R. v. Schinkel, 2015 MBPC 22

R. v. Schinkel Citation No. 2015 MBPC 22 THE PROVINCIAL COURT OF MANITOBA BETWEEN Her Majesty the Queen ) Sheila R.M. Seesahai, for the Crown ) - and – ) ) Kristen Schinkel ) Saul B. Simmonds, for the Accused ) ) Judgment delivered: ) April 15, 2015 MOAR, P.J. Introduction [1] The accused, Mr. Schinkel (“accused”) stands charged that he did operate a motor vehicle with a blood alcohol level thatexceeded eighty milligrams of alcohol in one hundred millilitres of blood contrary to section 253(1)(

b) of the Criminal Code of Canada.He is also charged on a second information arising from the same incident that he did possess cocaine contrary to section 4(1) of theControlled Drugs and Substances Act. [2] The Crown elected to proceed summarily and the trial of both matters originally began before me in Lac Du Bonnet ProvincialCourt and thereafter continued on a number of dates here in Winnipeg. [3] Although I had hoped to complete this decision some time ago that unfortunately did not occur.

The fact this one day matterultimately involved a number of additional trial dates, beyond the one that had originally been scheduled, and were spread out over asignificant period of time created its own difficulties with the consideration of the evidence adduced. [4] In addition there were many other lengthy matters that this court heard subsequent to the evidentiary portion of the caseconcluding which led to this matter being delayed. [5] The specific issue before this court considers the change in legislation occasioned by the introduction of Bill C-2, the TacklingViolent Crime Act, S.C. 2008, c. 6.

The contents of the Act specific to the case at bar were considered by the Supreme Court of Canada inthe case of R. v. St. Onge Lamoureux 2012 SCC 57 , [2012] S.C.J. No. 57. [6] Before dealing with the legal issue before the court I will examine the evidence that is material to that determination. In anearlier ruling I examined the evidence of the police witnesses the Crown produced and will reproduce the portions of their evidence thatare germane to the issue now before the court.

CROWN CASE Trevor Louis Jenvenne [7] On the date of the incident Constable Jenvenne (“Jenvenne”) had been a member of the Royal Canadian Mounted Police(“RCMP”) for some twelve years. [8] On this date he was on patrol and noted an all-terrain vehicle (“ATV”) crossing the Winnipeg River bridge on highway 313.That ATV turned onto Old Point Road and soon after doing so he decided to initiate a traffic stop that occurred at 2355 hours. [9] As he was approaching the ATV, the officer observed a backpack on the back of the vehicle that had one can of beer that wasobservable by the officer.

Upon interacting with the driver and sole occupant, Jenvenne detected an odour of liquor coming from theperson of the accused at which point in time he made an approved screening device (“ASD”) demand. That demand became the subjectof contention by the accused and in a prior decision I found it to be a lawful demand. [10] The accused was moved from the ATV for the purpose of the ASD test being administered and while walking to the policevehicle there were no issues noted with his footing.

A fail reading was obtained from the ASD test and at 2359 hours the accused wasplaced under arrest for impaired operation of a motor vehicle.

[ 11 ] The officer continued with the formal arrest during which time the accused did request an opportunity to speak with counsel. He was also advised of the breath demand and police caution and made no reply when asked if he understood what was being said to him. That being said, Jenvenne believed the accused understood all that was said to him at the time of his arrest. [ 12 ] They departed the scene at 0015 hours and arrived at the detachment at 0017 hours. The accused was placed into contact with his counsel of choice at 0037 hours and spoke with him until 0103 hours.

At 0103 hours the testing procedure was explained to the accused by the breath technician, Constable Rouse (‘Rouse”), and thereafter the accused subsequently provided two breath samples. [ 13 ] At 0137 hours the results of the tests were explained to him and at 0156 hours he was served with a copy of the Certificate of Analysis.

He was then released into the custody of a sober adult at 0200 hours. [ 14 ] Aside from the odour of liquor and the presence of the one beer in the back pack there were no other signs of impairment noted by the officer. [ 15 ] Throughout his involvement with the police the accused was noted to be cooperative. Jacob Peter Rouse [ 16 ] Rouse advised that at the time of his testimony he had been a member of the RCMP for about three years.

Although assigned to perform general patrol duties on this date, he was specifically tasked with the role of being the breath technician for the tests that were performed on the accused. Rouse indicated that he received his designation as a breath technician on November 22, 2010. [ 17 ] Prior to receiving the accused from Jenvenne at the detachment, Rouse testified that he was aware of this accused as he had attended to the traffic stop earlier that evening. He was unsure as to why he had attended and recalled that upon his arrival the accused was already in the police vehicle with Jenvenne.

Although he did open the door to the police vehicle, at which point he noted a strong odour of alcohol within it, he was clear that he had no interaction with the accused at the scene. [ 18 ] Rouse began his observation of the accused at 0105 hours and during this time they engaged in brief conversation during which time he noted the accused’s speech to be slurred and his eyes were red. [ 19 ] Prior to beginning the testing Rouse provided instructions to the accused as to what was expected of him and at 0106 hours the first sample was analyzed and a reading of 150 milligram percent was obtained.

Soon after a second breath sample was analyzed at 0138 hours and that produced the same reading of 150 milligram percent. [ 20 ] At 0148 hours Rouse turned the accused back over to Jenvenne and then produced an evidence ticket (Exhibit 5) which he signed.

