R. v. Albus (C.), (2015) 467 Sask.R. 232 (CA)

JudgeHerauf, Jackson and Caldwell, JJ.A.
CourtCourt of Appeal (Saskatchewan)
Case DateJune 16, 2015
JurisdictionSaskatchewan
Citations(2015), 467 Sask.R. 232 (CA);2015 SKCA 121

R. v. Albus (C.) (2015), 467 Sask.R. 232 (CA);

    651 W.A.C. 232

MLB headnote and full text

Temp. Cite: [2015] Sask.R. TBEd. NO.066

Corey Albus (appellant) v. Her Majesty the Queen (respondent)

(CACR2487; 2015 SKCA 121)

Indexed As: R. v. Albus (C.)

Saskatchewan Court of Appeal

Herauf, Jackson and Caldwell, JJ.A.

November 18, 2015.

Summary:

The accused was convicted of having care and control of a vehicle while having a blood alcohol level in excess of the legal limit. He appealed.

The Saskatchewan Court of Queen's Bench, in a decision reported at (2014), 450 Sask.R. 136, dismissed the appeal. The accused sought leave to appeal.

The Saskatchewan Court of Appeal granted leave to appeal, allowed the appeal and ordered a new trial.

Criminal Law - Topic 1374

Motor vehicles - Impaired driving - Breathalyzer or blood sample - Evidence and certificate evidence (incl. evidence tending to show) - [See second Criminal Law - Topic 7664 ].

Criminal Law - Topic 7470

Summary conviction proceedings - Appeals - General - Restriction on arguments on appeal - [See both Criminal Law - Topic 7664 ].

Criminal Law - Topic 7633

Summary conviction proceedings - Appeals - New trials - Grounds - [See second Criminal Law - Topic 7664 ].

Criminal Law - Topic 7664

Summary conviction proceedings - Appeals - Grounds - Where law changed after trial but before appeal heard - At the time of the accused's impaired driving trial, in order to rebut the presumption in s. 258(1)(c)(ii) of the Criminal Code that the breath tests accurately reflected the accused's actual blood alcohol content at the time of the offence, the accused had to show that (1) the instrument had malfunctioned or was operated improperly; (2) the malfunction or improper operation resulted in readings exceeding .08; and (3) the accused's blood alcohol content would not have exceeded .08 at the time of the offence - The accused was convicted - After the decision was rendered, R. v. St-Onge Lamoureux (A.) (2012 S.C.C.) struck down the second two requirements of the test as unconstitutional - On summary conviction appeal, the accused asserted that if St-Onge Lamoureux (A.) had been decided prior to his trial he would have conducted the trial differently by calling evidence to show that the breath test results were in error - The appeal was dismissed - The accused appealed - The Saskatchewan Court of Appeal set out the circumstances in which a new issue arising between the trial and the appeal could be raised on appeal - The appellant had to be "in the system" in the sense that the appeal was still extant - There had to have been a "fundamental restatement of the law" that overruled established authority - An incremental change was not sufficient - A lack of an evidentiary record was not necessarily fatal if the law had "dramatically shifted" between the conviction and the appeal - See paragraphs 13 to 27.

Criminal Law - Topic 7664

Summary conviction proceedings - Appeals - Grounds - Where law changed after trial but before appeal heard - At the time of the accused's impaired driving trial, in order to rebut the presumption in s. 258(1)(c)(ii) of the Criminal Code that the breath tests accurately reflected the accused's actual blood alcohol content at the time of the offence, the accused had to show that (1) the instrument had malfunctioned or was operated improperly; (2) the malfunction or improper operation resulted in readings exceeding .08; and (3) the accused's blood alcohol content would not have exceeded .08 at the time of the offence - The accused was convicted - After the decision was rendered, R. v. St-Onge Lamoureux (A.) (2012 S.C.C.) struck down the second two requirements of the test as unconstitutional - On summary conviction appeal, the accused asserted that if St-Onge Lamoureux (A.) had been decided prior to his trial he would have conducted the trial differently by calling evidence to show that the breath test results were in error - The appeal was dismissed - The accused appealed - The Saskatchewan Court of Appeal allowed the appeal, ordering a new trial - St-Onge Lamoureux (A.) declared that portions of s. 258(1)(c) violated an accused's right to be presumed innocent and severed those portions - This was a fundamental restatement of the law that overruled previous authority - It was not an incremental change that precluded the accused from raising the new issue on appeal - A new trial was necessary - The accused had to create a sufficient evidentiary foundation to show that the machine was malfunctioning or was operated improperly - There was a potential for injustice if the accused was not permitted to pursue the new defence that was made available as a result of the law's restatement - See paragraphs 28 to 45.

