R. v. Stankewich

Canadian criminal law case law consists of court rulings and decisions from past judicial hearings and appeals.

These precedents guide courts and judges to interpret laws, especially when similar circumstances arise with a case before them.

If a current case closely resembles one with past withdrawn charges, the same legal reasoning should apply. This process ensures that similar cases receive consistent treatment.

In the R. v. Stankewich, 2006 ABPC 11 case, the accused faced two charges: impaired operation of a motor vehicle and operating a vehicle with a blood alcohol level over the legal limit (“over 80”).

During the trial, the Crown conceded that the impaired operation charge could not be proven beyond reasonable doubt, leading to a not guilty verdict on that count. For the “over 80” charge, Stankewich’s defense centered on “evidence to the contrary,” challenging both the presumptions of identity and accuracy of the blood alcohol readings.

Stankewich testified about his alcohol consumption, and a toxicologist provided expert opinion on his blood alcohol level at the time of driving and testing. The court found Stankewich’s testimony credible and, given the expert evidence, had reasonable doubt about his blood alcohol level exceeding the legal limit at the relevant times.

Consequently, Stankewich was also found not guilty of the “over 80” charge. The case highlights the critical role of witness credibility and expert testimony in DUI cases, especially when contesting the accuracy of breathalyzer results.

In the R. v. Stankewich case, Stankewich was charged with two counts of impaired driving.

The incident occurred on January 19, 2005, in Cochrane, Alberta. Police observed Stankewich’s vehicle flashing its headlights as it traveled west on Railway Street, near a bowling alley. They subsequently stopped the vehicle on 5th Avenue and 1st Street. Upon interaction, the police noted signs of impairment in Stankewich, including an odor of liquor, slurred speech, red eyes, and an admission of alcohol consumption.

A roadside breath test indicated a “fail,” leading to Stankewich’s arrest and transportation to the Cochrane RCMP detachment. There, he supplied two breath samples, which resulted in blood alcohol readings of 120 mg%. The charges against Stankewich included operating a motor vehicle while his ability was impaired by alcohol (Section 253(a) of the Criminal Code) and operating a motor vehicle with a blood alcohol level exceeding the legal limit – Drive over 80mgs (Section 253(b) of the Criminal Code).

In the case of R. v. Stankewich, the court rendered its decision on two charges of impaired driving.

For the first charge of impaired operation (Section 253(a) of the Criminal Code), the Crown conceded that they could not prove the charge beyond a reasonable doubt, leading to Stankewich being found not guilty.

The second charge, operating a vehicle with a blood alcohol concentration over the legal limit of 80 milligrams per 100 millilitres of blood (Section 253(b)), involved a more complex defense. Stankewich challenged the accuracy and identity of the blood alcohol readings, presenting his own testimony about his alcohol consumption and expert evidence from a toxicologist.

This expert testimony estimated his blood alcohol level at the time of driving and testing to be lower than the legal limit. After evaluating the evidence, the court found that there was a reasonable doubt about Stankewich’s blood alcohol level exceeding the legal limit at the relevant times. Consequently, Stankewich was acquitted of the “over 80” charge as well.

The case underscores the significance of credible personal testimony and expert evidence in refuting statutory presumptions in DUI cases, especially in challenging breathalyzer results.

The R. v. Stankewich case has important implications for accused persons in Canadian law, particularly in the context of DUI charges.

This case underscores the potential for accused individuals to effectively challenge statutory presumptions, such as those regarding blood alcohol content (BAC) levels in DUI cases. Stankewich’s successful challenge of the breathalyzer results, bolstered by personal testimony and expert evidence, demonstrates that accused individuals can raise a reasonable doubt about the accuracy of BAC readings.

This sets a precedent that mere presentation of breathalyzer results may not be sufficient for conviction if the accused can provide credible evidence to the contrary. The case emphasizes the court’s responsibility to thoroughly evaluate all evidence, including expert testimony, rather than relying solely on presumptions based on breathalyzer readings.

For accused persons, this means there is an avenue to contest DUI charges, especially when there are grounds to question the accuracy of the BAC measurements. It reinforces the principle of ‘innocent until proven guilty’ and ensures that convictions are based on a holistic assessment of all available evidence, upholding the fairness and integrity of the Canadian legal system.

In the Provincial Court of Alberta

Citation: R. v. Stankewich, 2006 ABPC 11

Reasons for Judgment of the Honourable Judge T.C. Semenuk

INTRODUCTION

[1] The accused is charged with impaired operation and “over 80” offences. On the impaired charge, the Crown conceded in argument that the charge had not been proven beyond a reasonable doubt, and he is found not guilty. On the “over 80” charge, the defence was “evidence to the contrary.” The accused challenged both the presumptions of identity, and accuracy. He testified as to his alcohol consumption on the date in question, and expert opinion evidence was adduced as to his blood/alcohol level at the time of driving, and at the time of testing. The credibility of the accused is in issue. For the reasons that follow, the accused’s evidence raises a reasonable doubt as to his blood/alcohol level at the time of driving, and at the time of testing, and on the “over 80” charge, he is also found not guilty.

