R. v. Biccum (C.D.)

• Jurisdiction: Alberta
• Court: Court of Appeal (Alberta)
• Judge: Berger, Slatter and McDonald, JJ.A.
• Neutral Citation: 2012 ABCA 80
• Citation: 2012 ABCA 80,(2012), 522 A.R. 310,[2012] 522 AC 310,522 AR 310,286 CCC (3d) 536,AZ-50838512,544 WAC 310,(2012), 522 AR 310,544 W.A.C. 310,522 A.R. 310
• Date: 12 March 2012

R. v. Biccum (C.D.) (2012), 522 A.R. 310; 544 W.A.C. 310 (CA)

MLB headnote and full text

Temp. Cite: [2012] A.R. TBEd. MR.069

Her Majesty The Queen (respondent) v. Charles Donald Biccum (appellant)

(1103-0080-A; 2012 ABCA 80)

Indexed As: R. v. Biccum (C.D.)

Alberta Court of Appeal

Berger, Slatter and McDonald, JJ.A.

March 12, 2012.

Summary:

The accused driver struck and injured two pedestrians. Although the officer subjectively believed that he lacked grounds for a breathalyzer demand, he had the requisite suspicion to make a roadside screening demand. The approved screening device delivered to the scene was labelled "Do Not Use" beyond the expiry date (15 hours earlier). The expiry date related to the R.C.M.P. practice of re-calibrating the devices every 14 days. There was no evidence that it was required by the manufacturer or that results were unreliable if the machine was not recalibrated every 14 days. The officer re-booted the device, which on self-testing did not indicate any error in its operation. Absent an error message, the officer subjectively believed the machine was working properly. The accused registered a "fail" result. The officer relied on the "fail" as reasonable grounds to make the breathalyzer demand. The accused's blood-alcohol level exceeded the legal limit. A voir dire was held to determine the admissibility of the certificate evidence. The trial judge admitted the evidence, finding that the accused failed to prove on a balance of probabilities that the device was not reliable. The accused appealed, arguing that it was not reasonable for the officer to rely on an approved screening device which had "expired" 15 hours earlier.

The Alberta Court of Appeal dismissed the appeal. In the entire factual context, use of the "expired" roadside screening device was objectively reasonable and the officer had reasonable grounds to make the breathalyzer demand. Berger, J.A., concurred in the result, but disagreed that reliance on an "expired" device was objectively reasonable absent evidence from the Crown to explain why such a warning label could be ignored. However, Berger, J.A., would have also dismissed the appeal on the ground that notwithstanding a breach of s. 8 of the Charter the evidence would not have been excluded under s. 24(2).

Criminal Law - Topic 1372

Motor vehicles - Impaired driving - Breathalyzer or blood sample - Demand - Reasonable and probable grounds - The accused driver struck and injured two pedestrians - Notwithstanding his admission of drinking, the officer subjectively believed that he lacked grounds to make a breathalyzer demand, so he made an approved screening device demand - The device was labelled "Do Not Use" beyond the stated expiry date (R.C.M.P. practice of re-calibrating the devices every 14 days) - The date expired 15 hours earlier - There was no evidence that test results were unreliable if the machine was not re-calibrated every 14 days - The officer re-booted the device, which on self-testing did not indicate any error in its operation - Absent an error message, the officer subjectively believed the machine was working properly - The accused registered a "fail" result, which the officer relied on as grounds for a breathalyzer demand - The accused's blood-alcohol level exceeded the legal limit - On a voir dire, the trial judge admitted the evidence, finding that the accused failed to prove on a balance of probabilities that the device was not reliable - The accused appealed, arguing that it was not reasonable for the officer to rely on an approved screening device which had "expired" 15 hours earlier - The Alberta Court of Appeal dismissed the accused's appeal - In the total factual context, it was subjectively and objectively reasonable for the officer to be satisfied as to the continued reliability of the device notwithstanding the date for re-calibration expired 15 hours earlier - The device appeared to be working - The officer had reasonable grounds to make the breathalyzer demand - Berger, J.A., although concurring in the result, disagreed - Reliance on the "expired" device was not objectively reasonable on the evidence - Accordingly, the officer lacked grounds to make a breathalyzer demand (violation of s. 8 Charter rights) - However, the evidence would not have been excluded under s. 24(2), so the appeal would still be dismissed.

