ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: 13-435-AP
DATE: February 11, 2014

B E T W E E N:

Her Majesty The Queen

N. Dietrich, for the Appellant

Appellant

• and -

Dustin Knechtel

Self-represented

Respondent

HEARD: December 17, 2013

TEMPLETON, J.

[On appeal from the judgment of McKerlie J. dated June 3, 2013]

[1] On June 3, 2013, the Respondent was acquitted of operating a motor vehicle with over 80 milligrams of alcohol per 100 millilitres of blood in his system.

[2] The Crown appeals this judgment on the following grounds:

a) that the trial judge erred in law by not reviewing and applying section 258 (1) (d.1) of the Criminal Code of Canada (the Code) in analyzing the evidence of the Respondent to determine whether the presumption in section 258 (1) (c) had been rebutted; and

b) that the trial judge erred in law and in fact by speculating on evidence that had previously been rejected which then lead to a reasonable doubt for the trial judge.

Summary of the Evidence at trial

[3] At approximately 11:15 pm on November 30 2012, Mr. Thomas Hummel was sitting in his living room at 56 Stratford Street in Stratford, Ontario when he heard a loud bang. He went outside, walked toward his neighbour’s home at 60 Stratford Street and saw a vehicle (a 1998 Mercury Sable) with its engine running located in the driveway. He then saw a young man get into the car through the passenger door. He yelled at the young man to stop. The driver reversed the car out of the driveway and onto the street. He got out of the car and ran down the street away from the scene. Mr. Hummel heard the young man say, “It wasn’t me.”

[4] At 11:24 pm a police officer was dispatched to the scene to look for the fleeing driver. Mr. Knechtel was located five blocks away from the scene and was arrested by the police at 11:56 pm. An investigation revealed that the Mercury Sable belonged to Mr. Knechtel’s father.

[5] In speaking with Mr. Knechtel, the police officer smelled the odour of alcohol on Mr. Knechtel’s breath and noted that his speech appeared to be laboured and slow. The keys to the Mercury Sable were in Mr. Knechtel’s pocket. The officer believed that Mr. Knechtel was intoxicated and placed him under arrest.

[6] Mr. Knechtel admitted to the officer that he had operated the car in order to move onto the roadway after he heard the collision. In his testimony, the officer recalled Mr. Knechtel telling him that he had then gone to a friend’s house.

[7] Two samples of Mr. Knechtel’s breath were taken at 12:51 am and 1:13 am respectively on November 31 2012 and the Breathalyzer technician determined that Mr. Knechtel had 159 milligrams and 150 milligrams of alcohol in 100 millilitres of his blood at those times.

[8] At the trial, the Crown relied on a Certificate of the Qualified Technician that was filed on the consent of defence counsel and pursuant to the provisions of the Code. The Certificate was filed and marked as an Exhibit. The information concerning the times the samples were taken and the results was contained in the Certificate.

[9] Mr. Knechtel testified in his own defence. He told the Court that

(a) he had parked his car on the street and got out to run an errand;

(b) he had left the engine running with the keys in the ignition;

(c) he had also left a “really drunk” passenger, Dylan Metcalfe, sitting in the front passenger seat;

(d) as he headed down the street away from the car, he heard a loud bang, looked back and saw Mr. Metcalfe running away from the car on foot;

(e) he also saw his car sitting in a driveway where it had hit the corner of a house;

(f) he was worried about his father’s reaction to what had happened and about insurance implications so he returned to the car, entered through the passenger door, got into the driver’s seat, reversed the vehicle back onto the road, parked it and then with the keys in his pocket left the scene;

(h) he did not stop to examine the damage and did not know that the Hyundai had been hit as well as the corner of the house;

(j) he had not consumed any alcohol prior to operating the vehicle;

(k) after leaving the scene, he went to the home of Barry Guse, a friend;

(l) he was at Mr. Guse’s home for 20 to 30 minutes and during this time, consumed a “good amount” of alcohol including beer and alcoholic shots;

(m) he had no clear recollection as to the amount of alcohol he had consumed at Mr. Guse’s home; and,

(n) he left Mr. Guse’s home and was arrested by the police.

[10] Mr. Guse testified that he had not seen Mr. Knechtel consume any alcohol when they were together earlier in the evening but on his arrival at Mr. Guse’s home; Mr. Knechtel had consumed some alcohol and beer chasers to calm down.

The Judgment

[11] The trial judge acquitted Mr. Knechtel of the charges relating to leaving the scene (section 252), impaired driving (section 253 (1) (a) and ‘over .08’ (section 253 (1) (b) but convicted him of an offence (failure to comply with an Undertaking) under section 145 (5.1).

[12] The Crown appeals only the acquittals with respect to section 253 (a) and section 253 (b).

[13] In her reasons for judgment, the trial judge found that Mr. Knechtel’s vehicle, a Mercury Sable, was involved in an accident in the driveway of a residence located at 60 Stratford Street. This car had ‘glanced off’ a 2010 Hyundai vehicle that was parked in the driveway and had struck a corner of the house. The collision had caused significant damage to the driver’s side of the Mercury Sable. Debris was also located at the corner of the house, which was the point of impact. The Hyundai vehicle had sustained slight damage. She noted that there were no witnesses to the accident or to the driving immediately prior.