FACTS

[2] The accused is charged in an Information as follows:

Count 1: On or about the 19th day of January, 2005, at or near Cochrane, Alberta, did unlawfully operate a motor vehicle while his ability to operate a motor vehicle was impaired by alcohol or a drug, contrary to Section 253(a) of the Criminal Code of Canada.

Count 2: On or about the 19th day of January, 2005, at or near Cochrane, Alberta, having consumed alcohol in such a manner that the concentration thereof in his blood exceeded 80 milligrams of alcohol in 100 millilitres of blood, did unlawfully operate a motor vehicle, contrary to Section 253(b) of the Criminal Code of Canada.

[3] The Crown’s case at trial was adduced by way of a written Agreed Statement of Facts, marked Exhibit 1, and read into the record by Crown Counsel as follows:

On January 19, 2005, at 1901 hours, police observed a motor vehicle travelling west on Railway St., in Cochrane, Alberta, by the bowling alley flashing its’s headlights. The motor vehicle was stopped in the parking lot of the Fas Gas on 5th Ave. and 1st St. The driver supplied a sample of his breath on the roadside screening device and the result was a “fail.” The accused was arrested, Chartered, a breath demand was read, and he was cautioned. He was transported back to the Cochrane RCMP detachment where he used the phone to contact legal Counsel. The accused then supplied two samples of his breath, was fingerprinted and photographed and released on a promise to appear in Court. The accused displayed the following signs of impairment: odor of liquor, admitted alcohol consumption, slurred speech, and red eyes.

[4] On agreement of Counsel a Certificate of Analyses was also adduced in evidence and marked as Exhibit 2. A true copy of the Certificate was given to the accused, along with other documents, when he was released. The Certificate indicates that at 1952 hours and at 2014 hours, blood/alcohol readings from the accused of 120 mgs% were recorded.

[5] The accused testified in his own defence. As well, Dr. Malicky, a well known toxicologist testified for the defence.

[6] In examination-in-chief, the accused testified that on the date in question, he was 24 years old, weighed 135 lbs., and was 5 ft. 9 in. tall. He ran his own framing business and employed 5 people. He resided in a common law relationship, and did not have criminal record.

[7] On the day prior to the date in question, he did not consume any alcohol. On the date in question he attended a friend’s funeral in Cochrane at the Heritage Center. He left the funeral at 12:45 pm and drove over to a bar in town called Ducks on the Roof. He was with his girlfriend at the time, and they arrived at the bar at about 1:00 pm. While at the bar he drank 2 bottles of Labatt’s Blue beer. The bottles were the regular 341ml. size, and the beer was 5% by volume alcohol, as indicated on the label.

[8] They left Ducks at about 5:30 pm., and drove over to another bar in town called The Texas Gate, arriving there at about 5:45 pm. They remained there until 6:50 pm. While at the Texas Gate, he drank 2 bottles of Pilsner beer. The bottles were the regular 341ml. size, and the beer was 5% by volume alcohol, as indicated on the label.

[9] Other than the beer, he had no more alcohol to drink prior to being stopped by the police.

[10] On cross-examination, the accused admitted to being sad and emotional on the day of the funeral. He had attended the funeral with his girlfriend and about 60 other friends.

[11] At the first bar, Ducks on the Roof, he ordered his first beer at about 1:00 pm, shortly after arriving, and the second beer at about 2:30 pm. After that, he only drank water. At about 5:00 pm he ate some lasagne, prior to driving to the Texas Gate.

[12] He admitted going to the Texas Gate because the liquor prices at the bar were reduced that night. In addition to the 2 beers that he drank there, he also ate a plate of french fries with gravy at about 6:30 pm., just prior to leaving.

[13] On being pressed by Crown Counsel as to the amount of alcohol he consumed that day after the funeral, the accused maintained that he was very careful about the amount that he consumed, and spacing his drinks out. He testified that he respects the law related to drinking and driving.

[14] Dr. Malicky was qualified as an expert witness in the fields of absorption and elimination of alcohol from the human body, the effect of alcohol on the human body, and the operation of the Borkenstein Breathalyzer and Intoxilyzer instruments.

[15] In examination-in-chief, he testified that he did an alcohol elimination test on the accused on April 20, 2005, and determined that his rate of elimination was 19 mgs% per hour. Given his age, height, weight, and alcohol consumption on the date in question, he opined that at the time he was stopped by the police, at the tested elimination rate, his blood/alcohol level would have been 31 mgs%.