Criminal Law - Topic 1386.4

Motor vehicles - Impaired driving - Roadside screening test - Evidence and proof (incl. whether device approved, calibration record, etc.) - A police officer relied on a "fail" result from an approved screening device as grounds for making a breathalyzer demand - The device was labelled "Do Not Use" beyond the stated expiry date for re-calibration, which had expired 15 hours earlier - In determining whether the officer's reliance on the accuracy of the device was objectively reasonable, the Alberta Court of Appeal (per Slatter and McDonald, JJ.A.), stated that "since the total factual context must be considered, what is reasonable can depend on the circumstances faced by the constable. Necessity can make reasonable what might otherwise be unreasonable. ... The fact that [the officer] was investigating a serious accident, and had no other device available to him is relevant in determining if his actions were objectively reasonable." - Berger, J.A., stated that "I respectfully disagree with the suggestion that objective reasonableness is made out on the basis that the investigating officer found himself at a serious accident scene in a remote area of the province and was compelled to use a device which had not ben re-calibrated. In my opinion, necessity does not overcome the absence of objective factors that may arguably support reliance upon a device that may functionally record a result, but may have failed to do so accurately." - See paragraphs 26, 39.

Criminal Law - Topic 1386.4

Motor vehicles - Impaired driving - Roadside screening test - Evidence and proof (incl. whether device approved, calibration records, etc.) - [See Criminal Law - Topic 1372 ].

Cases Noticed:

F.H. v. McDougall, [2008] 3 S.C.R. 41; 380 N.R. 82; 260 B.C.A.C. 74; 439 W.A.C. 74; 2008 SCC 53, refd to. [para. 9].

R. v. R.W., [1992] 2 S.C.R. 122; 137 N.R. 214; 54 O.A.C. 164, refd to. [para. 9].

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. 9].

R. v. Araujo (A.) et al., [2000] 2 S.C.R. 992; 262 N.R. 346; 143 B.C.A.C. 257; 235 W.A.C. 257; 2000 SCC 65, refd to. [para. 9].

R. v. Biniaris (J.), [2000] 1 S.C.R. 381; 252 N.R. 204; 134 B.C.A.C. 161; 219 W.A.C. 161; 2000 SCC 15, refd to. [para. 9].

R. v. Persaud (A.), [2011] O.T.C. Uned. 1233; 12 M.V.R.(6th) 102; 2011 ONSC 1233, refd to. [para. 12].

R. v. Johnston (2007), 44 M.V.R.(5th) 251; 2007 ONCJ 45, refd to. [para. 12].

R. v. Evans (C.D.), [1993] 3 S.C.R. 653; 158 N.R. 278; 145 A.R. 81; 55 W.A.C. 81, refd to. [para. 14].

R. v. Nolet (R.) et al., [2010] 1 S.C.R. 851; 403 N.R. 1; 350 Sask.R. 51; 487 W.A.C. 51; 2010 SCC 24, refd to. [para. 14].

R. v. K.G.B., [1993] 1 S.C.R. 740; 148 N.R. 241; 61 O.A.C. 1, refd to. [para. 14].

R. v. Cornell (J.M.), [2010] 2 S.C.R. 142; 404 N.R. 133; 487 A.R. 1; 495 W.A.C. 1; 2010 SCC 31, refd to. [para. 17].

R. v. Black (W.J.) (2011), 515 A.R. 319; 532 W.A.C. 319; 2011 ABCA 349, refd to. [para. 17].

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. 20].

R. v. Rajaratnam (M.) (2006), 397 A.R. 126; 384 W.A.C. 126; 213 C.C.C.(3d) 547; 2006 ABCA 333, refd to. [para. 21].

R. v. Juan (J.P.) (2007), 243 B.C.A.C. 259; 401 W.A.C. 259; 222 C.C.C.(3d) 289; 2007 BCCA 351, refd to. [para. 21].

R. v. MacKenzie (B.C.) (2011), 371 Sask.R. 291; 518 W.A.C. 291; 2011 SKCA 64, refd to. [para. 21].

R. v. Payette (S.) (2010), 291 B.C.A.C. 289; 492 W.A.C. 289; 259 C.C.C.(3d) 178; 2010 BCCA 392, refd to. [para. 21].

R. v. Grant (D.), [2009] 2 S.C.R. 353; 391 N.R. 1; 253 O.A.C. 124, refd to. [para. 44].

R. v. Loewen (D.J.) (2010), 490 A.R. 72; 497 W.A.C. 72; 2010 ABCA 255, refd to. [para. 46].

Counsel:

K.J. Teskey, for the appellant;

K.A. Joyce, for the respondent.

This appeal was heard on February 1, 2012, before Berger, Slatter and McDonald, JJ.A., of the Alberta Court of Appeal.

On March 12, 2012, the judgment of the Court of Appeal was delivered and the following memorandums of judgment were filed:

Slatter and McDonald, JJ.A. - see paragraphs 1 to 34;

Berger, J.A. - see paragraphs 35 to 51.