With respect to the Certificate of Analysis (Exhibit 4) that was produced, Rouse explained that there was a typographical error pertaining to the dates noted and confirmed the proper dates of the tests during his viva voce testimony. [ 21 ] In terms of signs or symptoms of impairment observed on the accused, Rouse again stated he noted slurred speech, red bloodshot eyes and the face of the accused was flush. [ 22 ] Rouse further clarified that when the accused first arrived at the detachment he had assisted Jenvenne in the search of the accused.

During a search of the accused’s wallet this officer located a dime baggie containing a white substance that was later confirmed to be cocaine (Exhibit 3). [ 23 ] In cross-examination Rouse confirmed the ASD test had already been administered to the accused when he arrived at the traffic stop. [ 24 ] In terms of specific interactions with the accused, Rouse confirmed his first notation of time at the detachment was 0029 hours when he was cataloging and searching the belongings of the accused.

The observations made of the accused’s eyes and speech had occurred at 0124 hours and at 0138 hours he had turned the accused back over to Jenvenne. [ 25 ] During his interaction with the accused Rouse agreed that he did not make a notation of asking any questions pertaining to where he may have been prior to the traffic stop occurring. DEFENCE CASE Kristen Kyle Schinkel [ 26 ] On the date of the incident the accused testified he had been out riding (“quadding”) on an ATV for much of the day with a group of about fifteen people.

One of the individuals riding was John Dancyt (“Dancyt”) who was an individual he had known for about twenty years. [ 27 ] The group initially met at the Shell gas station in Lac Du Bonnet and planned on riding along an old track bed up to Seddons Corner.

Prior to setting out that afternoon the accused had purchased a six pack of Budweiser beer that he intended to consume during the course of this ride. [ 28 ] The group began their ride at about 1300 hours and about twenty minutes in they came upon the first of many washouts. [ 29 ] The accused explained that a washout occurs in two instances, one being where a culvert may have been removed to permit the water to flow or secondly where water has backed up and washed the track bed away. [ 30 ] This washout was pretty deep and necessitated that each member of the group go through it one ATV at a time.

This process took some time to complete and it was here the accused consumed the first of his beers. In reference to that beer, and the others he consumed that day, the accused advised the court that he does not consume the entirety of the can but rather always leaves the last sip as

he does not like the taste of it. [ 31 ] The ride then continued on for about forty minutes at which time the group came upon another washout. The same routine of one ATV at a time was again utilized at this washout. Once again the group remained at that location for some period of time during which the accused consumed another beer in the same manner as he had previously done so. [ 32 ] The group continued and eventually arrived at Seddons Corner which is located on highway forty-four.

Some of the riders purchased gasoline from that location before the group then continued on with the ride, now travelling down Agassiz Road back towards Lac Du Bonnet. [ 33 ] After riding for a period of time the group came upon another major washout. It was here that the accused consumed his third beer. When asked specifically about Dancyt and whether he was also consuming alcohol during this ride, the accused indicated a belief he was but could not say how much. [ 34 ] This pattern of riding, coming upon a washout and consuming a beer continued on for the duration of the ride.

According to his testimony, the accused had consumed his fifth beer about an hour prior to arriving at the Dancyt residence that evening. [ 35 ] As was noted by Jenvenne, when he initially approached the stopped ATV he observed and seized one can of beer from a backpack on the back of the ATV the accused was driving. The contents of that can were poured out in the presence of the accused. [ 36 ] In terms of the weather that day, the accused described it as being sunny and a little cool.

There was not much snow other than in the bushes surrounding the trails they followed. [ 37 ] After the ride concluded the accused accompanied Dancyt back to his residence, arriving at 2030 hours, where they remained for the remainder of the evening. [ 38 ] When they arrived there was no one else in the residence. The accused advised that Dancyt’s wife was away for the weekend and had prepared a casserole for them to cook. About forty-five minutes later the casserole was ready and they then sat down to eat. [ 39 ] After dinner they both sat around and watched television for the remainder of the evening.

Dancyt had continued to consume mixed drinks of rum throughout the evening. The accused maintained he did not consume any alcohol while at the Dancyt residence save for the drink that he consumed as he was leaving to drive home. [ 40 ] At about 2330 hours the accused advised he was feeling tired and decided to return to his parent’s home. He proceeded to put on his winter clothing and went outside to start up his ATV to permit it time to warm up.

About ten to fifteen minutes later he returned back into the residence to get his helmet for the ride home. [ 41 ] When he returned into the residence he observed that Dancyt had a drink in his hand. He was handed the glass and told by Dancyt to have one for the road. With that he then consumed the entirety of the glass before then putting on his helmet for the ride home. He described the taste as being strong as he “gulped it down” and realized as that was occurring that he was drinking rum with no mix.

At the time he took the drink he had anticipated it would have been a mixed drink and was surprised. [ 42 ] Immediately after having consumed that drink the accused left on his drive home. As he crossed the bridge and entered onto a gravel road he observed a vehicle approaching him. That vehicle turned on its high beams and as it continued towards him he realized that it was a police vehicle when it turned on its overhead lights. [ 43 ] The accused indicated the stop by police occurred about five minutes after he had left the Dancyt residence.

The lone officer approached him and asked for his driver license and vehicle registration, which he provided. The officer then went back to his vehicle before then returning at which time he advised him that he was under arrest. [ 44 ] During his interaction with the officer at the roadside the accused stated he was never asked when his last drink occurred or the amount of alcohol he had consumed that evening. He then provided a sample of his breath as had been requested by the officer.

