Concerned citizens of Parry Sound called police to report Mark Jensen’s erratic driving and then continued to follow him. When police arrived at the dock where Jensen had stopped, they found him passed out behind the wheel. He reeked of alcohol and was clearly impaired. His blood alcohol content was .29. The Crown’s case was admitted. Jensen testified and argued that he was in a state of non-insane automatism while he was driving. He was despondent over his brother’s death, had been drinking heavily in the preceding weeks and was confused. He had no recollection of purchasing or drinking the alcohol found in his system on the night in question. The trial judge rejected the defence of non-insane automatism because no expert evidence was called but went on to acquit Jensen on the basis that he had a reasonable doubt as to whether Jensen had the requisite mens rea for the offences. The Summary Conviction Appeal judge granted the Crown’s appeal and found that the trial judge erred in law because there was no evidentiary basis upon which the presumption that the accused consumed alcohol voluntarily before driving could be rebutted. A conviction was substituted because the evidence, properly viewed, was overwhelming: 2012 ONSC 3325. The Ontario Court of Appeal denied leave to appeal: 2012 ONCA 878.

The evidence called on behalf of Jensen at trial established that about a week before he was charged, he had fallen asleep at a traffic light and had to be awakened by another driver after sleeping through two green lights. He had not been drinking. Jensen testified that he had no recollection of the day he was charged other than having spoken to his ex-wife a number of times. Not only did he not have any memory of buying and drinking alcohol; he also couldn’t recall telling the breath technician that he’d had 20 oz of rye or various attendants at the hospital that he’d been drinking on the side of the road. The breath technician and hospital staff’s memories were a little clearer it seems, as they were able to provide this evidence as part of the Crown’s case.

The trial judge correctly applied the decision of R. v. Stone, [1999] 2 S.C.R. 290 in rejecting the defence of non-insane automatism because no expert evidence was called in support of that defence.

However, he went astray in the way he applied the test in R. v. King, [1962] S.C.R. 746 which provides that the accused’s impairment is deemed to be a result of intentional and self-induced intoxication unless the accused adduces evidence to the contrary. Put another way, “once the Crown establishes the impaired operation, then the accused must establish on the balance of probabilities that he or she consumed the intoxicants either unintentionally or unknowingly.”[2012 ONSC 3325, para. 12] It was not sufficient for the accused to lead evidence that he’d blacked out about a week before, could not recall what happened on the relevant date and that his ex-wife thought he sounded “a little off.” The fact remained that there was no evidence that his consumption of alcohol on the day in question was unknowing or accidental.

Del Frate, J. sitting on the Summary Conviction Appeal made the following wry comments:

...In my view, the proper evidentiary basis did not exist for [the trial judge] to conclude that the state of confusion existed prior to the respondent commencing the drinking. There is no evidence on when the respondent commenced drinking. For him to have concluded that the confusion arose prior to the commencement of the drinking is conjecture and speculation.

The confusion that his ex-wife detected at around 4 p.m. and shortly before the respondent was arrested, could just as easily have been caused by the ingestion of half a bottle of rye.

Likewise, the respondent’s ability to recall the events of that day could just as easily have been attributable to the amount of alcohol that he consumed.

Besides, his lack of recollection contradicts the respondent’s uncontested evidence, being the statements made to the breathalyser officer and to one of the attending physicians whereby he accurately tells them that he consumed half a bottle of rye and had consumed it by the roadside.” [para.24-27][pun intended]

Justice Del Frate determined that, instead of ordering a new trial, he would substitute a conviction because “a trial judge in a new trial, applying the proper test, would have no hesitation in concluding that the respondent was impaired on the day in question.”[para 38].

In denying leave, the Ontario Court of Appeal gave Jensen’s argument even shorter shrift: “...it was simply not open to the trial judge to entertain a doubt about whether the appellant’s conduct in consuming alcohol was voluntary...” [2012 ONCA 878 at para 3].