ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: CR120000012400AP
DATE: 20131114

BETWEEN:

HER MAJESTY THE QUEEN

Appellant

– and –

CHRISTOPHER SITARZ

Respondent

Stefania Fericean, for the Crown

Phil Patterson, for the Respondent

HEARD: September 20, 2013

b. p. o’marra j.

judgment

overview

[1] This is an appeal by the Crown from an acquittal entered by Justice K. Caldwell of the Ontario Court of Justice on September 5, 2012. The charge was Impaired Operation of a motor vehicle contrary to s. 253 of the Criminal Code.

[2] There was no dispute at trial that the Respondent’s ability to operate a motor vehicle was significantly impaired. The police observed bad driving and obvious signs of impairment including a strong smell of alcohol from his breath. He provided two breath samples each measuring 230 milligrams.

[3] The Respondent did not dispute that he drank sufficient alcohol to result in the very high intoxilizer readings. However, he submitted that the consumption that led to those readings was not voluntary.

[4] The evidence at trial included the following:

1. The Respondent admitted and recalled consuming a minimal number of alcoholic drinks preceding the arrest.
2. On one or more occasions he left a partially consumed drink at the bar while he went outside for a cigarette or went to the washroom.
3. His drink was still there when he returned and he consumed it.
4. He had a work related reason to limit the number of drinks he would consume that evening.
5. His lack of memory after a certain point in time that evening was atypical of his prior experience in consuming alcohol.

[5] Both parties and the trial judge dealt with the case based on the issue set out by the Supreme Court of Canada in R. v. King 1962 16 (SCC), [1962] S.C.J. No. 60 at paras. 63 and 64:

[W]hen it has been proved that a driver was driving a motor vehicle while his ability to do so was impaired by alcohol or a drug, then a rebuttable presumption arises that his condition was voluntarily induced and that he is guilty of the offence … and must be convicted unless other evidence is adduced which raises a reasonable doubt as to whether he was, through no fault of his own, disabled when he undertook to drive and drove, from being able to appreciate and know that he was or might become impaired.

If the driver’s lack of appreciation when he undertook to drive was induced by voluntary consumption of alcohol or of a drug which he knew or had any reasonable ground for believing might cause him to be impaired, then he cannot, of course, avoid the consequences of the impairment which results by saying that he did not intend to get into such a condition, but if the impairment has been brought about without any act of his own will, then, in my view, the offence … cannot be said to have been committed.

position of the appellant

[6] The Crown submits that the trial judge committed the following errors that require a new trial:

1. impermissible speculation
2. misapprehension of evidence
3. reversing the burden of proof onto the Crown to disprove what amounted to a defence of non-insane automatism
4. in the alternative, requiring the Crown to prove voluntary consumption of alcohol when the accused had not provided evidence to rebut the common law presumption

[7] The grounds of appeal based on alleged misapprehension of evidence and speculation by the trial judge in essence relate to the overriding question: Was there a valid basis for the Court to have a reasonable doubt to rebut the common law presumption of voluntary consumption?

[8] The issue at trial was not whether the defence had proven that in fact an intervening act had occurred that negatived voluntary consumption by the Appellant.

the law

[9] A finding of fact in the absence of any supportive evidence is an error of law. However, as regards an acquittal that will happen only if there has been a transfer to the accused by law of the burden of proof of a given fact. Absent a shifting of the burden of proof upon the accused there is always some evidence upon which to make a finding of fact favourable to the accused. Such a finding, if in error, is an error of fact.

R. v. Schuldt 1985 20 (SCC), [1985] 2 S.C.R. 592 at para. 28 and 38.

[10] An accused may rebut a legal presumption by raising a reasonable doubt based on the totality of the evidence.

Austin v. R. 1968 94 (SCC), [1969] 1 C.C.C. 97 (S.C.C.).

R. v. Bernard (1989) 1989 9674 (NS CA), 90 N.S.R. (2d) 10 (N.S. C.A.).

[11] Where a presumption merely establishes a prima facie case the burden of proof does not shift. The accused need only raise a reasonable doubt by giving an explanation that may reasonably be true.

R. v. Proudlock (1978) 1978 15 (SCC), 43 C.C.C. (2d) 321 (S.C.C.) revising 5 C.R. (3d) 21 (B.C. C.A.).

[12] The rebuttable presumption referred to in King does not require the defence to prove that his condition was not voluntarily induced. A conviction will follow unless other evidence is adduced that raises a reasonable doubt on that essential element.

[13] The Crown’s right of appeal from an acquittal is broader in Canada than in virtually any other common law jurisdiction. However, the Crown cannot advance a new theory of liability on appeal.

R. v. Penno 1990 88 (SCC), [1990] 2 S.C.R. 865 at para. 64.

R. v. Varga 1994 8727 (ON CA), [1994] O.J. No. 1111 at paras. 23-26.

R. v. Egger 1993 98 (SCC), [1993] 2 S.C.R. 451 at paras. 43.

analysis

[14] The Crown contention that the acquittal rested on what amounted to a defence of non-insane automation is not accurate. The defence at trial specifically relied on the defence of “involuntary consumption” as set out in R. v. King. The trial judge specifically referred to a possible intervening act related to his untended drinks at the bar. Both parties and the Court dealt with the issue at trial based on the defence of “involuntary consumption”.

[15] The trial judge found as a fact that it was reasonably plausible that there was an intervening act that caused the accused to be cognitively unaware of his alcohol consumption. Contrary to the Appellant’s submission there was no onus on the accused to prove this on a balance of probabilities.

[16] The trial judge found it was reasonably plausible that a substance was slipped into the Respondent’s drink which so effected his cognitive abilities that his subsequent alcohol was no longer voluntary. This was based on the following findings:

1. The Respondent genuinely believed that an intervening act such as drugging took place.
2. His visit to the hospital the next evening supported his credibility.
3. There were opportunities for someone to put something into his drink.
4. It was plausible that someone could have put something into his untended drink.
5. There was something that occurred on this occasion that was highly out of the ordinary when compared to his prior experiences involving alcohol consumption.

[17] Since the accused testified the trial judge was obliged to apply the principles in R. v. W.D 1991 93 (SCC), [1991] 1 S.C.R. 742.

[18] The Court did not reject his evidence and found it at least left a reasonable doubt on the essential element of voluntary consumption. Whether another judge may have found otherwise is not a basis to interfere with the verdict on appeal.

result

[19] Appeal dismissed

[20] I am grateful to counsel for their helpful submissions.

B. P. O’Marra J.

Released: November 14, 2013

COURT FILE NO.: CR120000012400AP
DATE: 20131114

ONTARIO

SUPERIOR COURT OF JUSTICE

HER MAJESTY THE QUEEN

Appellant

– and –

CHRISTOPHER SITARZ

Respondent

JUDGMENT

B. P. O’Marra J.

Released: November 14, 2013