That request occurred within ten minutes of the traffic stop having occurred. [ 45 ] He was then taken back to the station where he spoke with counsel and then provided further samples of his breath as had been requested. When he was subsequently advised of the test results the accused indicated he was quite surprised as he did not believe the one drink would put him at the test results. [ 46 ] The next day the accused called Dancyt to inquire about the drink he had consumed prior to leaving and was told the beer cup was about half full with straight rum.

He acknowledged realizing that as he was consuming the contents of the cup and indicated that he did not feel anything after finishing that drink nor did he feel that he was impaired while he was driving home that evening. [ 47 ] As for himself, he testified that he weighed about one-hundred and seventy pounds at that time and has never been treated for any alcohol or other health related issues.

He confirmed he had consumed five beers between 1300 hours until 2030 hours and nothing further until the drink he had as he was leaving. [ 48 ] In the course of cross-examination the accused agreed that when he purchased the beer he intended to consume it during the duration of the ride. He also indicated knowing that driving with open liquor was irresponsible by him. [ 49 ] He advised that his testimony was essentially based on his memory of the events and indicated this incident still haunts him.

He suggested that he is now way more responsible and thinks about his actions before doing anything. [ 50 ] At the time he took the drink he did not take the time to consider its effects and essentially downed the drink without thinking. It did not cross his mind at the time that taking that last drink would be a problem for him. As for the amount of alcohol in the glass the

accused believed it was half full but was unsure and agreed it could have been slightly more or slightly less than that. [ 51 ] He agreed that he could have said no to the drink when it was offered to him and that he had no way of knowing when his ability to drive would have been impaired after having consumed the drink. He described starting to feel the effects of that last drink once he had been seated in the back of the police vehicle for about fifteen to twenty minutes.

At that time he began to feel flushed, was a bit shaky and was starting to get warm. [ 52 ] He described that the events surrounding the ATV ride were not a typical weekend for him. His decision to consume five beers was not something that he would ordinarily do.

His decision not to consume the last sip of a beer is something that he has always done and when asked why stated that it generally tastes awful. [ 53 ] While in the police vehicle he did recall being advised of his various rights by the officer and agreed that he did not respond at varying times when the officer asked if he understood what was being said to him.

He stated that he was simply trying to take in what he was being told. [ 54 ] As for the one can of beer located in his backpack on the back of the ATV, the accused testified that he had forgotten about it. [ 55 ] Once at the detachment he was searched and when asked about a Ziploc baggie found in his wallet he told the court he had never seen it before and did not know it was there. He was unsure when it could have been placed in his wallet and told the court it was found in a portion of his wallet that he does not check.

He surmised it may have been put there months prior to this incident. [ 56 ] When questioned further the accused did agree a wallet is something that he keeps close control of but denied the suggestion of Crown counsel the cocaine was his and he had simply forgotten he had it.

Since this incident occurred he made inquiries with some of the riders from the trip whether any of them may have placed that baggie in his wallet and received negative responses. [ 57 ] In re-examination the accused confirmed that he had placed his wallet into a Ziploc baggie for the ride and that any of the riders would have had access to it.

John Dancyt [ 58 ] Dancyt advised the court that he is thirty-five years of age and at the time of the incident he was employed as a butcher/manager in his family’s business. [ 59 ] On the date in question he advised he was out riding with a group of about fifteen to twenty people. That day was described by him as being a warm spring day but that it had cooled off in the evening. [ 60 ] The ride started around 1300 hours and finished close to dark, which he estimated to be about 1930 to 2000 hours.

While on the ride he advised he was consuming eighty proof Lambs Rum and had observed the accused to also be consuming alcohol during the ride. [ 61 ] After the ride he and the accused returned to his residence where he put a casserole that had been prepared by his wife into the oven. While it was cooking he continued to consume rum drinks that he was mixing with sprite and coke. In terms of the accused he advised the court that he did not observe him to consume any alcoholic beverages. [ 62 ] At about 2330 hours the accused advised him that he was going to go home.

The accused then got dressed and went outside to start and warm up his ATV. After a period of time the accused returned back into the residence at which point in time Dancyt indicated he offered him a ‘shot for the road” from the glass he had been using that evening. [ 63 ] Dancyt stated that he had poured the remainder of the rum in the bottle into that glass and had yet to add any mix. The accused accepted his offer and drank the entirety of the glass which shocked him a little.

When the accused left the residence Dancyt felt he was okay and did not believe him to be impaired. [ 64 ] In cross-examination Dancyt described himself as not “drunk drunk” that evening. He agreed that when drinking he may not be accurate with his observations and that the more he drinks the worse it gets for him. When asked why he would have given the accused a shot as he as leaving, Dancyt replied that he did not believe that would hurt him. [ 65 ] He acknowledged the accused did call him next day and was asked about the cup and amount of alcohol contained within it when he offered the drink.

It was his recollection the cup was half full and on that basis he measured the contents to be about six ounces of straight alcohol. When pressed he agreed six ounces was an estimate and agreed that it could have been more or less. [ 66 ] He agreed that his decision to offer the drink was adversely affected by his own consumption of alcohol that evening. [ 67 ] As for his testimony he stated it was based on his memory and agreed that his memory does not get any better over time. [ 68 ] As for the accused, he indicated that he has known him since he was sixteen years of age and described him as his mechanic.

In terms of contact between them that would occur socially from time to time when he was in Lac Du Bonnet. [ 69 ] When asked about the riders from that day he recalled a few of them and stated that some of them where from out of town and as such did not know them. He agreed that it was possible some of them may have been smoking marihuana during the ride but had no recollection of that occurring.

