R. v. Allin (B.D.L.), 2003 SKPC 58

• Judge: Kolenick, P.C.J.
• Court: Provincial Court of Saskatchewan (Canada)
• Case Date: May 05, 2003
• Jurisdiction: Saskatchewan
• Citations: 2003 SKPC 58;(2003), 233 Sask.R. 73 (PC)

R. v. Allin (B.D.L.) (2003), 233 Sask.R. 73 (PC)

MLB headnote and full text

Temp. Cite: [2003] Sask.R. TBEd. MY.005

Her Majesty The Queen v. Barry D.L. Allin

(44961502; 2003 SKPC 58)

Indexed As: R. v. Allin (B.D.L.)

Saskatchewan Provincial Court

Saskatoon

Kolenick, P.C.J.

May 5, 2003.

Summary:

The accused was charged with impaired driving (Criminal Code, s. 253(a)) and with operating a vehicle while having an excessive blood-alcohol content (s. 253(b)). At issue at trial was whether it was proven beyond reasonable doubt that the breath samples were taken as soon as practicable as contemplated by s. 258(1)(c)(ii) of the Criminal Code. Also at issue was whether the evidence was sufficient to prove the offence of impaired operation beyond reasonable doubt within the meaning of s. 253(a).

The Saskatchewan Provincial Court found the accused not guilty of the s. 253(b) charge (i.e., driving while over .08), but convicted the accused of impaired operation of a motor vehicle contrary to s. 253(a).

Criminal Law - Topic 1362

Motor vehicles - Impaired driving - Evidence and proof - At 12:24 a.m. the police stopped the accused after they noticed his vehicle weaving - They observed other indicia of impairment when they talked to the accused and saw open alcohol in the vehicle - The police observed, inter alia, glazed, glassy and bloodshot eyes, a strong odour of alcohol, head bobbing, a dazed and confused appearance, poor manual dexterity, unsteady balance, slurred speech and mental confusion - The accused had been at a party where he had been drinking and had taken a mixed drink "for the road" although he claimed he was going to drink it when he got home - The Saskatchewan Provincial Court held that the evidence was sufficient to prove the offence of impaired operation beyond a reasonable doubt - The accused was convicted.

Criminal Law - Topic 1362

Motor vehicles - Impaired driving - Evidence and proof - The accused was charged with two alcohol related driving offences (i.e., a .08 offence and impaired operation) - The Saskatchewan Provincial Court in acquitting the accused of a .08 offence held that the breath samples were not taken as soon as practicable - Therefore, although the certificate was admissible evidence, the Crown could not rely on the statutory presumption that the bloodalcohol concentrations in the certificate were the same as at the time the vehicle was operated - The court stated that although the certificate was admissible, where the presumption was not applicable, the certificate should not be considered as evidence on the impaired operation charge, in the absence of interpretive evidence - See paragraph 43.

Criminal Law - Topic 1374

Motor vehicles - Impaired driving - Breathalyzer or blood sample - Evidence and certificate evidence (incl. as soon as practicable) - At 12:24 a.m. the police stopped the accused after they noticed his vehicle weaving - They observed other indicia of impairment when they talked to the accused and saw open alcohol in the vehicle - At 12:28 a.m., the police read the accused his counsel rights and at 12:30 made a breath demand - The accused waived his right to contact counsel - They arrived at the police station at 12:58 and ultimately the accused gave breath samples at 1:21 and 1:41 a.m. - The accused was charged with operating a vehicle while having an excessive blood-alcohol content (s. 253(b)) - He argued that the breath samples were not taken as soon as practicable (Criminal Code, s. 258(1)(c)(ii)) - The Saskatchewan Provincial Court agreed and found him not guilty - The Crown did not account for the 23 minute delay from the time of arrival at the police station until the first sample was taken, therefore the Crown was unable to rely on the certificate of analysis to support a conviction - See paragraphs 32 to 41.

Cases Noticed:

R. v. Huot (M.) (No. 3) (2001), 209 Sask.R. 171 (Prov. Ct.), refd to. [para. 32].

R. v. Randell (G.J.) (1994), 118 Sask.R. 48 (Q.B.), refd to. [para. 43].

R. v. Pelletier (1989), 79 Sask.R. 22; 51 C.C.C.(3d) 161 (Q.B.), refd to. [para. 45].

R. v. Stellato (T.), [1994] 2 S.C.R. 478; 168 N.R. 190; 72 O.A.C. 140; 90 C.C.C.(3d) 160; 18 C.R.(4th) 127, refd to. [para. 50].

R. v. Landes (T.) (1997), 161 Sask.R. 305 (Q.B.), refd to. [para. 50].

Counsel:

Warren Holmes, for the Crown;

Ron Piché, for the accused.

This matter was heard before Kolenick, P.C.J., of the Saskatchewan Provincial Court, who delivered the following decision on May 5, 2003.