R. v. Ahola, 2025 ONSC 2614

COURT FILE NO.: CR-23-0000143-00AP
DATE: 2025-04-29
ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:
His Majesty the King, Respondent
– and –
Ann Marie Ahola, Appellant

Appearances:
Mieszko Wlodarczyk, for the Respondent
Ian Bingham, for the Appellant

Heard: March 6, 2025

Decision on summary conviction appeal
S.K. Stothart J.

Introduction

[1] On June 30, 2023, Justice A.H. Perron found the appellant Ann Marie Ahola guilty of operating a conveyance while her ability to do so was impaired to any degree by alcohol or a drug contrary to s. 320.14(1)(a) of the Criminal Code, RSC 1985, c C-46.

[2] The appellant appeals against her conviction and submits that:
(a) the trial judge misapprehended the evidence,
(b) his verdict was unreasonable; and/or
(c) he erred in his application of R. v. W.(D.), [1991] 1 S.C.R. 742.

[3] For the reasons that follow, I am satisfied that the trial judge’s reasons did not adequately address the second stage of the R. v. W.(D.) analysis with respect to whether the appellant’s evidence, although rejected, nevertheless left the court with reasonable doubt on an essential element of the offence. As such, I allow the appeal and order a new trial.

Background

[4] On September 24, 2020, Olivia Cote called the North Bay Police Service about a possible impaired driver. This was after observing a pickup truck driving erratically, stopping at green lights for extended periods of time for no apparent reason, driving very slowly, driving into the oncoming lane, driving through red lights, swerving over the median center of the road, and stopping in the middle of the road for no apparent reason. At one point Cote observed the vehicle proceed through a red light, narrowly missing another vehicle. Cote was concerned enough that she remained on the phone with the police and followed the vehicle until it was pulled over by the police at the Tim Hortons/Wendy’s parking lot, off of Lakeshore Drive, in North Bay.

[5] Cst. Anthony Malden first observed the vehicle in question attempting to pull into the parking lot of a gas station. After pulling partially into the parking lot, the vehicle then backed into traffic and proceeded northbound at a slow rate of speed. After observing the vehicle proceed through a red light, the officer conducted a traffic stop and stopped the vehicle at the Tim Hortons/Wendy’s parking lot off Lakeshore Drive.

[6] Malden spoke to the appellant, who was the driver and sole occupant of the vehicle. Malden observed that the appellant appeared quite disoriented. She was rolling windows up and down and was grabbing at things inside the vehicle. She didn’t seem to understand what she was being asked to do. Malden smelled a strong odour of vomit coming from the vehicle and observed a large amount of vomit on the outside of the vehicle and on the side steps of the truck. The appellant was sweating heavily.

[7] Malden asked the appellant if she had been drinking and she responded that she had not. Malden had the appellant provide a breath sample into a roadside screening device and it registered no alcohol in her system.

[8] Malden asked the appellant if she had taken any prescribed or non-prescribed medications or other intoxicating substances. The appellant responded that she had taken three clonazepam and half a bottle of methadone.

[9] Cst. Cameron Ladouceur was also working that night. When he arrived at the parking lot, he observed Malden speaking with the appellant. Ladouceur described the appellant as very sleepy and drowsy. She was closing her eyes and nodding back and forth. It seemed to him that the appellant was having a hard time focusing and staying awake while Malden was asking her questions.

[10] Given the appellant’s condition, the police called for an ambulance. The police unlocked the vehicle from the passenger side and had the appellant step out. The appellant was very unsteady on her feet and had to be assisted to the stretcher when the paramedics arrived. Paramedics assessed the appellant and determined that there was no need to transport her to the hospital.

[11] Given his observations, Malden formed the opinion that the appellant’s ability to operate a conveyance was impaired by a drug. The appellant was taken into police custody, cautioned, advised of her right to counsel, and provided with a drug recognition evaluator (“DRE”) demand.

[12] When the appellant arrived at police headquarters, her condition continued to deteriorate. She was observed in the cell to have urinated and defecated herself. When the DRE officer arrived, he determined that he would not be able to conduct his evaluation given the appellant’s condition and recommended that she be brought to a qualified technician so that a blood sample could be taken. Malden read the appellant a blood demand to which she agreed.