He was certain though that no one was using cocaine that day. [ 70 ] During the course of the ride he did not recall seeing anyone going into the belongings of other riders and he did not find any drugs planted in his belongings. He also denied that he had placed cocaine into the belongings of the accused. Archie Kraut

[ 71 ] The expertise of Dr. Archie Kraut (“Kraut”) was admitted by Crown counsel without the need of a formal voir dire. [ 72 ] When asked to opine as to the blood alcohol level of the accused at the time of the traffic stop he suggested that based on the evidence of the accused, he would not have been above the legal limit at that time. [ 73 ] In that calculation he considered the evidence of the accused in which he had consumed six ounces of rum shortly before the traffic stop.

As a forensic precaution he assumed that none of it would have been in his blood stream at the material time and therefore subtracted that amount of alcohol from the test result obtained. It was his opinion the maximum blood alcohol concentration would have been achieved about thirty minutes after consumption. [ 74 ] Based on the breath results of one-hundred and fifty milligram percent at 0116 and 0138 hours, Kraut indicated there would be a range of plus or minus ten milligram percent from the results obtained.

On the basis of the tests performed he suggested the blood alcohol level of the accused would have been between one-hundred and forty and one-hundred and sixty milligram percent. [ 75 ] Kraut acknowledged that he read the Forensic Report that was prepared by Ms. Cherlet of the RCMP Forensic Laboratory.

In that report she estimated that in order for a male weighing seventy-five kilograms to have a blood alcohol concentration of eighty milligrams at 2350 hours and one of one-hundred fifty milligrams at 0116 hours, he would need a minimum of 4.6 ounces of hard liquor or three cans of beer to enter the blood stream after driving and prior to the breath test. [ 76 ] It is on the basis of accepting the breath test results as being accurate as well as the history of consumption related by the accused that Kraut suggested the blood alcohol concentration would not have been above the legal limit at the time of the traffic stop. [ 77 ] Kraut estimated the maximum blood alcohol concentration based on the earlier consumption of five beers and six ounces of liquor just before driving would be one-hundred and twenty-five milligram percent.

He suggested that would still be consistent with the test results of one-hundred and fifty milligram percent. He explained that is based on tolerance of the instrument being one-hundred and forty to one-hundred and sixty milligram percent. He went on to indicate that drinking history are simply estimates and it would be fairer to say it would be consistent with the test results obtained. [ 78 ] The calculations achieved were done by using standard elimination rates of ten to twenty milligram percent per hour, which is not weight dependent.

Furthermore it was based on alcohol consumption beginning at 1330 hours, ending at 2000 hours and the consumption was evenly spaced out with no heavy consumption at the end of that period of time.

If there was heavy consumption close to end then the estimate would have been increased and could account for extra fifteen milligram percent. [ 79 ] Therefore if the accused had consumed six ounces of liquor five minutes prior to the stop occurring he would have been under the legal limit at that time. [ 80 ] In cross-examination Kraut agreed the timing of the drinking is an important consideration in his calculations. [ 81 ] In this case he used the Widmark equation to conduct his calculations.

When it was suggested to him the Widmark calculation tends to over-estimate the blood alcohol consumption he was not prepared to agree with that until he could see the literature that was being relied upon before he could answer. [ 82 ] When asked what figures he used for his calculations Kraut reiterated that he assumed a male weighing one-hundred and seventy pounds and used the maximum blood alcohol concentration that could be obtained for each ounce of alcohol consumed prior to driving.

He also considered the remaining blood alcohol level from the beer that was earlier consumed as well as the time where elimination would occur. [ 83 ] Once again he used an elimination rate of ten to twenty milligram percent and what he presented in court was the maximum that could be derived from the alcohol that was consumed that day.

Kraut agreed that if the accused eliminated alcohol at a rate of twenty milligram percent then the results would have been eight milligram percent instead of the one-hundred and twenty-five he had earlier presented to the court. [ 84 ] In this regard Kraut agreed that he did not specifically test this accused for his actual rate of elimination but stated that even if he had done so he could not say for sure that would have been the case at the time of the actual testing. [ 85 ] Kraut agreed that although breath test results obtained by using a BAC Datamaster could yield the same results obtained from the analysis of a blood sample, they are generally lower than those obtained from a blood analysis. [ 86 ] In the case at bar, Kraut acknowledged hearing the accused testify he did not consume the entire amount of beer from each of the cans.

With that he gave him the benefit of the doubt by using five full cans of beer as having been consumed and suggested that a difference of something like five millilitres would not affect the calculations he put before the court. [ 87 ] When asked about the alcohol standard solution, Dr. Kraut agreed the target is one-hundred percent and in this case it was tested at ninety-eight and ninety-seven percent. Even with that he suggested that would not show the breath test was accurate as there is still a variable attached to it. [ 88 ] At the time of his tests, Dr.

Kraut agreed with the suggestion the accused would have had about eight and a half ounces of liquor in his system when he provided his sample at 0116 hours. [ 89 ] It was suggested to him the evidence of the accused is that he drank less than five beers between 1330 hours and ending at 1900 hours, which Kraut agreed with. He also agreed the issue of spacing between drinks is unknown but that he would be eliminating at ten percent each hour. [ 90 ] Therefore at 2345 hours he agreed the accused would have had a blood alcohol concentration of zero to thirty milligram percent

at the time of driving. If he was eliminating at twenty milligram percent, he agreed the reading would have been zero milligram percent. Crown counsel suggested that if the accused was eliminating alcohol at a rate of twenty milligram percent per hour his evidence would be inconsistent with the breath test results obtained, which was agreed to by Kraut. REBUTTAL EVIDENCE [ 91 ] In a separate ruling I permitted the Crown the opportunity to call expert rebuttal evidence on the issue of the calculations that were conducted by Dr. Kraut. Gertrud Patricia Lehmann [ 92 ] Defence counsel conceded that Ms.

