New & Notable: Affirming necessity to point to evidence to rebut presumption of voluntary consumption

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.
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