R. v. Bhardwaj (G.), (2008) 456 A.R. 313 (QB)

• Judge: Lee, J.
• Court: Court of Queen's Bench of Alberta (Canada)
• Case Date: August 07, 2008
• Citations: (2008), 456 A.R. 313 (QB);2008 ABQB 504

R. v. Bhardwaj (G.) (2008), 456 A.R. 313 (QB)

MLB headnote and full text

Temp. Cite: [2008] A.R. TBEd. AU.124

Her Majesty the Queen (respondent/Crown) v. Gurinder Bhardwaj (appellant/accused)

(051192268S1; 2008 ABQB 504)

Indexed As: R. v. Bhardwaj (G.)

Alberta Court of Queen's Bench

Judicial District of Edmonton

Lee, J.

August 14, 2008.

Summary:

The accused was found guilty of driving while having an excessive blood-alcohol level. The accused appealed, arguing that the trial judge erred in law by placing weight on evidence elicited by the Crown from its own witness through a leading question to establish an essential element of the offence and that the verdict was unreasonable or unsupported by the evidence.

The Alberta 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) - [See first Evidence - Topic 4611 ].

Evidence - Topic 4611

Witnesses - Examination - General principles - Leading questions - The accused was charged with driving while having an excessive blood-alcohol level - The Crown adduced the viva voce testimony of the Intoxilyzer technician (Cst. Niehaus), rather than submitting a Certificate of Analysis into evidence - In response to the Crown's question "What was the result of the analysis of the first sample", Cst. Niehaus stated "One forty" - The Crown then asked "One forty what?" and Cst. Niehaus stated "Milligrams percent - blood-alcohol" - The Crown then asked "Are you referring to milligrams of alcohol per 100 millilitres of blood?" and Niehaus stated "That's correct" - With respect to the second breath sample, Niehaus stated "the result was 128 milligrams percent of blood-alcohol" - The accused was found guilty of the charge - The accused appealed, arguing that the trial judge erred in law by placing weight on evidence elicited by the Crown from its own witness through a leading question to establish an essential element of the offence - The Alberta Court of Queen's Bench dismissed the appeal - Not only was the leading question proper, but there was no evidence before the court that made it unreasonable for the trial judge to attach weight to the answer - The meaning of the term "milligrams percent" was non-contentious - There was no evidence called to contradict the answer, nor was the witness challenged on this point - The court also rejected the accused's suggestion that the verdict was unreasonable because the Crown only defined the term "milligrams percent" the first time it was used by  Cst. Niehaus - It was a unit of measurement which was defined for the court - There was no evidence to suggest that the officer was using the term differently when discussing the result from the first sample than when discussing the result from the second sample.

Evidence - Topic 4611

Witnesses - Examination - General principles - Leading questions - The Alberta Court of Queen's Bench stated that "leading questions are permissible on non-contentious issues. In fact, leading questions should be asked for non-contentious evidence so as not to waste the court's time or confuse the witness. Further, the answers to leading questions are admissible, although the trier-of-fact may give less weight to a witness's answer elicited by a leading question. The weight assigned will depend on how leading the question was, the subject matter and other evidence before the court. There is no rule of law that the answer to a leading question must be given no weight, or that they cannot be asked. The examiner in asking a leading question runs the risk that the answer will be given less weight than if elicited in a non-leading manner" - See paragraphs 44 to 45.

Cases Noticed:

R. v. Caouette, [1973] S.C.R. 859; 9 C.C.C.(2d) 449; 32 D.L.R.(3d) 185, refd to. [para. 12].

R. v. MacDonald, [1977] 2 S.C.R. 665; 9 N.R. 271, refd to. [para. 12].

R. v. Harper, [1982] 1 S.C.R. 2; 40 N.R. 255, refd to. [para. 12].

R. v. Schuldt, [1985] 2 S.C.R. 592; 63 N.R. 241; 38 Man.R.(2d) 257; 23 C.C.C.(3d) 225; 49 C.R.(3d) 136; [1986] 1 W.W.R. 673; 24 D.L.R.(4th) 453, refd to. [para. 12].

R. v. Greyeyes (E.R.), [1997] 2 S.C.R. 825; 214 N.R. 43; 152 Sask.R. 294; 140 W.A.C. 294, refd to. [para.12].

R. v. Morin (K.M.), [1992] 3 S.C.R. 286; 142 N.R. 141; 131 A.R. 81; 25 W.A.C. 81, refd to. [para. 12].

Housen v. Nikolaisen et al., [2002] 2 S.C.R. 235; 286 N.R. 1; 219 Sask.R. 1; 272 W.A.C. 1, refd to. [para. 14].

R. v. C.E.N. (1998), 232 A.R. 277; 195 W.A.C. 277; 1998 ABCA 290, refd to. [para. 22].

R. v. Rose (E.) (2001), 143 O.A.C. 163; 53 O.R.(3d) 417 (C.A.), refd to. [para. 23].

R. v. Paquette (L.L.) (2008), 425 A.R. 4; 418 W.A.C. 4; 2008 ABCA 49, refd to. [para. 24].

R. v. Mehta, 2007 ONCJ 305, consd. [para. 25].

R. v. Zinck (C.W.) (2003), 214 N.S.R.(2d) 328; 671 A.P.R. 328; 2003 NSPC 6, refd to. [para. 26].

R. v. Duffy (1972), 5 N.S.R.(2d) 78 (C.A.), consd. [para. 35].

R. v. Adams (1986), 51 Sask.R. 161; 30 C.C.C.(3d) 469 (C.A.), consd. [para. 36].

R. v. Nyman (E.J.) (1998), 113 O.A.C. 356; 131 C.C.C.(3d) 124 (C.A.), consd. [para. 37].

R. v. Fox (K.C.), [2006] A.R. Uned. 256; 2006 ABQB 173, consd. [para. 38].

Maves v. Grand Trunk Pacific Railway (1913), 6 Alta. L.R. 396 (S.C.), refd to. [para. 46].

R. v. Lyttle (M.G.), [2004] 1 S.C.R. 193; 316 N.R. 52; 184 O.A.C. 1; 2004 SCC 5, refd to. [para. 49].

R. v. Mantee (T.B.) (2005), 275 Sask.R. 114; 365 W.A.C. 114; 2005 SKCA 147, refd to. [para. 52].

R. v. Larson (J.D.) (1999), 250 A.R. 147; 213 W.A.C. 147 (C.A.), refd to. [para. 53].

R. v. Deprez (G.J.) (1994), 97 Man.R.(2d) 272; 79 W.A.C. 272; 9 M.V.R.(3d) 101 (C.A.), refd to. [para. 54].

R. v. Dubois, [1980] 2 S.C.R. 21; 32 N.R. 176; 23 A.R. 116; 52 C.C.C.(2d) 64, refd to. [para. 62].

R. v. Paul, [1977] 1 S.C.R. 181; 4 N.R. 435; 1975 CarswellQue 116, refd to. [para. 63].

Counsel:

M. Ali Moughel (Tarrabain & Company), for the appellant/accused;

Jason Russell (Alberta Justice Agent for the Attorney General), for the respondent/Crown.

This appeal was heard on August 7, 2008, before Lee, J., of the Alberta Court of Queen's Bench, Judicial District of Edmonton, who delivered the following reasons for judgment on August 14, 2008.