[14] The trial judge properly turned her mind to the presumption of innocence, the Crown’s burden of proof beyond a reasonable doubt and the factors to take into account when assessing the credibility and reliability of witnesses. She then found that although Mr. Knechtel’s testimony was consistent during the examination-in-chief, it did not survive the scrutiny of cross-examination. In reviewing his evidence, the trial judge found that she did not believe Mr. Knechtel.

[15] Applying the principles of law in R. v. W.D.[^1], the trial judge properly went on to determine whether the Crown had proven beyond a reasonable doubt all of the essential elements of each offence with which Mr. Knechtel was charged.

[16] She found that Mr. Knechtel had admitted that he was the driver of the vehicle that Mr. Hummel saw as it backed out of the driveway after the collision and parked on the street.

[17] She recognized that Mr. Knechtel had denied however having more than the legal limit of alcohol in his blood at the time of driving and/or being impaired by alcohol or a drug at the time of driving. She noted that he was not arrested until 40 minutes later.

[18] The trial judge acquitted Mr. Knechtel of both alcohol related offences on the basis that

(a) even though she did not believe him, Mr. Knechtel had the opportunity to consume alcohol between the time of driving and the time of his arrest; and

(b) no one observed Mr. Knechtel’s physical condition at the time of driving.

Analysis

[19] It is trite law that a trial judge must take into account all of the evidence elicited at a trial but is also entitled to reject all, part or none of that evidence.

(a) Did trial judge err in law by not reviewing and applying section 258(1)(d.1) of the Code in analyzing the evidence of the Respondent to determine whether the presumption in section 258(1)(c) had been rebutted?

[20] As I have indicated, the Crown filed, on consent, the Certificate of a Qualified Technician pursuant to section 258(1)(g) of the Code. The Crown was thereby entitled to derive the benefit of the presumption described in section 258(1)(c).

[21] Mr. Knechtel’s defence engaged the application of the law with respect to “evidence to the contrary”. In rejecting, Mr. Knechtel’s evidence on the basis that she did not believe him, the trial judge rejected his evidence by implication with respect to bolus drinking after driving.

[22] In order to appropriately assess the merits of an appeal, a complaint must be read in the context of the entire judgment.

[23] In reviewing the entire judgment, I find that I must agree with the Crown’s position that in the reasons for her decision and her analysis, the trial judge does not appear to have considered the presumption under section 258(1)(c) of the Code by virtue of the Certificate, filed; the evidence required pursuant to section 258(1)(d.1) of the Code; and/or the principles of law set out by the Supreme Court of Canada in R. v. St‑ Onge Lamoureux[^2].

[24] The relevant portions of section 258(1)(c) of the Code read as follows…

Where samples of the breath of the accused have been taken pursuant to a demand under section 254 (3),

(i) each sample was taken as soon as practicable....;

(ii) each sample was received from the accused directly into …an approved instrument operated by a qualified technician; and

(iii) an analysis of each sample was made by means of an approved instrument operated by a qualified technician,

evidence of the results of the analyses so made is conclusive proof that the concentration of alcohol in the accused’s blood both at the time when the analyses were made and at the time when the offence was alleged to have been committed was ….if the results of the analyses are different, the lowest of the concentrations determined by the analyses,

in the absence of evidence tending to show all of the following three things –

(i) that the approved instrument was malfunctioning or was operated improperly; and

(ii) that the malfunction or improper operation resulted in the determination that the concentration of alcohol in the accused’s blood resulted in the determination that the concentration of alcohol in the accused’s blood exceeded 80 mg of alcohol in 100 ml of blood; and

(iii) that the concentration of alcohol in the accused’s blood would not in fact have exceeded 80 mg of alcohol in 100 ml of blood at the time when the offence was alleged to have been committed.

[25] The Supreme Court of Canada in R. v. St. Onge‑Lamoureux^3 dealt with the issue of post-drinking driving as follows,

If the accused does not challenge the functioning of the instrument but instead argues that, contrary to the results, his or her blood alcohol level at the time when the offence was committed did not exceed .08 and that the results were distorted by the fact that he …had consumed alcohol shortly before or after the alleged offence, the evidence the accused can tender to rebut the presumption is circumscribed by section 258(1)(d.1).

[26] The relevant portions of section 258(1)(d.1) read as follows

If samples of the accused’s breath…have been taken as described…under the conditions described…and the results of the analyses show a concentration of alcohol in blood exceeding 80 mg in 100 ml of blood, evidence of the results of the analyses is proof that the concentration of alcohol in the accused’s blood at the time when the offence was alleged to have been committed, exceeded 80 mg of alcohol in 100 ml of blood in the absence of evidence tending to show that the accused’s consumption of alcohol was consistent with both

(i) a concentration of alcohol in the accused’s blood that did not exceed 80 mg of alcohol in 100 ml of blood at the time when the offence was alleged to have been committed; and

(ii) the concentration of alcohol in the accused’s blood as determined …at the time when the ….samples were taken.