Gertrud Patricia Lehmann (“Lehmann”) was also an expert without the necessity of a formal voir dire. Counsel agreed that Lehmann was an expert in the effects of alcohol in the body, absorption and elimination of alcohol, predictions as to blood alcohol levels and theory and operation of breath testing equipment [ 93 ] Lehmann confirmed that she sat through the evidence of Dr.

Kraut and suggested that in her opinion a reading of one-hundred and twenty-five milligram percent was not consistent with the reading obtained by the instrument in this case. [ 94 ] She acknowledged that she too used the Widmark equation in her calculations and explained that it presents the theoretic maximum blood alcohol level that could be obtained from a stated drinking history.

With that she went on to suggest that the actual blood alcohol concentration people obtain from the consumption of alcohol is expected to be less than the figure calculated and that has been confirmed through the testing of individuals. [ 95 ] The reading of one-hundred and twenty-five that was suggested is based on the accused achieving the maximum effect from each drink consumed and eliminating at the lowest level.

Her calculation was one-hundred and twenty-six milligram percent and that she said would be the maximum reading that would be obtained. [ 96 ] If a higher rate of elimination of twenty percent milligram is used then the reading obtained would be seventy-seven milligram percent which she suggested is consistent with Dr.

Kraut’s evidence. [ 97 ] Therefore the calculation using the maximum effect from the alcohol that was consumed would be a range of eighty to one- hundred and twenty-five milligram percent and that would not be consistent with a breath test result of one-hundred and fifty that was obtained in this case. [ 98 ] Lehmann did agree with the suggestion that an analysis of blood drawn would produce a result that would be the same or higher as that obtained by the instrument in this case, which is known to underestimate the blood alcohol level.

Therefore the reading of one- hundred and fifty that was obtained would be the lowest possible reading that could be expected. [ 99 ] When asked how a reading of one-hundred and twenty-five could be consistent with the test result of one-hundred and fifty milligram percent, Lehmann was clear that they are not consistent. [ 100 ] Once again she emphasized that the reading of one-hundred and twenty-five would be the highest blood alcohol level that could be obtained and the expectation would be that it would be lower as tests show people do not achieve the highest level. [ 101 ] In her calculation Lehmann considered the five cans of beer that were consumed but noted the evidence of the accused is that he did not consume the entirety of those cans of beer.

That, depending on the exact quantity left in each can, would result in a lower calculation being obtained. [ 102 ] In conclusion she opined that the stated drinking history is inconsistent with the breath test results obtained and that the accused would have needed to consume more alcohol at some point during the day. [ 103 ] In cross-examination Lehmann acknowledged hearing that Dancyt agreed in cross-examination that there could have been as high as seven and one-half ounces of rum in the cup, which would then bring the reading closer to the bottom end of the suggested range, being one-hundred and forty milligram percent.

In that regard Lehmann indicated that she did not agree that one-hundred and forty milligram percent was the result from the test results. [ 104 ] When examined about the ten milligram percent error factor she took the position that applied to the alcohol standard and stated the instruments had to perform better than that to be accurate.

In this case the instrument was within two or three percent of the target value and would therefore accurately state the blood alcohol level. [ 105 ] With the new instruments now being used she went on to indicate she no longer agrees with the error factor and suggested that the analytical margin is narrower than that figure suggested. [ 106 ] Lehmann acknowledged that she did work with and for Dr. Kraut earlier in her career and agreed they did not always agree on their opinions.

With that she indicated an agreement with how he obtained his calculation of one-hundred and twenty-five milligram percent as well as the range he had suggested of eighty to one-hundred and twenty-five milligram percent. [ 107 ] Lehmann also agreed that there are a significant number of variables present in every case, such as absorption rates and the like and that there is an error factor in each instrument used but that it is not ten percent as was suggested. DEFENCE POSITION [ 108 ] Counsel suggests that it is for the court to determine whether the evidence of the defence is capable of being accepted. In that

regard Dancyt testified and was essentially unchallenged throughout the course of his testimony. Counsel suggests that both he and theaccused made a number of admissions during the course of their testimony that cannot be said to put them in a positive light. Howeverwhat it does do is speak to the issue of their credibility. [109] The accused openly admitted that he made a number of unwise decisions on that day and today he would do things muchdifferently.

The accused stated that he consumed five beers throughout the time of his ride and that is supported by the fact that one beerwas later located by police upon the arrest of the accused. [110] The best estimate is that he then consumed six ounces of rum just prior to driving and based on the opinion of Dr.

Kraut, theaccused would, if the court accepts that evidence, have had a blood alcohol level below the legal limit at the time of driving. [111] That conclusion would be consistent with the fact the police officers did not note any signs of impairment at the time of the trafficstop. [112] Counsel suggests that there are no absolutes and if more than six ounces were consumed that would in fact assist the accused. Ifthe court accepts the evidence and the bottom level of the range is achieved then the court must acquit the accused.