[13] Given the appellant’s condition at police headquarters, the police decided to call an ambulance to take the appellant to the hospital. While at the hospital, a blood sample was taken which was then sent to the Centre of Forensic Sciences (“CFS”) for testing. No issue was taken at trial about the blood sample or its testing by the CFS.

[14] Randal Warren is a toxicologist who works for the CFS. He testified that he tested the appellant’s blood sample and detected the presence of:

• Methadone
• Clonazepam
• Trazadone
• Benzoylecgonine
• Seven amino clonazepam
• Carboxy tetrahydrocannabinol

[15] Warren testified that methadone is an opioid-type drug or a narcotic analgesic. The amount detected in the appellant’s blood was within a therapeutic range and what one would typically find in someone prescribed methadone. Methadone has a variety of effects that are forensically relevant in an impaired driving investigation. It has the potential to cause central nervous system depressant effects like dizziness, drowsiness, lethargy, and stupor. Because of the effect it has on the body’s central nervous system, it has the potential to impair a person’s ability to operate a motor vehicle. Warren testified that the amount detected in the appellant’s blood had the potential to cause impairment of one’s ability to operate a motor vehicle. Warren testified that studies cannot link impairment to a specific level of a drug in one’s system.

[16] Warren testified that clonazepam is a drug that is considered a benzoylecgonine drug, which is another central nervous system depressant. It is typically prescribed to treat seizures and maybe in some cases, anxiety. Because it is a central nervous system depressant it has the potential to impair one’s ability to drive. It has many of the same effects as an opioid, including drowsiness, maybe dizziness, and could impair one’s level of consciousness. However, it would not have the same level of severity of effects as an opioid. Warren testified that he could not rule out that the level found in the appellant’s blood could be within or below a therapeutic range. There is a large variability when people take clonazepam therapeutically and it depends on how long they are taking it and how they are taking it. Warren testified that it was difficult to interpret the amount detected in the appellant’s blood because clonazepam can break down in the test tube over time when it is stored. In this case, the level detected would have been higher at the time of the incident.

[17] Warren testified that if an individual had both an opioid and a benzoylecgonine drug in their system, there would always be a potential to increase the likelihood of more pronounced central nervous system depressant effects.

[18] Warren testified that the presence of benzoylecgonine indicated prior use of cocaine. Given the low amount detected, he did not consider it to be a relevant finding in this case. Warren testified that the significant findings in this case were the presence of methadone and clonazepam.

[19] Warren testified that symptoms such as being disoriented, head nodding, starting to fall asleep, not comprehending questions, and being unsteady on one’s feet, are classic signs of intoxication associated with central nervous depressant drugs. Labored breathing is also a classic sign of opioid intoxication. Vomiting could be associated with not tolerating a drug well. Sweating is typically more associated with a stimulant drug.

[20] Warren agreed in cross-examination that studies have shown that the impairing effects of methadone and clonazepam are much less present, if at all, when someone takes them on a chronic basis at stable dosages. In those circumstances, the drugs are less likely to cause problems when operating a conveyance. This is the case, provided the person does not change their dosage and/or how they take the drug.

[21] The appellant testified at trial that she had been babysitting her grandchild while her daughter went grocery-shopping. When her daughter got back, and before she left her daughter’s house, she began to have cramping and felt sick. She testified that she could not recall how she was driving but recalled that she would pull over and vomit and that this happened repeatedly. She testified that it would come on very quickly, and that she tried to stop and put on the hazard lights to go outside and vomit.

[22] The appellant attributed the symptoms observed by the police to her being sick. She suspected she had had gastroenteritis or a viral infection in her stomach. She testified that at the time she was prescribed methadone. She would take half during the day and half before she went to bed for pain relief. She testified that methadone did not affect her like it did when she first started taking it.

[23] The appellant testified that she had been taking clonazepam for years, since she was about 15 years old. She testified that she had been taking clonazepam and methadone for years and it never made her react in the way described in this case. She agreed that clonazepam has a label that says it may cause drowsiness, but she had taken it before testifying and did not feel drowsy. The appellant testified that she had taken cocaine a day or two before she was stopped by the police.

[24] The appellant testified that she believed she remained in the hospital for two and a half, almost three days, after she was brought there by the police. When she was discharged, she received a discharge plan. The discharge plan was filed at the trial on consent, although the use of this document was not clarified at trial. The appellant testified that she was told at the hospital that they suspected the nausea, vomiting and diarrhea were caused by a viral gastroenteritis and that she should keep eating and drinking as best as she could.

