On a summary conviction appeal from an over-80 conviction, the appellant argued the trial judge erred in assessing a bolus drinking defence where the breath samples were taken outside the two-hour window and the Crown relied on toxicological opinion evidence.
The court held that the trial judge improperly treated the appellant as bearing the burden of raising a reasonable doubt about an assumption underlying the expert opinion, rather than requiring the Crown to prove the factual foundation of that opinion beyond a reasonable doubt.
The court also found a central misapprehension of the evidence because the trial judge said there was no evidence of recent drinking despite accepting the appellant as credible.
The appeal was allowed and an acquittal entered.