[27] The standard of proof required to rebut the presumption of accuracy of a Certificate as set out in s. 258(1)(g) of the Criminal Code is “reasonable doubt”. Evidence to the contrary that raises a reasonable doubt that the Certificate correctly reflects the appellant’s blood alcohol level at the time of the alleged offence is sufficient to rebut the presumption under s. 258(1)(g). Evidence to the contrary means evidence that shows that the appellant’s blood alcohol level at the time of driving was different from the level at the time of testing. A defendant may do this by leading evidence, which, if believed, provides an explanation that may reasonably be true.

[28] With respect to the over .08 charge, the sole issue for the trial judge was whether the evidence led by Mr. Knechtel in his defence was sufficient to give rise to a reasonable doubt as to the reliability of the breathalyzer test results.

[29] In this case, the trial judge was required to determine whether or not the evidence lead by Mr. Knechtel (even though he does not have a burden of proof) amounted to evidence to the contrary and met the conditions described in the sections of the Code cited above. In assessing whether or not the evidence to the contrary raised a reasonable doubt, the trial judge was entitled to consider the defence evidence in conjunction with and in the context of all of the evidence called at the trial.

[30] It is clear from her reasons for judgment that the trial judge did not specifically refer to the evidence of the Certificate, the benefit that enured to the Crown by way of the presumption, the evidence of the defence in the context of evidence to the contrary and/or whether the evidence of the defence satisfied the requisite factors set out in section 258(1)(d.1) of the Code.

[31] The respondent argues that notwithstanding the lack of specific reference to the application of the law, given that submissions were made at the conclusion of the trial with respect to these issues, the trial judge must have considered the provision of the Code referred to above in her deliberations.

[32] In my view, however, it is unfortunately entirely unclear from her reasons that the trial judge in fact applied the law pursuant to section 258 of the Code in arriving at her decision. Her reasons do not reference the critical evidence of the Breathalyzer technician.

[33] The duty of a trial judge to provide adequate reasons in a criminal case applies to acquittals as well as to convictions[^4]. The trial judge's duty is satisfied by reasons which are sufficient to serve the purpose for which the duty is imposed, i.e., a decision which, having regard to the particular circumstances of the case, is reasonably intelligible to the parties and provides the basis for meaningful appellate review of the correctness of the trial judge's decision[^5].

[34] In any event, it also clear that there was no evidence before the Court that trial judge accepted as credible and reliable that the approved instrument was malfunctioning or was operated improperly; and that the malfunction or improper operation resulted in the determination that the concentration of alcohol in Mr. Knechtel’s blood resulted in the determination that the concentration of alcohol in his blood exceeded 80 mg of alcohol in 100 ml of blood; and that the concentration of alcohol in Mr. Knechtel’s blood would not in fact have exceeded 80 mg of alcohol in 100 ml of blood at the time when the offence was alleged to have been committed.

[35] Mr. Knechtel admitted that he placed the keys in the ignition of his father’s car; he reversed it out from the driveway onto the road and parked it prior to getting out and leaving the scene. He was seen at approximately 11:15 pm taking the actions to which he admitted. The Breathalyzer tests were administered within two hours. The Certificate was not challenged at trial.

[36] In my view, to fail to address the requirements of sections 258(1)(c) and 258(1)(d.1) of the Code in these factual circumstances is an error in law.

[37] In this case, without at least some explanation from the trial judge as to her assessment of the evidence on the over-80 charge, it cannot be said that the record clearly indicates the basis for the acquittal on this charge, or that the 'path' taken by the trial judge through the evidence is plainly apparent. Accordingly, the acquittal on the over-80 charge cannot stand.

[38] Even if I were wrong in this regard, I would grant the appeal on the following grounds:

(a) If the trial judge did consider the above-noted sections and applied the law with respect to evidence to the contrary in her determination, her reasons are insufficient; and

(b) The opportunity for bolus drinking after driving and prior to arrest is not sufficient in law to rebut the presumption.

(b) Did the trial judge err in law and in fact by speculating on evidence that had previously been rejected which then lead to a reasonable doubt for the trial judge?

[39] By reason of the conclusion reached above, this issue need not be addressed.

[40] The appeal with respect to the offence of operating a motor vehicle while impaired contrary to s. 253(1)(a) (impaired driving) of the Code is dismissed. The trial judge did not err with respect to this charge.

[41] For all of the foregoing reasons, the appeal is granted however with respect to the offence of operating a motor vehicle contrary to s. 253(1)(b) (over .08) of the Code. The appropriate remedy is a new trial with respect to this charge and is so ordered.

“Justice L. Templeton”

Justice Lynda Templeton

Date: February 11, 2014

[^1]: 2005 20711 (ON CA), 198 C.C.C. (3d) 541

[^2]: 2012 SCC 57, [2012] S.C.J. No. 57

[^4]: R. v. Kendall, 2005 21349 (ON CA), [2005] O.J. No. 2457

[^5]: R. v. Sheppard, 2002 SCC 26, [2002] 1 S.C.R. 869