CROWN POSITION [113] The Crown takes the position that the evidence put forth by defence does not meet the test to conclude the blood alcohol level ofthe accused was below the legal limit at the time of driving. [114] As the actual results obtained are not being contested, counsel suggests that there must be evidence showing the blood alcohollevel was distorted by recent consumption.

In addition the evidence must also show that overall consumption is also consistent with thebreath test results that were obtained. [115] In the case at bar the accused and his friend each testified and Crown counsel suggests that neither knew exactly how much rumwas in the beer glass that was consumed by the accused.

If the court accepts six ounces as having been consumed that, according toPatricia Lehmann, results in a reading that is inconsistent with the actual results obtained from the instrument. [116] The law, counsel suggests, requires the evidence to be consistent with the test results obtained and as such the accused must beconvicted. [117] As for the cocaine located in the wallet of the accused, counsel suggests the explanation for its presence offered by the accused ispreposterous and incapable of belief. As such a conviction should also be entered on that count.

THE LAW [118] As I indicated at the outset of my comments, the accused is charged with two offences. One being that he did operate a motorvehicle with a blood alcohol level in excess of eighty milligrams contrary to s. 253(1)(

b) of the Criminal Code of Canada and secondlythat he did possess cocaine contrary to s. 4(1) of the Controlled Drugs and Substances Act. [119] With respect to the offence of the driving over the legal limit charge, the defence of the accused centres on section 258(1)(d.1) ofthe Criminal Code of Canada and more specifically he alleges that he had consumed a quantity of alcohol just prior to driving such thathis blood alcohol level at the time of driving did not exceed the legal limit. [120] In this regard Crown counsel relies on the presumption contained within s. 258(1)(

c) and suggests the evidence adduced does notsupport defence counsel’s assertion that the presumption has been rebutted. [121] With respect to the simple possession of cocaine, the accused advances that he was not aware of the drug being in his wallet andtherefore suggests he lacked the necessary mens rea to support a conviction. [122] In this regard he does not contest the actus reus of being in actual possession of the cocaine. DRIVE OVER THE LEGAL LIMIT [123] By way of background, on July 2, 2008 Parliament created a new legislative scheme that aimed to deal with offences relating toimpaired driving.

Through the introduction of Bill C-2 Parliament sought to address the concept of “evidence to the contrary” byrestricting its use to “scientifically valid defences” in cases where it is alleged a person operated a motor vehicle with a blood alcohollevel that exceeded eighty milligram percent. [124] Essentially what Parliament set out to do was to eliminate what was commonly known as the “Carter Defence” [R. v. Carter(1985), (ON CA), 19 C.C.C. (3d) 174 (Ont.

C.A.)], as it was then being presented within the courts, through theintroduction of Section 258(1)(d.1) which reads as follows: (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 theconditions described in that paragraph and the results of the analyses show a concentration of alcohol in blood exceeding 80 mg ofalcohol 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 thetime when the offence was alleged to have been committed exceeded 80 mg of alcohol in 100 mL of blood, in the absence of evidencetending 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 theoffence was alleged to have been committed, and (ii) the concentration of alcohol in the accused’s blood as determined under paragraph (

c) or (d), as the case may be, at the time when

the sample or samples were taken [125] The constitutionality of this legislation soon came under constitutional scrutiny and that was addressed by the Supreme Court ofCanada in the case of R. v. St-Onge Lamoureux 2012 SCC 57 , [2012] S.C.J. No. 57. [126] After a thorough analysis of the legislative history pertaining to impaired driving, followed by a review of the changes beingsought to the legislation, Deschamps J. on behalf of the court concluded that s. 258(1)(d.1) did infringe on the Charter right of anindividual to be presumed innocent. However the court ultimately concluded on a

Section 1 analysis that the infringement was justified. [127] In her decision Deschamps J. noted this specific

section dealt with the “second presumption of identity” where an accusedperson, who does not contest the functioning of the breath test instrument, suggests that their blood alcohol level did not exceed the legallimit at the time of driving as the test results were impacted by the consumption of alcohol just prior to (or immediately after) driving. [128] In this regard the court noted the following at paragraph 83: “The type of consumption that can be used to rebut the second presumption was explained as follows by Rob Moore during the debatethat preceded the enactment of Bill C-32 (House of Commons Debates, at p. 6186): ‘This could happen if, for example, the person downed several drinks and was arrested before the alcohol was absorbed.

It could alsooccur that after driving, but for testing, the person consumed alcohol and it was absorbed by the time the approved instrument test wastaken’.” [129] And at paragraph 84 the court set out what was now required to be considered evidence to the contrary: “As a result of the statutory amendments, evidence to the contrary adduced by the accused must tend to show two facts: (1) theconsumption of alcohol of the accused was consistent with a blood alcohol level that did not exceed .08 at the time when the offence wasalleged to have been committed; and (2) the consumption of alcohol of the accused was consistent with the test results.” [130] When examining the minimal impairment test the court stated the following at paragraph 90: “It is the accused -- and not the prosecution -- who knows when he or she drank, and how much.

What is more, it is also the accused --and not the prosecution -- who would decide to analyze his or her capacity to absorb and eliminate alcohol, and to adduce evidence in thisregard. I do not therefore consider it unduly onerous to require the person who has this information and is in a position to tender relevantevidence to show not only that he or she had a "last drink", or drank after being pulled over, but also that the difference resulting fromthat consumption is relevant to the determination of his or her guilt or innocence.

