



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Kraus, 2017 ONCA 458

DATE: 20170605

DOCKET: C61725

Juriansz, Pepall and Trotter JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Janina Kraus

Appellant

Richard Litkowski, for the appellant

Jennifer Epstein, for the respondent

Heard and released orally: May 29, 2017

On appeal from the conviction entered on July 27, 2015 by
    Justice Deena Baltman of the Superior Court of Justice.

REASONS FOR DECISION

[1]

The appellant appeals her convictions of impaired driving and dangerous
    driving causing bodily harm. She had driven across 3 lanes of oncoming traffic
    at high speed on a major highway and collided with another vehicle before
    crashing into the median.

[2]

The appellant submits that there was evidence upon which it could be
    found that the accident was a result of her falling asleep at the wheel. The
    question upon appeal, however, is whether there was evidence to support the
    trial judges finding that the appellant was guilty. We see no merit in the
    appellants argument that the trial judge erred by failing to deal with the
    possibility that the appellant had fallen asleep. Her own testimony and the
    defence position at trial was that she had not fallen asleep. Given the finding
    that the appellant had recently consumed alcohol, the inference she had fallen
    asleep would not have helped the defence in the circumstances of the case.

[3]

Nor do we see any merit in the appellants argument attacking the trial
    judges finding the appellant was impaired by alcohol. Counsel, it seems to us,
    attempts to reargue the case and have us reweigh the evidence. There is ample
    evidence supporting the finding. While the trial judge posed rhetorical
    questions not put to the appellant, we are not persuaded that the trial judge
    erred by considering the implausibility of the appellant having kept open
    bottles of alcohol in her car for several days. This is a matter the judge
    could well consider particularly in light of the finding the appellant admitted
    drinking several coolers that day.

[4]

The Crown concedes that the trial judge erred by taking judicial notice
    of the evaporation rate of alcohol.  The concession is appropriate.  However,
    we would apply the proviso. The appellants driving was extreme. There were
    numerous bottles of open and consumed alcohol in her vehicle. A cab driver and
    arresting officer smelled alcohol on her breath and noted her slurred speech.
    The breath technician, whose personal observations are admissible, made the
    same observations. The appellant told the treating nurse she had drunk 3
    coolers that day.  Absent the judicial notice of the evaporation rate taken by
    the trial judge, the only conclusion on the overwhelming evidence is that the
    verdict would have been the same regardless.

[5]

The appeal is dismissed.

R.G. Juriansz J.A.

S.E. Pepall J.A.

G.T. Trotter J.A.


