COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Kahl, 2015 ONCA 255

DATE: 20150415

DOCKET: C59427

LaForme, Watt and Epstein JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Danny Kahl

Appellant

Mark C. Halfyard, for the appellant

John Neander, for the respondent

Heard: March 26, 2015

On appeal from the decision of the Summary Convictions Appeal Court dated September 24, 2014 by Justice Robert F. Goldstein of the Superior Court of Justice, dismissing the appeal from the conviction entered on September 26, 2013 by Justice Marvin A. Zuker of the Ontario Court of Justice.

ENDORSEMENT

[1] The appellant, a self-described alcoholic who was driving to Mimico Correctional Centre to serve the last segment of an intermittent sentence, caused an accident involving four vehicles. Police arrived about 20 minutes after the accident. The appellant was arrested and a breath sample demand was made. However, it was not until approximately three hours after the accident that a suitable breath sample was obtained. His blood alcohol concentration was first measured at 0.120. Twenty minutes later another breath sample measured his blood alcohol concentration at 0.105.

[2] The appellant testified that he was not impaired when he drove. He explained that it was his practice to drink a mickey of Fireball whiskey – a cinnamon schnapps whiskey (38% alcoholic content) - just before entering the Mimico facility to help him survive the weekend in jail. By drinking the alcohol just before being admitted, he would not display indicia of intoxication and his breath would smell like cinnamon. The guards would therefore not detect the fact that he was intoxicated and he would be allowed into the facility. Right after the accident, realizing that the police would be taking him to jail, he “chugged” seven - ten ounces of a mickey (13 ounces) of Fireball.

[3] The trial judge disbelieved the appellant and found that his testimony of bolus drinking “begs credulity”. He reasoned that a person such as the appellant, who was familiar with the criminal justice system would not choose to “guzzle a mickey” between his involvement in an accident and the arrival of police investigators.

[4] The trial judge’s reasons for finding the appellant’s evidence incredible included opinion evidence of a toxicologist based upon a hypothetical of bolus drinking of seven ounces of the whisky in question. There was also toxicological opinion evidence based upon bolus drinking of ten ounces that was capable of supporting the appellant’s testimony. This evidence was, however, not considered by the trial judge.

[5] The trial judge convicted the appellant of impaired operation of a motor vehicle. The appellant’s appeal against conviction to the Superior Court of Justice was dismissed: R. v. Kahl, 2014 ONSC 5478. Leave to appeal to this court was granted.

[6] In his reasons, the summary conviction appeal judge noted that the trial judge considered only the seven-ounce toxicological evidence, which did not support the appellant’s evidence. The appeal judge, at paras. 25 – 26, accepted that the ten-ounce calculation was capable of supporting the appellant’s defence theory, but that this evidence “did not lead inexorably to a finding that exculpated [the appellant]”.

[7] We agree with the appellant that the summary conviction appeal judge erred in concluding that the trial judge’s misapprehension of the toxicology evidence was not material.

[8] The central issue in this trial was the credibility of the appellant and his account of bolus drinking of seven – ten ounces of whiskey right after the accident. Relying on the seven-ounce toxicological opinion evidence to disbelieve his claim, but wholly ignoring the ten-ounce opinion evidence that was capable of supporting his claim, constituted a failure to consider evidence relevant to a material issue, and thus a misapprehension of the evidence.

[9] The ten - ounce toxicology evidence did not have to “lead inexorably to a finding that exculpated” the appellant, as the summary conviction appeal judge erroneously found. Rather, it was evidence capable of supporting the appellant’s evidence, which, properly considered, could have restored a trier of fact’s faith in what otherwise was seen as dubious evidence.

[10] For these reasons, the conviction appeal is allowed, the conviction is quashed and a new trial is ordered.

“H.S. LaForme J.A.”

"David Watt J.A."

"Gloria Epstein J.A."