[25] On cross-examination the appellant agreed that she could not recall a lot of the details from the night she was stopped by the police. She agreed that her gastrointestinal system didn’t normally affect her memory. She also agreed that she had trouble understanding the question asked by the police and was confused about the buttons to be used to roll down the windows and unlock the vehicle doors.

[26] The appellant was cross-examined on the discharge plan. She agreed that it indicated that she had been in the hospital for thirty-six hours, not two to three days. The appellant agreed that the doctor had not made a finding that she had the flu. The appellant agreed that her illness could have interacted with the drugs she took in a way that impaired her.

General Principles of Law to Be Applied

Scope of Review

[27] Under s.686(1)(a) and s.822 of the Criminal Code, there are three possible bases upon which an appeal may be allowed. They are:

• (a) The verdict is unreasonable or cannot be supported by the evidence;
• (b) There was a wrong decision made on a question of law; and
• (c) There has been a miscarriage of justice.

[28] On appeal, a summary conviction appeal judge is not entitled to retry the case or to substitute their own view of the evidence for that of the trial judge: R. v. Smits, 2012 ONCA 524, para 67. A summary conviction appeal judge cannot interfere with a trial judge's factual findings unless they are unreasonable or unsupported by the evidence: R. v. Jackson, 2018 ONCA 460, para 29.

Findings of Credibility and Reliability

[29] Trial judges are uniquely placed to assess the credibility and reliability of witnesses and their findings at trial attract significant deference on appeal unless a palpable and overriding error can be shown. Findings of fact and factual inferences must be clearly wrong, unsupported by the evidence or otherwise unreasonable before an appellate court may interfere with them: R. v. Clark, 2005 SCC 2, para 9; R. v. Sheahan, 2017 ONCA 159, para 12; R. v. G.F., 2021 SCC 20, para 99; R. v. Dinardo, 2008 SCC 24, para 26; R. v. Gagnon, 2006 SCC 17, paras 10-11.

[30] In the review of a trial judge’s findings of credibility and reliability, appellate courts must be mindful of the "acute practical difficulties” trial judges face in articulating why a particular witness was believed or disbelieved, tasked as they are with interpreting the various impressions and inferences that arise from the evidence: R. v. J.A., 2024 ONCA 271, para 25; R. v. Kruk, 2024 SCC 7, para 84.

Reasons for Decision

[31] An appellate court must review a trial judge's reasons as a whole and functionally. A trial judge’s reasons must be sufficient and fulfil their function of explaining why an accused was convicted or acquitted, providing public accountability, and permitting effective appellate review. In reviewing reasons for decision, an appellate court "must not finely parse the trial judge's reasons in a search for error": R. v. G.F., 2021 SCC 20, paras 69, 76-82; R. v. Dinardo, 2008 SCC 24, para 26; R. v. Gagnon, 2006 SCC 17, paras 10-11; R. v. Kruk, 2024 SCC 7, paras 82-85; R. v. E.R., 2024 ONCA 747, para 4; R. v. R.E.M., 2008 SCC 51, [2008] 3 S.C.R. 3 at 15.

[32] In cases involving conflicting assertions and denials of conduct, a trial judge’s reasons must demonstrate an understanding of the relationship between reasonable doubt and credibility and that they applied this understanding to their analysis.

[33] In R. v. W.(D.), [1991] 1 S.C.R. 742, the Supreme Court suggested the following approach where an accused testifies:

• First, if you believe the evidence of the accused, obviously you must acquit;
• Secondly, if you do not believe the testimony of the accused but you are left in reasonable doubt by it, you must acquit;
• Thirdly, even if you are not left in doubt by the evidence of the accused, you must ask yourself whether, on the basis of the evidence which you do accept, you are convinced beyond a reasonable doubt by that evidence of the guilt of the accused.

[34] Appellate courts have recognized that the W.(D.) test is not a “magic incantation” that must be recited verbatim in every case. On appeal, the reviewing court must examine the trial judge’s reasons as a whole and determine whether they make it clear that the trial judge understood the correct burden and standard of proof: R. v. Dinardo, 2008 SCC 24, para 23.