[16] Conceding that rates of elimination can vary, he testified that according to the scientific literature, most people eliminate alcohol at a rate between 10 and 20 mgs% per hour. Using that range, and applying it to the accused in the circumstances of this case, at the time the accused was stopped by police, his blood/alcohol level could have been as high as 52 mgs%, or as low as 30 mgs%.

[17] Dr. Malicky also testified that using that range, at the time of testing recorded in the Certificate, the accused’s blood/alcohol level could have been as high 42 mgs%, or as low as 10 mgs%. At the tested elimination rate, his blood/alcohol level would have been 12 mgs%.

[18] Finally, if the accused had consumed a total of 9 bottles of beer on the date in question, his blood/alcohol level would match the readings of 120 mgs% recorded in the Certificate.

[19] On cross-examination, Dr. Malicky testified that the absorption of alcohol by the human body is slowed down with the consumption of food. In the circumstances of this case, if he were to take into account the food eaten by the accused on the date in question, his calculations as to his blood/alcohol level at the time he was stopped by the police, and at the time of testing would be high.

ISSUES

[20] The defence on the “over 80” charge is “evidence to the contrary.” The credibility of the accused is in issue. Aside from the viva voce evidence given by the accused, what other evidence, in law, can be considered in assessing his credibility?

LAW AND ANALYSIS

[21] This Court in R v Cooper (2005) ABPC 258, recently addressed many of the issues to be decided in this case. Cooper (supra), however, was delivered about 1 month prior to the recent decision of the SCC in R v Boucher (2005) 2005 SCC 72 (CanLII), SCJ No. 73. Boucher (supra), changed the law relating to “evidence to the contrary” cases in material respects. This Court in R v Hauck (2006) ABPC 4, had occasion to consider and apply the new principles enunciated in Boucher (supra). In deciding this case, I adopt and apply the principles stated in Boucher (supra), as summarized by me in Hauck (supra).

[22] The evidence adduced as “evidence to the contrary” in this case was led to rebut both presumptions of accuracy and identity. It was evidence that the accused’s blood/alcohol level at the time of testing, and at the time of driving, did not exceed 80 mgs%. Each of the

presumptions contained in sections 258(1)(c), 258(1)(d.1), and 258(1)(g) of the Criminal Code, as explained in Boucher (supra), was challenged.

[23] Applying the principles stated in Boucher (supra), and summarized by this Court in Hauck (supra), I would make the following observations. Firstly, the evidentiary foundation supporting the expert opinion in this case is based solely on the viva voce evidence of the accused. No other defence witnesses were called to confirm his evidence of alcohol consumption, and no receipts or other documentary evidence was adduced. Secondly, although there is evidence of a “fail” reading on the roadside screening test, there is no evidence before the Court as to what that reading connotes in terms of the accused’s blood/alcohol level at the time of testing. Thirdly, contrary to the decisions in R v Generoux (2005) ABQB 202 and R v Doig (2005) ABQB 442, and in accordance with the decision in Boucher (supra), the readings in the Certificate of Analyses cannot be used in assessing the credibility of the accused in this case. Fourthly, absent expert opinion evidence in this case as to the tolerance of the accused to alcohol, the indicia of impairment displayed by him when stopped by police has no evidentiary value in assessing the credibility of the accused.

[24] Applying the test enunciated by the SCC in R v Proudlock (1979) 1978 CanLII 15 (SCC), 1 SCR 525, affirmed by the SCC in Boucher (supra), in assessing the credibility of the accused’s evidence in this case, I cannot say that his evidence might not reasonably be true. There was nothing in the demeanor of the accused that was suspicious, he was not evasive, and he answered all questions put to him in a forthright manner. His evidence as to alcohol consumption on the date in question was not shaken on cross-examination by Crown Counsel. Although the accused’s evidence as to alcohol consumption was not confirmed by any other witnesses, or by receipts, or other documentary evidence, I have no reason to reject it. There is no other opinion evidence that diminishes the reliability of his evidence. The readings recorded in the Certificate cannot, in law, be considered in assessing his credibility. Although there is evidence of a “fail” reading on the roadside test, there is no evidence as to what that reading connotes in terms of his blood/alcohol level at the time.

[25] Having regard to the totality of the evidence that can be considered, and despite the “fail” reading on the roadside test, the Court is left with a reasonable doubt.

[26] In the result, the Crown’s prima facie case created by each of the statutory presumptions has been rebutted, and the accused is found not guilty on the “over 80” charge, Count 2 in the Information.

[27] The Crown having conceded in argument that the impaired charge had not been proven, the accused is also found not guilty on Count 1 in the Information.