R. v. Evans, 2010 ONCA 5

CITATION: R. v. Evans, 2010 ONCA 5

DATE: 20100107

DOCKET: C50087

COURT OF APPEAL FOR ONTARIO

Simmons, Cronk and LaForme JJ.A.

BETWEEN:

Her Majesty the Queen

Respondent

and

Eric Evans

Appellant

Matthew T. McGarvey, for the appellant

Stacey D. Young, for the respondent

Heard: January 4, 2010

On appeal from the judgment of Justice James McNamara of the Summary Conviction Appeal Court dated January 29, 2009.

APPEAL BOOK ENDORSEMENT

[1] The summary conviction appeal court judge set aside the appellant's acquittals for impaired driving and driving with a blood alcohol level in excess of the legal limit and ordered a new trial.

[2] The summary conviction appeal court judge found that the trial judge gave insufficient reasons because the trial judge failed to address the issue of whether the assumption made by the Crown's expert that no large quantities of alcohol were consumed shortly prior to the incident could be supported based on the common sense inference that people generally consume alcohol at a normal pace.

[3] The appellant contends that the summary conviction appeal court judge misapprehended the trial judge's reasons.

[4] We agree. During the course of oral submissions both counsel and the trial judge alluded to the common sense inference. Moreover, in reaching his conclusions, the trial judge referred specifically to this court's decision in R. v. Grosse (1996), 1996 CanLII 6643 (ON CA), 107 C.C.C. (3d) 97 in which this court said that the trial judge was entitled to consider the inherent unlikelihood that an accused would consume the equivalent of nine ounces of alcohol within the space 30 minutes. However, the trial judge noted that in this case there was no evidence concerning what the terms "large quantities of alcoholic beverages" and "shortly prior to the incident" mean as those terms appeared in the report prepared by the Crown's expert witness.

[5] Read as a whole, in our opinion, the trial judge's reasons indicate that he was not prepared to draw the common sense inference in this case because he did not have sufficient evidence to assess its exact implications. This conclusion was open to the trial judge on the record and explains the basis for his decision.

[6] In the circumstances, leave to appeal is granted, the appeal is allowed, the order for a new trial is set aside and the acquittals entered by the trial judge are restored.