I should also note that the cases in which such adefence is raised should be rare…” [131] The court acknowledged that s. 258(1)(d.1) places an evidentiary burden on the accused and it is well established that reasonabledoubt is the standard of proof required to rebut the statutory presumption. [132] In a case such as this it is the factual foundation from which the opinion of the expert flows that is usually the most crucial. If theevidence is not credible and is rejected by the court, the opinion of the expert will have no probative value in the proceedings.

ANALYSIS [133] As this is a criminal trial it must be remembered the accused is cloaked with the presumption of innocence.

In addition it is theCrown that carries the burden of proof, with the standard being beyond a reasonable doubt, on each of the material elements of theoffence. [134] A judge, in their consideration of the case, must consider all the evidence that is adduced and can accept all of the evidence,accept part of the evidence or reject the entirety of the evidence. [135] Although I would normally began my analysis by examining the evidence that forms the underpinning for the opinions put beforethe court by the expert witnesses, in this case I will firstly examine the evidence of the expert witnesses themselves. [136] A reconsideration of their testimony reveals how complicated this area of the law can be and that is no more apparent than in theSupreme Court of Canada decision in R. v.

St-Onge Lamoureux, supra. [137] As was noted during the examinations of both Dr. Kraut and Ms. Lehmann, both witnesses had previously worked together at theRCMP Forensic Laboratory. Dr. Kraut was in fact the superior to Ms. Lehmann for a period of time at that location before he ultimatelymoved on.

When they were working together it was also revealed that at times they did not share the same opinion and that is once againthe scenario in the case before the court. [138] In the course of providing their opinions, both experts testified they used the Widmark equation to calculate the blood alcohollevel of an individual based on the set of circumstances that were put forward. Ms.

Lehmann indicated this equation presents thetheoretic maximum blood alcohol concentration for an individual based on the drinking history that was presented. [139] Given the fact that a scientific formula was being used to make the calculations, it is not surprising that both experts, based on theevidence put before the court, arrived at the same estimation of blood alcohol level. [140] Having acknowledged that, there was a significant issue upon which the two experts did not agree.

That centred on whether thereis a ten milligram plus or minus margin with the readings obtained by the breath testing instrument. [141] Dr. Kraut stated during the course of his direct examination that such a margin exists and suggested the reading of one-hundredand fifty milligram percent obtained by the instrument would actually be a range of one-hundred and forty milligram percent to one-

hundred and sixty milligram percent in this case. He was not really challenged when he made that statement. [ 142 ] Although Patricia Lehmann did agree in cross-examination that there exists a ten to twenty milligram error factor, she took issue that it applied to the readings obtained by the instrument. She suggested that error factor applied to the testing of the alcohol standard solution and pointed out that the evidence ticket showed it had tested within two to three percent of the expected result. [ 143 ] She did agree there are a significant number of variables in every test that is conducted.

With the new instruments now being used, it was her position the analytical margin is now narrower than in the past and the error factor with the readings obtained is not ten milligram percent. [ 144 ] Unfortunately this position was not put to Dr. Kraut to address and as such the court is not in a position to come to a reasoned conclusion on that issue in this case. [ 145 ] With that, assuming the defence evidence respecting the drinking history is accepted by the court, both experts did agree: 1. The blood alcohol level of the accused at the time of driving would have been below the legal limit. 2.

The blood alcohol level of the accused at the time of testing would have been at a minimum eight milligram percent and a maximum of one-hundred and twenty-five milligram percent. [ 146 ] In arriving at this conclusion both experts assumed: 1. The maximum absorption rate for each ounce of alcohol consumed. 2. The standard elimination rate for individuals is commonly accepted to be ten to twenty percent each hour. 3.

The consumption of the beer was evenly spaced out during the time period of consumption. [ 147 ] Where the experts did not agree on was whether the maximum reading of one-hundred and twenty-five milligram percent was consistent with the test result obtained of one-hundred and fifty milligram percent. [ 148 ] Dr. Kraut took the position that the drinking history presented is consistent with the breath test results obtained from the instrument. He acknowledged the estimate calculated produced a difference of twenty-five milligram percent from the results obtained by the instrument.

However he suggested that the estimate arrived at is simply that, an estimate, and cannot be said to be exact. As such he concluded that it would be fairer to say they are consistent with one another. [ 149 ] Patricia Lehmann took the opposite view and concluded the estimated reading of one-hundred and twenty-five is not consistent with the reading obtained by the instrument. She pointed out the estimated result reflects the maximum blood alcohol level that can be obtained from the drinking history that is presented for consideration.

She suggested that testing has shown the actual result obtained by individuals is expected to be less than the calculated figure. [ 150 ] She went on to point out that the calculated reading assumed the maximum effect from each drink that was consumed and that the individual would be eliminating the alcohol at the slowest level possible. It was her position that in order for the readings to be consistent, the accused would have needed to consume more alcohol than has been testified to in these proceedings. [ 151 ] I have to say that I am troubled by the conclusion of Dr.

Kraut. [ 152 ] In order to accept that the reading may have been at the upper end of the range, the accused would have to be given the benefit of each and every scenario. He would have to be an individual who absorbs alcohol at the highest possible level while also being an individual who eliminates at the slowest rate accepted forensically. [ 153 ] That would have to be so in light of the undisputed evidence that he did not consume the entirety of the five beers he attested to drinking during the ride.