Cases Noticed:

R. v. St-Onge Lamoureux (A.), [2012] 3 S.C.R. 187; 436 N.R. 199; 2012 SCC 57, consd. [para. 2].

R. v. Wigman, [1987] 1 S.C.R. 246; 75 N.R. 51, refd to. [para. 15].

R. v. Lajoie, [1974] S.C.R. 399, refd to. [para. 15].

R. v. Ancio, [1984] 1 S.C.R. 225; 52 N.R. 161, refd to. [para. 15].

R. v. Brown (A.R.R.) (1992), 127 A.R. 89; 20 W.A.C. 89; 73 C.C.C.(3d) 481 (C.A.), refd to. [para. 16].

R. v. Hebert, [1990] 2 S.C.R. 151; 110 N.R. 1, refd to. [para. 16].

R. v. Broyles, [1991] 3 S.C.R. 595; 131 N.R. 118; 120 A.R. 189; 8 W.A.C. 189, refd to. [para. 16].

R. v. Rothman, [1981] 1 S.C.R. 640; 35 N.R. 485, refd to. [para. 16].

R. v. Brown (A.R.R.), [1993] 2 S.C.R. 918; 155 N.R. 225; 141 A.R. 163; 46 W.A.C. 163, refd to. [para. 18].

R. v. Rollocks (R.) (1994), 72 O.A.C. 269; 91 C.C.C.(3d) 193 (C.A.), refd to. [para. 19].

R. v. R.R. - see R. v. Rollocks (R.).

R. v. Chciuk (C.) (1999), 116 O.A.C. 283; 131 C.C.C.(3d) 552 (C.A.), refd to. [para. 19].

R. v. Weir (D.T.) (1999), 250 A.R. 73; 213 W.A.C. 73; 140 C.C.C.(3d) 441; 1999 ABCA 275, refd to. [para. 19].

R. v. Parks (C.) (1993), 65 O.A.C. 122; 84 C.C.C.(3d) 353 (C.A.), refd to. [para. 20].

R. v. Daviault (H.), [1994] 3 S.C.R. 63; 173 N.R. 1; 64 Q.A.C. 81, refd to. [para. 21].

R. v. Sharpe (J.R.) (1999), 127 B.C.A.C. 76; 207 W.A.C. 76; 136 C.C.C.(3d) 97 (C.A.), refd to. [para. 23].

R. v. Stevenson (E.) (2005), 262 Sask.R. 278; 347 W.A.C. 278; 2005 SKCA 44, refd to. [para. 25].

R. v. Johnson (J.J.), [2003] 2 S.C.R. 357; 308 N.R. 333; 186 B.C.A.C. 161; 306 W.A.C. 161, refd to. [para. 25].

R. v. Carter (1985), 7 O.A.C. 344; 19 C.C.C.(3d) 174 (C.A.), refd to. [para. 31].

R. v. Greenough (V.) (2014), 438 Sask.R. 154; 608 W.A.C. 154; 2014 SKCA 57, refd to. [para. 32].

R. v. Oakes, [1986] 1 S.C.R. 103; 65 N.R. 87; 14 O.A.C. 335, refd to. [para. 38].

R. v. Downey and Reynolds, [1992] 2 S.C.R. 10; 136 N.R. 266; 125 A.R. 342; 14 W.A.C. 342, refd to. [para. 38].

R. v. Laforge, 2010 QCCQ 7718, refd to. [para. 43].

R. v. Drolet, 2010 QCCQ 7719, refd to. [para. 43].

R. v. Towle (2011), 268 C.C.C.(3d) 411; 2011 ONCJ 57, refd to. [para. 43].

R. v. Roszell (T.J.), [2011] A.R. Uned. 670; 21 M.V.R.(6th) 38; 2011 ABPC 280, refd to. [para. 43].

R. v. Powichowski (2009), 200 C.R.R.(2d) 284; 2009 ONCJ 490, refd to. [para. 43].

R. v. Gillespie, 2010 BCPC 207, refd to. [para. 43].

R. v. Duff (R.A.) (2010), 501 A.R. 122; 261 C.C.C.(3d) 221; 2010 ABPC 319, refd to. [para. 43].

Counsel:

Barry Nychuk, for the appellant;

Andrew Davis, for the respondent.

This appeal was heard on June 16, 2015, by Herauf, Jackson and Caldwell, JJ.A., of the Saskatchewan Court of Appeal. On November 18, 2015, Herauf, J.A., delivered the following reasons for judgment for the court.

