The Crown appealed the acquittal of the respondent on charges of impaired driving and exceeding the breathalyzer limit.
The trial judge had acquitted the respondent, finding that impairment was not proven beyond a reasonable doubt and that breath samples were not taken within the two-hour period mandated by the Criminal Code, as the exact time of the accident could not be established.
The Crown argued the trial judge failed to consider witness evidence of impairment, erred in not convicting on the included offence of care and control, and failed to apply the presumption of identity.
The appeal court dismissed all grounds, upholding the trial judge's findings on witness credibility, rejecting the attempt to change the particulars of the offence to a later time of care and control, and affirming the proper application of reasonable doubt arising from a lack of evidence.
