R. v. Beaton (J.), 2015 SKQB 58

Judge:Layh, J.
Court:Court of Queen's Bench for Saskatchewan
Case Date:February 20, 2015
Jurisdiction:Saskatchewan
Citations:2015 SKQB 58;(2015), 469 Sask.R. 246 (QB)
 
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R. v. Beaton (J.) (2015), 469 Sask.R. 246 (QB)

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Temp. Cite: [2015] Sask.R. TBEd. MR.033

Jim Beaton also known as Jimmi D. Beaton v. Her Majesty the Queen

(2014 QBG No. 323; 2015 SKQB 58)

Indexed As: R. v. Beaton (J.)

Saskatchewan Court of Queen's Bench

Judicial Centre of Regina

Layh, J.

February 20, 2015.

Summary:

The accused was found guilty of impaired driving and driving while having a blood-alcohol content exceeding the legal limit. He appealed, arguing that (1) the approved screening device (ASD) was not proven to be calibrated so that the "fail" result provided by the ASD could not justify his detention or the taking of breath samples, contrary to ss. 8 and 9 of the Charter; (2) the Certificate of Qualified Technician contained inaccuracies that the trial judge should not have permitted to be corrected by viva voce evidence provided at trial; and (3) the breathalyzer samples were not taken as soon as practicable.

The Saskatchewan Court of Queen's Bench dismissed the appeal.

Criminal Law - Topic 1374

Motor vehicles - Impaired driving - Breathalyzer or blood sample - Evidence and certificate evidence (incl. evidence tending to show) - Beaton was convicted of impaired driving offences - On the Certificate of Qualified Technician, the time of "2203" was mistakenly inputted instead of "2303" - On appeal, Beaton argued that the trial judge erred by allowing this mistake to be corrected by viva voce evidence - The Saskatchewan Court of Queen's Bench dismissed the appeal - The trial judge had ample and clear legal authority to arrive at her decision that irregularities in the Certificate could be rectified - The viva voce evidence gave her a sound factual basis to conclude that the entry of "2203" instead of "2303" was satisfactorily explained - In addition, the officer's oral evidence was sufficient to prove the criteria under s. 258(1)(c) of the Criminal Code without relying on the Certificate to provide the requisite evidence of the correct timing of the two samples - See paragraphs 32 to 35.

Criminal Law - Topic 1375

Motor vehicles - Impaired driving - Breathalyzer or blood sample - Demand for - A police officer arrested Beaton and made a breathalyzer demand at 9:40 p.m. - They left the scene at 9:55 p.m., arrived at the police station at 10:06 p.m., and Beaton provided his first breath sample at 10:42 p.m. - Beaton was convicted of impaired driving offences - He appealed, arguing that the breathalyzer samples were not taken as soon as practicable - The Saskatchewan Court of Queen's Bench dismissed the appeal - The 15 minute delay between making the breathalyzer demand and leaving the scene was adequately and satisfactorily explained - The arresting officer awaited assistance from another officer who was in the vicinity - The second officer searched Beaton's vehicle to see if it contained anything that might impact the investigation - As well, arrangements were made to look after Beaton's vehicle and his passenger who was also under the influence of alcohol - The delay was not objectively unreasonable - See paragraphs 36 to 40.

Criminal Law - Topic 1386.4

Motor vehicles - Impaired driving - Roadside screening test - Evidence and proof (incl. whether device approved, calibration records, etc.) - Beaton appealed his convictions for impaired driving offences - He argued that because the arresting officer could not describe whether the approved screening device (ASD) was used before its "expiration date of calibration", and because the officer made no record of the calibration of the ASD, the "fail" result provided by the ASD could not justify his detention or the taking of breath samples - The Saskatchewan Court of Queen's Bench dismissed the appeal - The officer had no reason to believe that the ASD was not a properly functioning ASD - In the absence of evidence to the contrary, he had sufficient grounds to administer the ASD and rely on it to provide the reasonable and probable grounds to make a breathalyzer demand - See paragraphs 16 to 27.

