R. v. Armbruster (D.R.), 2010 SKCA 25

• Judge: Cameron, Richards and Ottenbreit, JJ.A.
• Court: Court of Appeal (Saskatchewan)
• Case Date: January 22, 2010
• Jurisdiction: Saskatchewan
• Citations: 2010 SKCA 25;(2010), 346 Sask.R. 197 (CA)

R. v. Armbruster (D.R.) (2010), 346 Sask.R. 197 (CA);

    477 W.A.C. 197

MLB headnote and full text

Temp. Cite: [2010] Sask.R. TBEd. MR.013

Her Majesty the Queen (respondent) v. Dean R. Armbruster (appellant)

(No. 1734; 2010 SKCA 25)

Indexed As: R. v. Armbruster (D.R.)

Saskatchewan Court of Appeal

Cameron, Richards and Ottenbreit, JJ.A.

February 25, 2010.

Summary:

The accused was charged with leaving the scene of an accident, impaired operation of a motor vehicle and refusing to comply with a demand for a breath sample.

The Saskatchewan Provincial Court acquitted the accused. The Crown appealed.

The Saskatchewan Court of Queen's Bench, in a decision reported at 334 Sask.R. 120, allowed the appeal and ordered a new trial. The accused appealed.

The Saskatchewan Court of Appeal dismissed the appeal.

Criminal Law - Topic 1374

Motor vehicles - Impaired driving - Breathalyzer or blood sample - Evidence and certificate evidence - Qualified technician - A Provincial court judge acquitted the accused of, inter alia, impaired operation of a motor vehicle and refusing to comply with a demand for a breath sample - He found that the Crown had not proved beyond a reasonable doubt that the officer (Solomon) who administered the Intoxilyzer 5000 was a qualified technician within the meaning of s. 254(1) of the Criminal Code - The summary conviction appeal court judge allowed the Crown's appeal - The trial judge failed to properly consider the common law principle of maxim omnia praesumuntur rite esse acta which meant that there was a presumption that a person, in fact acting in a public capacity, was properly appointed and was duly authorized to so act until the contrary appeared - Solomon's evidence that he was a certified breath technician with extensive experience was tantamount to a technician stating that he or she was a qualified technician - Solomon was acting in an official capacity when he was attempting to obtain a breath sample from the accused - There was an evidentiary basis for the trial judge to apply the rebuttable presumption that he was designated by the Attorney General - There was no challenge to his testimony - The trial judge ought to have found that Solomon's evidence amounted to prima facie proof that he was a qualified technician and that the burden then shifted to the accused to challenge that evidence - The Saskatchewan Court of Appeal dismissed the accused's appeal - The trial judge's approach was too narrow - The trial judge erred in not considering whether Solomon's testimony gave rise to a rebuttable presumption that he was a qualified technician - See paragraphs 32 to 51.

Criminal Law - Topic 4361

Procedure - Charge or directions - Jury or judge alone - Directions regarding identification - A Provincial court judge acquitted the accused of, inter alia, leaving the scene of an accident and impaired operation of a motor vehicle - The Crown appealed, arguing that the trial judge erred in his consideration of the evidence as to identification - Instead of considering and weighing the identification evidence as a whole, the trial judge considered and discussed each piece of evidence standing alone, in isolation from the other evidence, and having regard to the criminal standard of proof - The summary conviction appeal court judge agreed - The law was well established that the standard of proof as to the accused's identity as the person driving the car should only have been applied to a final evaluation of whether the Crown proved that the accused was the driver - It should not have been applied piecemeal to individual items or categories of evidence - The Saskatchewan Court of Appeal dismissed the accused's appeal - The "beyond a reasonable doubt" standard of proof was not applied to individual pieces of testimony - Rather, it was brought to bear on the evidence as a whole for the purpose of determining whether each of the necessary elements of an offence had been established - The court was not convinced that the appeal judge misread or misunderstood the approach taken by the trial judge - See paragraphs 23 to 31.

Criminal Law - Topic 5253

Evidence and witnesses - Identification - Proof of - [See Criminal Law - Topic 4361 ].

Equity - Topic 68

General - Maxims - Omnia praesumuntur rite et solemniter esse acta - [See Criminal Law - Topic 1374 ].

Evidence - Topic 2515

Special modes of proof - Presumptions - Regularity - Public officials - Capacity and appointment of - [See Criminal Law - Topic 1374 ].

Cases Noticed:

R. v. Minter (D.S.) (2004), 373 A.R. 396; 2004 ABQB 748, refd to. [para. 18].

R. v. Adams (1986), 51 Sask.R. 161; 30 C.C.C.(3d) 469 (C.A.), refd to. [para. 20].

R. v. Tortone, [1993] 2 S.C.R. 973; 156 N.R. 241; 65 O.A.C. 81, refd to. [para. 24].

R. v. Morin, [1988] 2 S.C.R. 345; 88 N.R. 161; 30 O.A.C. 81, refd to. [para. 26].

R. v. Ménard (S.), [1998] 2 S.C.R. 109; 228 N.R. 100; 111 O.A.C. 1, refd to. [para. 26].

R. v. Hill, [1999] N.S.J. No. 276 (Prov. Ct.), refd to. [para. 38].

R. v. Roberts (1878), 38 L.T.R. 690, refd to. [para. 45].

R. v. Demars (G.H.), [2004] O.A.C. Uned. 474; 10 M.V.R.(5th) 3 (C.A.), refd to. [para. 46].

R. v. Marcoux (1990), 26 M.V.R.(2d) 262 (Ont. C.A.), refd to. [para. 47].

R. v. LeBlanc (1972), 4 N.S.R.(2d) 29; 7 C.C.C.(2d) 525 (C.A.), refd to. [para. 47].

R. v. Belzbert (1961), 131 C.C.C. 281 (S.C.C.), refd to. [para. 47].

R. v. Goodman (1951), 99 C.C.C. 366 (B.C.C.A.), refd to. [para. 47].

Authors and Works Noticed:

Phipson on Evidence (15th Ed. 2000), p. 75 [para. 45].

Counsel:

Aaron Fox, Q.C., for the appellant;

Anthony B. Gerein, for the Crown.

This appeal was heard on January 22, 2010, by Cameron, Richards and Ottenbreit, JJ.A., of the Saskatchewan Court of Appeal. The following written reasons for judgment of the court were delivered by Richards, J.A., on February 25, 2010.