April 11, 2018
Doyon, Dufresne, Mainville
Appeal from a judgment of the Superior Court. Dismissed.
The appellant appeals from a judgment of the Superior Court allowing the appeal from an acquittal on a charge of driving with a blood alcohol level over the legal limit and ordering a new trial.
The appellant was wrong to allege that the presumption of identity under s. 258 of the Criminal Code (R.S.C. 1985, c. C-46) (Cr. C.) did not apply because he had not consumed any alcohol prior to driving his vehicle. The trial cannot be bifurcated to await the judge’s ruling on his testimony as to whether or not this claim has raised a reasonable doubt.
Moreover, expert evidence was not necessary to meet the requirement under s. 258(1)(d.1)(i) Cr. C. to show that the consumption scenario described by the accused is consistent with a concentration of alcohol in the blood that did not exceed the legal limit, because the Court had taken judicial notice of the fact that not consuming any alcohol for at least three days prior to the incident would necessarily lead to a result under 80 milligrams of alcohol per 100 millilitres of blood. However, when a person decides to drink alcohol after having driven a vehicle and thus places himself or herself in a situation where police officers have reasonable grounds to believe that an offence under s. 253 Cr. C. has been committed in the previous three hours, expert evidence must be presented to show that the consumption scenario submitted is consistent with the test results obtained. The trial judge could not reach such a conclusion on the basis of judicial notice alone.
*Summary by SOQUIJ
Text of the decision (French): Http://citoyens.soquij.qc.ca
English translation: Http://citoyens.soquij.qc.ca
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