While I understand the amount left in the can may not have been an amount that would have altered the final calculation, the amount of beer that was left in each can is unknown to the accused and therefore is unknown to Dr. Kraut. [ 154 ] What we can draw from the evidence is that relying on five cans of beer having been consumed is not accurate. [ 155 ] In his testimony where he suggested that the two readings were consistent, Dr. Kraut predicated his conclusion by stating that it would be fairer to do so. Being fairer is not the test before the court.

I cannot see how, in a pure mathematical formula, a reading of one- hundred and twenty-five milligram percent can be seen as being consistent with one-hundred and forty, let alone one-hundred fifty milligram percent as was found by the instrument. [ 156 ] I agree with the evidence of Patricia Lehmann that, even if I were to accept the facts as adduced through the defence case, the calculated reading and the reading derived from the instrument cannot be and are not consistent with one another. [ 157 ] The accused testified that the day following his arrest he called Dancyt to find out what amount of alcohol was contained in the cup.

Therefore the results outlined by Dr. Kraut were based on the evidence of Mr. Dancyt as the accused was not able to assist the court on a first hand basis. [ 158 ] According to the testimony of Dancyt he, like the accused, had also been consuming alcohol during the course of the ride that day. The amount of alcohol that he stated he consumed during that period of time was a couple of Lambs rum.

The total amount of actual alcohol consumed was not identified so the only conclusion that can be drawn is that he had been consuming alcohol on this day. [ 159 ] Once he arrived home, Dancyt told the court he continued to consume alcohol and described having a couple of drinks that were made up of Lambs rum that he mixed with sprite or coke. His testimony shows that he intended to continue drinking even as the accused

was leaving his residence as was evident by his pouring himself a glass of rum. [ 160 ] When Dancyt was asked what condition he was in on this day he stated he was okay. He went on to say that he had not been drinking that much and then stated that he had a few drinks during the day and a few drinks after supper. This evidence of his consumption on this day was inconsistent with his earlier viva voce testimony where he had stated that he had a couple of drinks while on the ride and a couple of drinks while at home.

A couple and a few drinks cannot be said to be the same. [ 161 ] When it was suggested in cross-examination to Dancyt that the accused had stated that he, Dancyt, was drunk, he responded maybe. He then went on to say that he was “not drunk- drunk” that day. He also repeated his earlier direct testimony where advised the court the glass he handed to the accused was half full, not around half-full or approximately half-full. [ 162 ] I am not sure if not being “drunk- drunk” leaves him as only being drunk on this day.

Suffice to say the evidence seems to indicate that Dancyt had been consuming alcohol while out on the ride and continued when he arrived home, essentially the entirety of the day. It is my view that his evidence shows that he does not even know how much alcohol he had consumed that day. [ 163 ] If he is unsure as to how much alcohol he drank, it is difficult to accept that he would somehow know how much someone else may have drank.

I might also add that it seems somewhat odd he would offer the accused, who he claimed did not have a single drink the entire night, a drink and more particularly that he would offer him a straight drink as he was leaving. [ 164 ] As such, I have no problem in concluding that the evidence of Dancyt is internally inconsistent, unreliable and cannot be accepted to any degree. [ 165 ] As for the evidence of the accused it was brief and relied on the evidence of Dancyt pertaining to his assertion that he had consumed a drink just prior to leaving.

In the absence of that evidence, as had been expressed in the expert opinion or Patricia Lehmann, the accused was either mistaken in the amount of alcohol that he had consumed on this day or was attempting to mislead the court. [ 166 ] Having rejected the opinion of Dr. Kraut and the evidence of Mr. Dancyt, I find the accused has not raised a reasonable doubt as it pertains to the breathalyser testing that was conducted on this day.

There is no credible evidence showing that the accused’s blood alcohol level was both below the legal limit at the driving while also consistent with the breathalyser readings that were obtained. [ 167 ] I therefore conclude the accused has not raised a reasonable doubt to rebut the presumption stipulated in s. 258(1)(

c) and as such a conviction will be entered to the charge of driving with a blood alcohol level in excess of eight milligram percent. SIMPLE POSSESSION OF COCAINE [ 168 ] This matter is factually simple as there was no argument advanced that the Ziploc baggie was not found in the accused’s wallet at the time of his arrest and that it subsequent tested positive for cocaine. [ 169 ] The accused suggested that he did not know of the cocaine in his wallet and indicate that it was located by police in a part of his wallet that he does not regularly access.

The location of the cocaine was never explored with the police during the course of his examination. [ 170 ] The accused also surmised that the baggie may have been placed in his wallet months previous to the incident at hand. He did indicate that he had later asked some of the people from the ride whether they may have placed it in his wallet and was met with negative responses. [ 171 ] Quite frankly that is not surprising given the context of the ride.

The question would have to be why would someone have taken the time to stuff it in the wallet? [ 172 ] In re-examination the accused confirmed that he had placed his wallet into, coincidently, a Ziploc baggie for the ride. Although suggesting that it would have been open for any of the riders to have gained access to that wallet, practically it would have required the person to not only dig into the belongings of the accused to locate it but that person would then have had to open the baggie to get to the wallet.

That person would then have had to open the wallet and stuff the Ziploc baggie into the wallet in such a manner that the accused would not have later noticed it. All of this would have had to occur without the accused noting this event. [ 173 ] There was no evidence of opportunity presented in the evidence of the accused and in my view his explanation for the presence of the baggie lacks an air of reality as that term is often used. [ 174 ] I do not accept the explanation of the accused on this point and as such I enter a conviction on that matter.

CONCLUSION [ 175 ] Convictions will be entered on both counts before the court. “ORIGINAL SIGNED BY:” MOAR, P.J.