R. v. Shoemaker (J.J.), (2011) 261 Man.R.(2d) 182 (PC)

• Judge: Harapiak, P.C.J.
• Court: Provincial Court of Manitoba (Canada)
• Case Date: February 24, 2011
• Jurisdiction: Manitoba
• Citations: (2011), 261 Man.R.(2d) 182 (PC);2011 MBPC 15

R. v. Shoemaker (J.J.) (2011), 261 Man.R.(2d) 182 (PC)

MLB headnote and full text

Temp. Cite: [2011] Man.R.(2d) TBEd. MR.008

Her Majesty The Queen v. Jason James Shoemaker (accused)

(2011 MBPC 15)

Indexed As: R. v. Shoemaker (J.J.)

Manitoba Provincial Court

Dauphin Centre

Harapiak, P.C.J.

February 24, 2011.

Summary:

The accused was charged with impaired driving and driving over .08.

The Manitoba Provincial Court convicted the accused of driving while having an excessive blood-alcohol content. The court, however, dismissed the impaired driving charge.

Criminal Law - Topic 1362

Motor vehicles - Impaired driving - Evidence and proof - A police officer saw snowmobiles speeding on groomed trails - Later when the snowmobiles pulled into town, the officer had one of the snowmobilers, the accused, provide breath samples for analysis - The accused blew a fail on the roadside screening device - There was an odour of alcohol and the accused had glossy and reddened eyes - He was charged with impaired driving - The Manitoba Provincial Court acquitted the accused of impaired driving - The court declined to consider the manner of driving as an indicator of impairment because the court was not persuaded that the snowmobile that the officer saw on the groomed trail was the one the accused was driving - The accused's eyes could be explained by the cold and wind - The officer did not have a subjective belief that the accused was impaired - Without the roadside test he would not even have grounds to arrest him for driving over .08 or impaired driving - See paragraphs 44 to 47.

Criminal Law - Topic 1374

Motor vehicles - Impaired driving - Breathalyzer or blood sample - Evidence and certificate evidence (incl. evidence tending to show) - A police officer demanded that a snowmobiler, the accused, provide breath samples for analysis - The samples were not taken within two hours of driving; therefore, the Crown could not rely on the presumption (Criminal Code, s. 258(1)(c)) - The Crown therefore presented expert evidence as to the accused's blood-alcohol content based, inter alia, on the assumption that there had been no bolus drinking - The Crown urged the court to draw a common sense inference of regular social drinking in reliance on R. v. Paszczenko (Ont. C.A. 2010) and convict the accused - Defence counsel submitted that it was up to the Crown to prove the expert's assumptions beyond a reasonable doubt, including the absence of bolus drinking, which it did not do - The Manitoba Provincial Court agreed with the Paszczenko decision and the line of cases leading to it, that very slight circumstantial evidence would be sufficient, combined with the common sense knowledge of how people drink and normally behave, to meet the Crown's burden when disproving bolus drinking - The Crown met the burden in this case and a conviction was entered - See paragraphs 1 to 43.

Criminal Law - Topic 1374

Motor vehicles - Impaired driving - Breathalyzer or blood sample - Evidence and certificate evidence (incl. evidence tending to show) - Under s. 258(1)(c) of the Criminal Code, breath samples taken within two hours of driving, under certain conditions, were presumed to reflect the blood-alcohol content at the time of driving - The Manitoba Provincial Court reviewed the evolution of the s. 258(1)(c) case law - See paragraphs 10 to 33.

Criminal Law - Topic 1376

Motor vehicles - Impaired driving - Breathalyzer or blood sample - Proof of blood-alcohol content - [See both Criminal Law - Topic 1374 ].

Cases Noticed:

R. v. Deruelle, [1992] 2 S.C.R. 663; 139 N.R. 56; 114 N.S.R.(2d) 1; 313 A.P.R. 1; 75 C.C.C.(3d) 118, refd to. [para. 5].

R. v. Paszczenko (M.) et al. (2010), 272 O.A.C. 27; 2010 ONCA 615, refd to. [para. 8].

R. v. McLean (P.S.) (2010), 290 B.C.A.C. 75; 491 W.A.C. 75; 2010 BCCA 341, refd to. [para. 8].

R. v. Grosse (P.) (1996), 91 O.A.C. 40; 107 C.C.C.(3d) 97; 29 O.R.(3d) 785; 1996 CanLII 6643 (C.A.), refd to. [para. 8].

R. v. Bulman (W.) (2007), 221 O.A.C. 210; 2007 ONCA 169, refd to. [para. 8].

R. v. Hall (S.) (2007), 219 O.A.C. 251; 83 O.R.(3d) 641; 2007 ONCA 8, refd to. [para. 8].

R. v. Smith (T.I.), [2007] Man.R.(2d) Uned. 68; 2007 MBPC 44, refd to. [para. 8].

R. v. Evans, 2008 ONCJ 778, refd to. [para. 8].

R. v. Nelson (1982), 16 Sask.R. 391 (Dist. Ct.), refd to. [para. 10].

R. v. Reed (1982), 18 Sask.R. 357 (Q.B.), refd to. [para. 12].

R. v. Drummond (J.B.) (2000), 188 Sask.R. 173; 2000 SKQB 15, refd to. [para. 18].

R. v. Turgeon (L.G.) (2002), 225 Sask.R. 108; 2002 SKPC 85, refd to. [para. 20].

R. v. Noble (S.J.), [1997] 1 S.C.R. 874; 210 N.R. 321; 89 B.C.A.C. 1; 145 W.A.C. 1; 114 C.C.C.(3d) 385, refd to. [para. 22].

R. v. Bulman (W.) (2007), 221 O.A.C. 210; 2007 ONCA 169, refd to. [para. 23].

R. v. Stellato (T.), [1994] 2 S.C.R. 478; 168 N.R. 190; 72 O.A.C. 140; 90 C.C.C.(3d) 160, refd to. [para. 45].

R. v. Andrews (M.A.) (1996), 178 A.R. 182; 110 W.A.C. 182; 1996 ABCA 23, refd to. [para. 45].

Counsel:

J. Barclay, for the Crown;

D. Kreklewich, for the accused.

This matter was heard before Harapiak, P.C.J., of the Manitoba Provincial Court, Dauphin Centre, who delivered the following decision orally on February 24, 2011.