsequent consumption of 10 ounces of 40% alcohol spirits from 5:20 to 5:35, his pBAC would be about 49 mg% at 5:35 p.m., and 170 mg% at 6:32 p.m. The pBAC at 5:15 p.m., of the average 215 lb male who had a Certificate BAC of 150 mg% at 6:32 p.m., and who had consumed ten ounces of 40% alcohol spirits from 5:20 to 5:35 p.m., would be about 35 mg%.

If this person eliminated alcohol at the exceptionally low rate of 10 mg% per hour, his BAC at 5:15 would be about 24 mg%. [ 64 ] However, the Crown has alleged that the other evidence for the defence did not, in some of its important aspects, confirm the factual foundation upon which the opinion of Dr. Richardson was based. Reference was made to the judgment in R. v. Krowicki , 2003 SKPC 53 (Sask. Prov. Ct., Chicoine PCJ as he was then).

The Court concluded that there were discrepancies between the letter of opinion which had been filed, and basic facts upon which the expert purported to rely as a foundation for the opinion. As such, the Court concluded that the evidence to the contrary was not reliable, noting as follows, commencing at para. 28: [28] I also note that the expert’s testimony is also based on a hypothetical person having the same physical characteristics as the accused, including weight of 190 pounds. On the videotape submitted in evidence the accused tells Constable Bird that he weighs 175 pounds.

At the trial, the accused stated that he weighs 190 pounds and that he weighed the same amount on the date in question. This is a material characteristic which could affect the blood alcohol level calculations made by Dr. Rockerbie. [29] Dr. Rockerbie also gave expert evidence on the number of bottles of beer that a person weighing 190 pounds would have to consume to reach a blood alcohol reading of 200 mg of alcohol per 100 ml of blood. This opinion also assumes that the alcohol was consumed during a particular period of time and at a particular pace.

I am not able to determine from the conflicting evidence given by the accused whether the time periods and other assumptions used by Dr. Rockerbie have any application to the case at bar. Since Dr.

Rockerbie was not called to testify in person at the trial, I am also unable to draw the inference that the accused would necessarily have exhibited all of the symptoms which he describes as “stage 3” in his report without knowing whether alcohol tolerance is taken into account. [30] In the circumstances, I conclude that the defence evidence in respect of the number of beers consumed and the weight of the accused is not a reliable foundation for the opinion of the expert in respect to the blood alcohol concentration of the accused at the material times.

Therefore, the Certificate of Analyses is admitted in these proceedings as proof of the blood alcohol concentration at the time when the offence is alleged to have been committed. Since the Crown has proven all of the elements of the offence beyond a reasonable doubt under s. 253 (

b) of the Criminal Code , I find the accused guilty of this charge. [ 65 ] Applying those principles to the evidence here, they do appear to be the same nature of concerns as the Crown has alleged. Among those omissions is driving which allegedly started at 5:15 p.m., when the accused claimed they had departed at 4:30 p.m or 5:00 p.m. The opinion is based upon consumption of six beer, whereas the accused claimed he had five beer. Further, the opinion had referred to a two hundred and fifteen pound male, and there was no evidence whatsoever as to the accused’s weight.

The opinion had also referred to drinking between 1:00 p.m. and 5:00 p.m., which does not appear to have been specified as having occurred in that specific time frame. [ 66 ] The accused has submitted that the Court should be able to estimate the accused’s weight, or take judicial notice of some of those aspects, but it would not be appropriate to proceed on that basis. [ 67 ] Therefore, the Court has concluded that the evidence which purported to be evidence to the contrary is not based on factors which are sufficiently reliable to form a foundation for that purpose.

As such, the Certificate of Analyses will be regarded as a full exhibit, and the accused is guilty as charged on the over .08 count, contrary to s. 253 (

b) of the Criminal Code . However, the Court will enter a conditional stay of proceedings on the impaired operation count contrary to s. 253(

a) of the Criminal Code . This stay will

become absolute in the event that no appeal is taken. __________________________ P.S. Kolenick, J