[35] The critical question is whether the reasons, viewed as a whole, demonstrate the trial judge’s grasp of the substance of the relationship between reasonable doubt and the assessment of credibility. The essence of the W.(D.) test is that the prosecution carries the burden of proof, which is beyond a reasonable doubt, of each essential element of the offence. W.(D.) recognizes that the prosecution may not meet its burden despite the rejection of an accused’s explanation: R. v. Phan, 2013 ONCA 787, paras 21-24.

Misapprehension of Evidence

[36] A misapprehension of evidence renders a trial unfair and results in a miscarriage of justice where the trial judge is “mistaken as to the substance of material parts of the evidence and those errors play an essential part in the reasoning process resulting in a conviction”: R. v. Morrisey, para 93.

[37] Where the alleged misapprehension is respecting evidence used to assess the credibility of an accused or witness, the decision whether a miscarriage of justice has occurred turns on the extent to which the misapprehended evidence plays a role in the trial judge’s credibility assessment. If a trial judge mischaracterizes parts of an accused’s evidence that were central to the assessment of credibility, there is more likely to be a miscarriage of justice: R. v. S.R., 2022 ONCA 192, para 15.

[38] A mere misstatement or inaccuracy in a trial judge’s treatment of evidence does not constitute reversible error. An appellate court will only interfere where the misapprehension is of substance rather than detail, is material rather than peripheral to the trial judge’s reasoning, and the error plays an essential part of the reasoning process, not just of the narrative: R. v. S.R., 2022 ONCA 192, para 14; R. v. Cloutier, 2011 ONCA 484, para 60.

Unreasonable Verdict

[39] A verdict is reasonable if it is one that a properly instructed jury acting judicially could reasonably have rendered. This standard requires an appellate court to re-examine and to some extent re-weigh and consider the effect of the evidence to determine whether it meets this test: R. v. Biniaris, 2000 SCC 15, para 36.

[40] Where the Crown’s case depends on circumstantial evidence, the question becomes whether the trier of fact, acting judicially, could reasonably be satisfied that the accused’s guilt was the only reasonable conclusion available on the totality of the evidence: R. v. Villaroman, 2016 SCC 33, para 55.

Analysis

[41] I will deal with the first two grounds of appeal. I find that these grounds have not been made out in this case.

Was the Verdict Unreasonable

[42] The evidence at trial was that the appellant operated a conveyance in an erratic and dangerous manner. When she was stopped by the police, she had difficulty staying awake, comprehending what was going on, operating the windows and doors of the vehicle, and walking. Her symptoms became more pronounced when she was brought to the police station. When her blood was tested it revealed the presence of two central nervous system depressants, both of which, alone or in combination, can impair one’s ability to operate a motor vehicle. Many of the symptoms observed by the police in this case are associated with central nervous and depressant drugs.

[43] The appellant submits that the verdict was unreasonable because the drugs found in her blood were prescribed and the levels detected were within a therapeutic range. The fact that a drug is prescribed by a doctor at a certain therapeutic dose does not necessarily mean the prescribed drug will not impair one’s ability to operate a conveyance. It is commonplace to see labels on prescription bottles warning of the impairing effects of prescribed medication, such as “may cause drowsiness” and advising against operating machinery or driving. In this case, the toxicologist testified that the levels of central nervous system depressant drugs found in the appellant’s blood had the potential to impair her ability to operate a conveyance. This, coupled with the appellant’s poor driving and physical symptoms, provided an ample basis upon which a trier of fact, properly instructed, could reasonably conclude that the appellant’s ability to operate a conveyance was impaired by drug.

[44] As such, this ground of appeal must fail.

Did the Trial Judge Misapprehend the Evidence

[45] The appellant submits that the trial judge misapprehended the evidence of Warren with respect to the effect of long-term use of central nervous depressants on a person’s ability to operate a conveyance.

[46] In his reasons for decision, the trial judge summarized Warren’s evidence as follows:

Cross-examination presented a very specific scenario to him, chronic users of both methadone and clonazepam and he qualified his answer that under the guidance of a doctor on stable dosage that the impairment effect would be much less and it would be less likely to cause an issue of impairment to operate a conveyance, not that it wouldn’t, it would be less likely. Experts always like using these words, likely, and he did that.

