R. v. Baril (S.), (1998) 225 A.R. 235 (ProvCt)

• Judge: Fraser, P.C.J.
• Court: Provincial Court of Alberta (Canada)
• Case Date: April 08, 1998
• Citations: (1998), 225 A.R. 235 (ProvCt)

R. v. Baril (S.) (1998), 225 A.R. 235 (ProvCt)

MLB headnote and full text

Temp. Cite: [1998] A.R. TBEd. MY.105

Her Majesty The Queen v. Serge Baril

(No. 71377006P10101,0102)

Indexed As: R. v. Baril (S.)

Alberta Provincial Court

Fraser, P.C.J.

April 8, 1998.

Summary:

The accused was charged with impaired driving and a breathalyzer refusal. The accused argued, inter alia, that his s. 10(b) Charter rights were infringed.

The Alberta Provincial Court convicted the accused of both charges. The court found no infringement of the accused's s. 10(b) rights.

Criminal Law - Topic 1362

Motor vehicles - Impaired driving - Evi­dence and proof - The Alberta Provincial Court convicted the accused of impaired driving and a breathalyzer refusal - With respect to the impaired driving charge, the court stated the evidence that the accused's ability to drive was impaired was insuffi­cient by itself to sustain a conviction for impaired driving - However, the court stated that the deciding factor was the adverse inference which it drew from the accused's failure to provide a breath sample without any reasonable excuse - The court stated that "his failure to blow casts considerable doubt on the truthfulness of his evidence as to how much alcohol he had consumed as well as his explanations for the other indicia of impairment. Taking all of the factors into consideration and giving particular weight to the adverse inference factor, I am satisfied beyond a reasonable doubt that his ability to drive was impaired" - See paragraphs 27 to 38.

Criminal Law - Topic 1377

Motor vehicles - Impaired driving - Breathalyzer - Refusal to provide breath or blood sample - [See Criminal Law - Topic 1362 ].

Criminal Law - Topic 1377

Motor vehicles - Impaired driving - Breathalyzer - Refusal to provide breath or blood sample - An intoxilyzer technician requested that the accused provide breath samples - The accused, who had indicated that he did not speak English and only spoke French, looked at the mouthpiece, then at the officer and then around the room for approximately three minutes until the machine automatically produced a card advising that it had not received a suffi­cient sample to analyze - The Alberta Provincial Court found that the accused fully understood English and that he under­stood the instructions given to him and that his actions in looking around and saying nothing as though he did not understand constituted a refusal to provide breath samples - See paragraphs 21 to 25.

Evidence - Topic 215

Inferences and weight of evidence - Infer­ences - Inference regarding physical im­pairment from alcohol or drugs - [See Criminal Law - Topic 1362 ].

Evidence - Topic 4690

Witnesses - Examination - Testimonial recollection or refreshing witness's mem­ory - Use of notes - General - The accused was charged with impaired driving and a breathalyzer refusal - The accused argued that his s. 10(b) Charter rights were infringed - Credibility was in issue as between the evidence of the accused and the evidence of the Crown - The accused argued that the court should infer that the arresting officer was lying about the events which occurred at the police station because not all of her evidence was in her notes - The Alberta Provincial Court held that it was not aware of any authority that an officer's evidence could not be accepted unless that evidence appeared in notes made at the time of the incident - If the witness had no difficulty recalling the event and had a vivid recollection of the event without the notes, then the lack of notes was inconsequential - See paragraphs 13 to 16.

Cases Noticed:

R. v. Sullivan (1992), 1 B.C.A.C. 312; 1 W.A.C. 312; 65 C.C.C.(3d) 541 (C.A.), refd to. [para. 24].

R. v. D.W., [1991] 1 S.C.R. 742; 122 N.R. 277; 46 O.A.C. 352; 63 C.C.C.(3d) 397; 3 C.R.(4th) 302, refd to. [para. 26].

R. v. MacDonald (W.A.) (1989), 98 A.R. 308 (C.A.), refd to. [para. 32].

R. v. Garneau (1982), 39 A.R. 91 (Q.B.), refd to. [para. 33].

R. v. MacKenzie (1983), 44 A.R. 40; 6 C.C.C.(3d) 86 (Q.B.), refd to. [para. 34].

R. v. Andrews (M.A.) (1996), 178 A.R. 182; 110 W.A.C. 182; 104 C.C.C.(3d) 392 (C.A.), refd to. [para. 36].

R. v. Stellato (T.) (1993), 61 O.A.C. 217; 78 C.C.C.(3d) 380 (C.A.), refd to. [para. 36].

R. v. Campbell (W.S.) (1991), 87 Nfld. & P.E.I.R. 269; 271 A.P.R. 269; 26 M.V.R.(2d) 319 (P.E.I.C.A.), refd to. [para 36].

Counsel:

S. Pepper, for the Crown;

R. Batting, for the accused.

This case was heard before Fraser, P.C.J., of the Alberta Provincial Court, who delivered the following judgment on April 8, 1998.