R. v. Bachman (G.J.), (2001) 210 Sask.R. 209 (QB)

• Judge: McIntyre, J.
• Court: Court of Queen's Bench of Saskatchewan (Canada)
• Case Date: July 26, 2001
• Jurisdiction: Saskatchewan
• Citations: (2001), 210 Sask.R. 209 (QB);2001 SKQB 372

R. v. Bachman (G.J.) (2001), 210 Sask.R. 209 (QB)

MLB headnote and full text

Temp. Cite: [2001] Sask.R. TBEd. AU.022

In The Matter Of an Appeal by Glenn J. Bachman from the conviction of the appellant by his Honour Judge R. Rathgerber, a Judge of the Provincial Court for the Province of Saskatchewan, at Melville, Saskatchewan, on December 14, 2000, convicting the appellant of the offence that he did on or about the 29th day of March, A.D. 2000, at Fenwood, in the Province of Saskatchewan did, having consumed alcohol in such a quantity that the concentration thereof in his blood exceeded 80 mg. of alcohol, in 100 ml. of blood, operate a motor vehicle contrary to s. 253(b) and s. 255(1) of the Criminal Code

Glenn J. Bachman (appellant) v. Her Majesty The Queen (respondent)

(2000 Q.B. No. 500; 2001 SKQB 372)

Indexed As: R. v. Bachman (G.J.)

Saskatchewan Court of Queen's Bench

Judicial Centre of Yorkton

McIntyre, J.

July 26, 2001.

Summary:

The accused was convicted of driving a motor vehicle while having an excessive blood-alcohol content. The accused appealed.

The Saskatchewan Court of Queen's Bench allowed the appeal and ordered a new trial. The trial judge erred in failing to deal with the independent evidence of the tavern owner serving the accused regarding the issue of whether there was "evidence to the contrary" sufficient to rebut the presumption in s. 258(1)(c) of the Criminal Code.

Criminal Law - Topic 1362

Motor vehicles - Impaired driving - Evidence and proof - [See Criminal Law - Topic 1374 ].

Criminal Law - Topic 1374

Motor vehicles - Impaired driving - Breathalyzer or blood sample - Evidence and certificate evidence - Evidence to the contrary - The accused was charged with having care and control of a motor vehicle while having an excessive blood-alcohol level - At trial, the accused, who was six feet tall and 255 pounds, asserted that he drank six or seven beer in a six or six and one-half hour span - The tavern owner corroborated his consumption and an expert in alcohol absorption and elimination testified that given such consumption, the accused's blood-alcohol level at the time he was stopped would have been .700 if the accused exhibited the average rate of absorption and elimination - The trial judge rejected the accused's evidence as to consumption and found that there was no "evidence to the contrary" under s. 258(1) of the Criminal Code - The Saskatchewan Court of Queen's Bench allowed the accused's appeal and ordered a new trial - The trial judge failed to consider whether the bartender's independent evidence was evidence to the contrary.

Cases Noticed:

R. v. Andres, [1982] 2 W.W.R. 249; 1 Sask.R. 96 (C.A.), refd to. [para. 6].

R. v. Gibson (1992), 100 Sask.R. 88; 18 W.A.C. 88 (C.A.), refd to. [para. 9].

R. v. Kaminski (1992), 100 Sask.R. 192; 18 W.A.C. 192 (C.A.), refd to. [para. 13].

R. v. Patel, [1999] O.J. No. 3995 (Sup. Ct.), refd to. [para. 14].

R. v. Gilbert (T.) (1994), 74 O.A.C. 56; 92 C.C.C.(3d) 266 (C.A.), refd to. [para. 14].

R. v. Mizzi, [2001] O.J. No. 602 (Sup. Ct.), refd to. [para. 15].

R. v. Madraga (G.A.) (2001), 203 Sask.R. 78; 240 W.A.C. 78 (C.A.), refd to. [para. 19].

R. v. Barrett (D.), [1995] 1 S.C.R. 752; 179 N.R. 68; 80 O.A.C. 1; 96 C.C.C.(3d) 319, refd to. [para. 19].

R. v. Yebes, [1987] 2 S.C.R. 168; 78 N.R. 351; 36 C.C.C.(3d) 417; 59 C.R.(3d) 108; 17 B.C.L.R.(2d) 1; [1987] 6 W.W.R. 97; 43 D.L.R.(4th) 424, refd to. [para. 20].

R. v. Biniaris (J.), [2000] 1 S.C.R. 381; 252 N.R. 204; 134 B.C.A.C. 161; 219 W.A.C. 161; 143 C.C.C.(3d) 1; 32 C.R.(5th) 1, refd to. [para. 20].

Statutes Noticed:

Criminal Code, R.S.C. 1985, c. C-46, sect. 686(1) [para. 6].

Authors and Works Noticed:

Edgar, Allen C., Evidence to the Contrary and Over 80, 49 M.V.R.(3d) 64, pp. 75, 80 [para. 9].

Counsel:

David G. Kreklewich, for the appellant;

Todd J. Wellsch, for the respondent.

This appeal was heard before McIntyre, J., of the Saskatchewan Court of Queen's Bench, Judicial Centre of Yorkton, who delivered the following judgment on July 26, 2001.