The appellant appealed a conviction for driving with a blood alcohol concentration exceeding 80 mg under the Criminal Code following a trial in the Ontario Court of Justice.
The appellant argued the trial judge misapplied the W(D) framework, failed to properly consider reasonable doubt, and improperly relied on a common-sense inference relating to bolus drinking.
The Superior Court held that the trial judge misdirected himself by relying on the inference from R. v. Paszczenko in circumstances involving alleged post‑driving alcohol consumption.
This misdirection affected the assessment of the accused’s evidence and credibility.
As the evidence was not overwhelming, the error could not be cured under the curative proviso.