Cases Noticed:

R. v. Poncelet (G.D.) (2014), 433 Sask.R. 237; 602 W.A.C. 237; 2014 SKCA 30, refd to. [para. 11].

Housen v. Nikolaisen et al., [2002] 2 S.C.R. 235; 286 N.R. 1; 219 Sask.R. 1; 272 W.A.C. 1; 2002 SCC 33, refd to. [para. 11].

R. v. Burns (R.H.), [1994] 1 S.C.R. 656; 165 N.R. 374; 42 B.C.A.C. 161; 67 W.A.C. 161, refd to. [para. 11].

R. v. Shepherd (C.), [2009] 2 S.C.R. 527; 391 N.R. 132; 331 Sask.R. 306; 460 W.A.C. 306; 2009 SCC 35, refd to. [para. 13].

R. v. Bykowski (1980), 23 A.R. 426; 54 C.C.C.(2d) 398; 1980 ABCA 220, refd to. [para. 14].

R. v. Sword (J.C.) (2015), 466 Sask.R. 108; 2015 SKQB 9, refd to. [para. 14].

R. v. Smith (D.V.) (2009), 343 Sask.R. 199; 472 W.A.C. 199; 2009 SKCA 139, refd to. [para. 21].

R. v. Steeves (M.) (2011), 521 A.R. 232; 2011 ABQB 661, refd to. [para. 21].

R. v. Bernshaw (N.), [1995] 1 S.C.R. 254; 176 N.R. 81; 53 B.C.A.C. 1; 87 W.A.C. 1, refd to. [para. 21].

R. v. Black (W.J.) (2011), 515 A.R. 319; 532 W.A.C. 319; 2011 ABCA 349, refd to. [para. 21].

R. v. Gundy (T.) (2008), 235 O.A.C. 236; 231 C.C.C.(3d) 26; 2008 ONCA 284, refd to. [para. 21].

R. v. Helm (B.E.) (2011), 368 Sask.R. 115; 2011 SKQB 32, refd to. [para. 21].

R. v. MacLeod (E.J.) (2009), 272 B.C.A.C. 215; 459 W.A.C. 215; 2009 YKCA 5, refd to. [para. 21].

R. v. Smith (D.V.) (2009), 336 Sask.R. 38; 2009 SKQB 277, refd to. [para. 23].

R. v. Persaud (A.), [2011] O.T.C. Uned. 1233; 232 C.R.R.(2d) 262; 2011 ONSC 1233, dist. [para. 26].

R. v. Pruski, 2006 ONCJ 506, dist. [para. 26].

R. v. Kimery (C.) (2014), 461 Sask.R. 280; 2014 SKQB 384, refd to. [para. 30].

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. 30].

R. v. Michel (J.) (2011), 383 Sask.R. 140; 2011 SKQB 356, refd to. [para. 33].

R. v. Vanderbruggen (M.) (2006), 208 O.A.C. 379; 206 C.C.C.(3d) 489 (C.A.), refd to. [para. 37].

R. v. Carter (1981), 9 Sask.R. 1; 59 C.C.C.(2d) 450 (C.A.), refd to. [para. 37].

R. v. Prior (C.W.), [2011] Sask.R. Uned. 187; 2011 SKPC 193, refd to. [para. 40].

R. v. Carriere (L.) (2010), 363 Sask.R. 76; 2010 SKPC 118, refd to. [para. 40].

R. v. Dion (J.D.), [2010] Sask.R. Uned. 66; 2010 SKPC 76, refd to. [para. 40].

Counsel:

Mervin W. Nidesh Q.C., for the accused;

Drew Gillespie, for the Crown.

This appeal was heard before Layh, J., of the Saskatchewan Court of Queen's Bench, Judicial Centre of Regina, who delivered the following judgment on February 20, 2015.

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