[47] Warren’s evidence on this point was as follows:

So the chronic use of methadone, there has been some studies that have shown that if a person has been on methadone for a long period of time at stable dosing the impairing effects are must less, if at all, present. And the same with clonazepam, this level if it’s in a – certainly if it’s in a long-term use, stable dosing, people get used to it. So there is less likely it’s going to cause problems with respect to operating a conveyance in a person who is on a drug such as clonazepam and methadone for a long period of time, not changing their dosage, no changing how they’re taking it, there’s literature to support that opinion.

[48] When viewed functionally, the trial judge’s reasons demonstrate that he understood the general concept that long term, stable dosage use of methadone and/or clonazepam could be less likely to cause impairment of one’s ability to operate a conveyance. When viewed functionally, I do not find that the trial judge misapprehended the evidence of Warren on this point.

[49] The appellant submits that she did not get a “fair shake” with respect to her evidence. She submits that this amounted to a misapprehension of the evidence.

[50] The trial judge found that he had concerns with both the credibility and reliability of the appellant’s evidence. With respect to the appellant’s credibility, the trial judge pointed to inconsistencies in her evidence including her evidence about how long she had stayed at the hospital, and her evidence that she had been prescribed clonazepam when none was found with the other prescriptions in her vehicle and this drug was not listed in her list of prescriptions upon discharge from the hospital. The trial judge also found that the appellant was confrontational and non-responsive in certain aspects of her evidence. With respect to her reliability, the trial judge noted that the appellant had little memory of the evening in question, which was admitted by the appellant.

[51] I see no basis upon which to interfere with the trial judge’s findings of credibility or reliability. The trial judge was uniquely placed to assess the appellant’s credibility and reliability during the trial. The appellant has not been able to point to any palpable or overriding error in the way in which the trial judge approached her evidence. Nor has the appellant been able to point to an instance where the trial judge made an error in his appreciation of the content of her evidence.

[52] As such, this ground of appeal must fail.

Did the Trial Judge Err in His Application of W.(D.)

[53] The appellant submits that the trial judge committed an error in law in applying the steps as set out in R. v. W.(D.). Specifically, that the trial judge erred by not proceeding to the second step of the analysis which requires the court to consider whether, having rejected the evidence of the appellant, the appellant’s evidence nevertheless left him in reasonable doubt.

[54] The appellant testified that she was suffering from some type of gastro-intestinal virus and that this explained the bad driving and the other physical symptoms observed by the police. She conceded in cross-examination that it was possible that she was impaired by a combination of the drugs in her system and her illness. The appellant submitted at trial that some of her observed symptoms, which included vomiting and sweating, supported her evidence that she had a viral infection. She relied on the hospital discharge report filed at trial as supporting her evidence because it indicated a suspicion by the medical professionals that she may have had a viral infection.

[55] While the appellant acknowledged that methadone and clonazepam were found in her blood, she testified that she had been taking these drugs for years and they did not have an impairing effect on her. The appellant submits that the evidence of the toxicologist was capable of supporting her evidence on this point, that her long-term use of these drugs had mitigated their impairing effect on her.

[56] In his reasons for decision, the trial judge found that the appellant’s evidence was not credible or reliable. Immediately after finding her evidence not credible, the trial judge went on to find:

Based on that and reviewing the totality of the evidence I am therefore satisfied that the Crown has proven beyond a reasonable doubt that the cause of impairment was the drugs. We must remember Stellato, it’s not the level of impairment, it’s any level of impairment, and I agree that the gastro infection probably made things a lot worse, but the root cause was still the drugs. In my view therefore all elements of the offence have been proven beyond a reasonable doubt, she was operating a conveyance and there is evidence supported by the toxicology report that she had drugs in her system and that these drugs, maybe in combination with a viral gastro infection, caused her to be impaired and therefore I am satisfied beyond a reasonable doubt that she is guilty of this offence.

[57] The trial judge did not refer specifically to the steps as set out in R. v. W.(D.) in his reasons for decision. He was not required to do so. However, he was required to set out in his reasons his appreciation that, despite finding the appellant to be unreliable or not credible, he still was required to consider whether her evidence nevertheless left him with a reasonable doubt.

[58] The trial judge’s finding “Based on that and reviewing the totality of the evidence I am therefore satisfied that the Crown has proven beyond a reasonable doubt that the cause of impairment was the drugs.” leaves it unclear whether the trial judge moved from a rejection of the appellant’s evidence (the first step of W.(D.)) directly to the third step which requires a court to consider “even if you are not left in doubt by the evidence of the accused, you must ask yourself whether, on the basis of the evidence which you do accept, you are convinced beyond a reasonable doubt by that evidence of the guilt of the accused”.