To continue reading

Request your trial
8 practice notes
  • ENVIROGUN LTD. v. R., 2019 SKQB 89
    • Canada
    • Court of Queen's Bench of Saskatchewan (Canada)
    • March 25, 2019
    ...rule on the new issue. The rule also supports the societal interest in the finality of litigation in criminal matters: R v Albus, 2015 SKCA 121 at para 13, [2016] 4 WWR [89] This general prohibition is not absolute, but exceptions to it are limited. In R v Brown, [1993] 2 SCR 918 [Brown], t......
  • R. v. Kusch (H.), 2015 CRM 58
    • Canada
    • Court of Queen's Bench of Saskatchewan (Canada)
    • August 9, 2016
    ...counsel or the trial judge. Nevertheless, that was the primary focus of his submissions on this ground of appeal. [39] In R v Albus , 2015 SKCA 121, 467 Sask R 232, the Court of Appeal considered whether to allow an appellant to argue an issue at appeal which had not been argued at trial. I......
  • R. v. Schnurr (J.), 2015 CRM 17
    • Canada
    • Saskatchewan Court of Queen's Bench of Saskatchewan (Canada)
    • June 14, 2016
    ...the approved instrument was malfunctioning or was operated improperly". . . [60] The test was further recognized at para 9 of R v Albus, 2015 SKCA 121 (CanLII), 467 Sask R 232: 9 ... Following St-Onge Lamoureux, an accused person may simply lead evidence tending to show that the machine was......
  • Digest: Karcha v R, 2018 SKQB 101
    • Canada
    • Saskatchewan Law Society Case Digests
    • March 29, 2018
    ...1985, c C-46, Part XXVII Cases Considered: Archambault v R, 2017 QCCQ 14775 Cyr-Langlois v R, 2017 QCCA 1033, 17 MVR (7th) 75 R v Albus, 2015 SKCA 121, [2016] 4 WWR 162, 467 Sask R 232, 90 MVR (6th) 200 R v Beston, 2006 SKCA 131, 214 CCC (3d) 509, 40 MVR (5th) 235 R v Blanchette, 2017 QCCS ......
  • Request a trial to view additional results
6 cases
  • ENVIROGUN LTD. v. R., 2019 SKQB 89
    • Canada
    • Court of Queen's Bench of Saskatchewan (Canada)
    • March 25, 2019
    ...rule on the new issue. The rule also supports the societal interest in the finality of litigation in criminal matters: R v Albus, 2015 SKCA 121 at para 13, [2016] 4 WWR [89] This general prohibition is not absolute, but exceptions to it are limited. In R v Brown, [1993] 2 SCR 918 [Brown], t......
  • R. v. Kusch (H.), 2015 CRM 58
    • Canada
    • Court of Queen's Bench of Saskatchewan (Canada)
    • August 9, 2016
    ...counsel or the trial judge. Nevertheless, that was the primary focus of his submissions on this ground of appeal. [39] In R v Albus , 2015 SKCA 121, 467 Sask R 232, the Court of Appeal considered whether to allow an appellant to argue an issue at appeal which had not been argued at trial. I......
  • R. v. Schnurr (J.), 2015 CRM 17
    • Canada
    • Saskatchewan Court of Queen's Bench of Saskatchewan (Canada)
    • June 14, 2016
    ...the approved instrument was malfunctioning or was operated improperly". . . [60] The test was further recognized at para 9 of R v Albus, 2015 SKCA 121 (CanLII), 467 Sask R 232: 9 ... Following St-Onge Lamoureux, an accused person may simply lead evidence tending to show that the machine was......
  • R v Omer,
    • Canada
    • Court of Appeal (Saskatchewan)
    • December 21, 2022
    ...the benefit of a trial judge’s findings and analysis: see R v Kishayinew, 2021 SKCA 32 at paras 19–25, and R v Albus, 2015 SKCA 121 at para 13, 90 MVR (6th) 200. [37]           Courts are now well aware of the disprop......
  • Request a trial to view additional results
1 books & journal articles
  • Digest: Karcha v R, 2018 SKQB 101
    • Canada
    • Saskatchewan Law Society Case Digests
    • March 29, 2018
    ...1985, c C-46, Part XXVII Cases Considered: Archambault v R, 2017 QCCQ 14775 Cyr-Langlois v R, 2017 QCCA 1033, 17 MVR (7th) 75 R v Albus, 2015 SKCA 121, [2016] 4 WWR 162, 467 Sask R 232, 90 MVR (6th) 200 R v Beston, 2006 SKCA 131, 214 CCC (3d) 509, 40 MVR (5th) 235 R v Blanchette, 2017 QCCS ......

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT