Court of Appeal for Ontario

Date: 2017-06-05 Docket: C61725 Judges: Juriansz, Pepall and Trotter JJ.A.

Between

Her Majesty the Queen Respondent

and

Janina Kraus Appellant

Counsel

Richard Litkowski, for the appellant Jennifer Epstein, for the respondent

Heard and released orally: May 29, 2017

On appeal from: the conviction entered on July 27, 2015 by Justice Deena Baltman of the Superior Court of Justice.

Reasons for Decision

[1] The appellant appeals her convictions of impaired driving and dangerous driving causing bodily harm. She had driven across 3 lanes of oncoming traffic at high speed on a major highway and collided with another vehicle before crashing into the median.

[2] The appellant submits that there was evidence upon which it could be found that the accident was a result of her falling asleep at the wheel. The question upon appeal, however, is whether there was evidence to support the trial judge's finding that the appellant was guilty. We see no merit in the appellant's argument that the trial judge erred by failing to deal with the possibility that the appellant had fallen asleep. Her own testimony and the defence position at trial was that she had not fallen asleep. Given the finding that the appellant had recently consumed alcohol, the inference she had fallen asleep would not have helped the defence in the circumstances of the case.

[3] Nor do we see any merit in the appellant's argument attacking the trial judge's finding the appellant was impaired by alcohol. Counsel, it seems to us, attempts to reargue the case and have us reweigh the evidence. There is ample evidence supporting the finding. While the trial judge posed rhetorical questions not put to the appellant, we are not persuaded that the trial judge erred by considering the implausibility of the appellant having kept open bottles of alcohol in her car for several days. This is a matter the judge could well consider particularly in light of the finding the appellant admitted drinking several coolers that day.

[4] The Crown concedes that the trial judge erred by taking judicial notice of the evaporation rate of alcohol. The concession is appropriate. However, we would apply the proviso. The appellant's driving was extreme. There were numerous bottles of open and consumed alcohol in her vehicle. A cab driver and arresting officer smelled alcohol on her breath and noted her slurred speech. The breath technician, whose personal observations are admissible, made the same observations. The appellant told the treating nurse she had drunk 3 coolers that day. Absent the judicial notice of the evaporation rate taken by the trial judge, the only conclusion on the overwhelming evidence is that the verdict would have been the same regardless.

[5] The appeal is dismissed.

"R.G. Juriansz J.A."

"S.E. Pepall J.A."

"G.T. Trotter J.A."