[59] The trial judge found that he was satisfied that the Crown had proven, beyond a reasonable doubt, that the cause of impairment included the drugs taken by the appellant. This related to the actus reus of the offence.

[60] The actus reus of the offence involves operating or having the care or control of a conveyance while one’s ability to do so is impaired as a result of the ingestion of a drug. Any degree of impairment, ranging from slight to great is sufficient to constitute the actus reus. Further, the drug does not have to be the sole contributing factor in causing the person’s ability to be impaired. It is sufficient if the drug is a contributing factor: R. v. Toews; R. v. Stellato; R. v. Bartello, [1997] O.J. No. 2226 (Ont. C.A.), para 2; R. v. Caldwell, [2006] O.J. No. 3290 (Ont. S.C.J.), paras 10-13.

[61] In this case, the trial judge concluded:

In my view therefore all elements of the offence have been proven beyond a reasonable doubt, she was operating a conveyance and there is evidence supported by the toxicology report that she had drugs in her system and that these drugs, maybe in combination with a viral gastro infection, caused her to be impaired and therefore I am satisfied beyond a reasonable doubt that she is guilty of this offence.

[62] The Crown was required to prove, beyond a reasonable doubt, that the appellant possessed the requisite actus reus and mens rea. The mens rea for the offence of impaired operation of a conveyance by drug involves the voluntary consumption of a drug. Where it has been established that an accused was operating a conveyance while their ability to do so was impaired by a drug, a rebuttable presumption arises that their condition was voluntarily induced: R. v. King, para 63.

[63] What this means, practically, is that in most cases once the evidence establishes that the accused voluntarily consumed a drug that is found to have impaired their ability to operate a conveyance, the mens rea will have been established.

[64] However, the presumption that impairment by drug was voluntarily induced may be rebutted. This generally arises in cases where it is alleged that the accused was impaired by a drug that was prescribed to them by a doctor and in circumstances where the accused did not know (or was not reckless) about its potential impairing effects. In King, the Supreme Court noted at para. 69: “If it appears that the impairment was produced as a result of using a drug in the form of medicine or doctor’s order, and its effect was unknown to the accused, then the presumption is rebutted”.

[65] Even if a person consumes a prescribed drug, without being aware of (or reckless as to) its impairing effect, they may still be found to possess the requisite mens rea where they become aware of their impairment and proceed to operate a conveyance in the face of this knowledge. In King, at para. 68, the Supreme Court held that a person cannot escape liability having made a choice to proceed in the face of knowledge of their impairment: R. v. King, para 68.

[66] In the particular circumstances of this case, mens rea was a live issue that needed to be resolved. The appellant testified that she had been prescribed methadone and had been taking clonazepam for years. She testified that she did not experience impairing effects when she took these drugs. At trial, she relied on the evidence of the toxicologist that long-term use of these drugs could result in it being “less likely” that there would be problems with respect to operating a conveyance.

[67] The trial judge clearly rejected the appellant’s evidence that she was only impaired by her illness. In the end, he found he was satisfied that she was likely impaired by both the drugs in her system and her illness. However, this aspect of his decision dealt only with whether the actus reus had been established.

[68] I cannot tell from the reasons for decision if the trial judge considered whether the appellant’s evidence, even if rejected, nevertheless left him with a reasonable doubt with respect to the mens rea. That is, having been satisfied beyond a reasonable doubt that the drugs she consumed contributed to her impairment (actus reus), was the trial judge satisfied beyond a reasonable doubt that either (a) the appellant was aware of, or reckless as to, whether those drugs could cause impairment when she consumed them; or (b) even if she was not aware of their impairing effect, did she become aware that they had caused her to be impaired and chose to operate a conveyance despite this. While both of these conclusions were reasonably available to the trial judge on the evidence before him, a literal and functional review of the trial judge’s reasons do not indicate whether they were resolved on the second stage of W.(D.), which required him to consider whether the appellant’s evidence, even if rejected, left him with a reasonable doubt with respect to the mens rea.

[69] Given that the trial judge’s reasons leave it unclear whether he conducted this analysis as it related to the issue of mens rea, the appeal must be allowed.

Conclusion

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

The Honourable Madam Justice S.K. Stothart
Released: April 29, 2025