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,  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,  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].