R. v. Schmidt (M.P.), 2012 YKCA 12

• Judge: Groberman, Hinkson and Harris, JJ.A.
• Court: Court of Appeal (Yukon Territory)
• Case Date: November 05, 2012
• Jurisdiction: Yukon
• Citations: 2012 YKCA 12;(2012), 342 B.C.A.C. 1 (YukCA)

R. v. Schmidt (M.P.) (2012), 342 B.C.A.C. 1 (YukCA);

    585 W.A.C. 1

MLB headnote and full text

Temp. Cite: [2013] B.C.A.C. TBEd. OC.011

Her Majesty the Queen (respondent) v. Michael Peter Schmidt (appellant)

(YU696; 2012 YKCA 12)

Indexed As: R. v. Schmidt (M.P.)

Yukon Court of Appeal

Groberman, Hinkson and Harris, JJ.A.

November 9, 2012.

Summary:

The Yukon Territory Supreme Court, in a decision reported at [2011] Yukon Cases Uned. 82, acquitted the accused of two counts of driving with a blood alcohol concentration over .08 thereby causing bodily harm and two counts of dangerous driving. However, the court found the accused guilty of two counts of impaired driving causing bodily harm. The accused appealed from the convictions.

The Yukon Court of Appeal allowed the appeal, set aside the convictions for impaired driving causing bodily harm and ordered a new trial. The odour of alcohol in and of itself was not an indicium of impairment. An individual who was at the scene said that the accused was crying, which provided an explanation for his watery, glassy eyes. Consumption of alcohol in and of itself did not permit the inference that the consumer was impaired. It was unreasonable to infer impairment based upon the accused's consumption of alcohol, and the trial judge erred in doing so. As for the accused's speed prior to the accident, clearly he was driving in excess of the speed limit of 90 k.m.h. The accused had travelled for a considerable distance at speeds of up to 120 k.m.h. without incident prior to the accident. It was not reasonable to find that his speed was indicative of impairment, and the trial judge erred in so finding. The trial judge's finding that the accused's reaction to the icy road showed that he was impaired was also an unreasonable inference on the evidence before him. Even taken collectively, the factors here were insufficient to support the finding of impairment.

Criminal Law - Topic 1362

Offences against person and reputation - Motor vehicles - Impaired driving - Evidence and proof - See paragraphs 1 to 40.

Criminal Law - Topic 1362.1

Motor vehicles - Impaired driving - Impaired driving causing injury or death - See paragraphs 1 to 40.

Criminal Law - Topic 1400

Motor vehicles - Impaired driving causing death or bodily harm - Evidence and proof - See paragraphs 1 to 40.

Cases Noticed:

R. v. Beatty (J.R.), [2008] 1 S.C.R. 49; 371 N.R. 119; 251 B.C.A.C. 7; 420 W.A.C. 7; 2008 SCC 5, refd to. [para. 10].

R. v. Best (T.), [2012] O.A.C. Uned. 346; 2012 ONCA 421, refd to. [para. 13].

R. v. Stellato (T.) (1993), 61 O.A.C. 217 (C.A.), affd. [1994] 2 S.C.R. 478; 168 N.R. 190; 72 O.A.C. 140, refd to. [para. 15].

R. v. Andrews (M.A.) (1996), 178 A.R. 182; 110 W.A.C. 182; 1996 ABCA 23, refd to. [para. 15].

R. v. Campbell (W.S.) (1991), 87 Nfld. & P.E.I.R. 269; 271 A.P.R. 269 (P.E.I.C.A.), refd to. [para. 18].

Counsel:

K. Hawkins, for the appellant;

E. Marcoux, for the respondent.

This appeal was heard on November 5, 2012, at Whitehorse, Yukon, before Groberman, Hinkson and Harris, JJ.A., of the Yukon Court of Appeal. The following reasons for judgment of the Court of Appeal were delivered orally by Hinkson, J.A., on November 9, 2012.