R. v. Browning (D.J.), (2015) 604 A.R. 190 (PC)

• Judge: Fradsham, P.C.J.
• Court: Provincial Court of Alberta (Canada)
• Case Date: January 16, 2015
• Citations: (2015), 604 A.R. 190 (PC);2015 ABPC 3

R. v. Browning (D.J.) (2015), 604 A.R. 190 (PC)

MLB headnote and full text

Temp. Cite: [2015] A.R. TBEd. JA.134

Her Majesty the Queen v. David James Browning (131522369P1; 2015 ABPC 3)

Indexed As: R. v. Browning (D.J.)

Alberta Provincial Court

Fradsham, P.C.J.

January 16, 2015.

Summary:

The accused was charged with driving while having a blood-alcohol content exceeding the legal limit. He argued that the Crown was precluded from relying on the presumptions set out in s. 258(1) of the Criminal Code because the evidentiary breath samples were not taken as soon as practicable.

The Alberta Provincial Court found the accused not guilty.

Civil Rights - Topic 8588

Canadian Charter of Rights and Freedoms - Practice - Notice to Attorney General - Browning was charged with driving while having a blood-alcohol content exceeding the legal limit - He argued that the Crown could not rely on the presumptions set out in s. 258(1) of the Criminal Code because the breath samples were not taken as soon as practicable - The Crown argued that Browning could not make that argument because he had not filed a Charter notice - The Alberta Provincial Court rejected the Crown's argument - If an accused was seeking the exclusion of evidence, then he had to invoke the Charter - However, Browning was not challenging the admissibility of the Certificate of Qualified Technician - Rather, he was arguing that the Crown could not rely on the presumptions of accuracy and identity after the Certificate was determined to be admissible - There was a fundamental difference between non-compliance with the demand provisions (i.e., grounds for making the demand or the timing of the demand) and non-compliance with the timing of the actual taking of the breath samples - The latter deficiency might well impact on the reliability of the samples and their analyses - See paragraphs 12 to 43.

Criminal Law - Topic 1374

Motor vehicles - Impaired driving - Breathalyzer or blood sample - Evidence and certificate evidence - [See Civil Rights - Topic 8588 ].

Criminal Law - Topic 1374

Motor vehicles - Impaired driving - Breathalyzer or blood sample - Evidence and certificate evidence - A police officer arrested Browning for impaired driving and made a breathalyzer demand at 3:58 a.m. - Browning provided his first acceptable breath sample at 4:25 a.m. - He provided a second breath sample at 4:47 a.m. but the breathalyzer instrument would not accept it for unknown reasons - At 5:07 a.m., Browning provided a third breath sample which the instrument accepted - Browning was charged with driving while having a blood-alcohol content exceeding the legal limit - He argued that the Crown could not rely on the presumptions set out in s. 258(1) of the Criminal Code because the breath samples were not taken as soon as practicable - The Alberta Provincial Court agreed and found Browning not guilty - The 42 minute delay between the first and third samples demanded an explanation - There was no evidence that the instrument's failure to accept Browning's second sample had anything to do with Browning - The only evidence was that "something wasn't going right" - There was no evidence as to what that "something" was or when it was resolved - Even if the court accepted that the instrument had to be "rebooted", the time needed to effect that rebooting was not the proper subject matter of judicial notice - See paragraphs 44 to 51.

Evidence - Topic 2206

Special modes of proof - Judicial notice - General principles - Criminal cases - [See second Criminal Law - Topic 1374 ].

Cases Noticed:

R. v. Morrison (K.A.) (2012), 555 A.R. 88; 2012 ABQB 544, leave to appeal denied [2012] A.R. Uned. 565; 2012 ABCA 349, consd. [paras. 13, 18].

R. v. Willette (H.T.), [2011] O.T.C. Uned. 1055; 2011 ONSC 1055, refd to. [para. 15].

R. v. Charette (K.) et al. (2009), 247 O.A.C. 369; 243 C.C.C.(3d) 480; 2009 ONCA 310, refd to. [para. 27].

R. v. Forsythe (J.R.) (2009), 251 Man.R.(2d) 90; 478 W.A.C. 90; 250 C.C.C.(3d) 90; 2009 MBCA 123, refd to. [para. 27].

R. v. Rilling (1976), 5 N.R. 327; 24 C.C.C.(2d) 81, refd to. [para. 29].

R. v. Manji (S.), [2013] A.R. Uned. 619; 54 M.V.R.(6th) 256; 2013 ABPC 264, refd to. [para. 33].

R. v. Lokietko (L.), [2014] A.R. Uned. 665; 2014 ABPC 218, disagreed with [para. 42, footnote 1].

R. v. C.A.J. (2004), 370 A.R. 76; 2004 ABQB 838, refd to. [para. 45].

R. v. Vanderbruggen (M.) (2006), 208 O.A.C. 379 (C.A.), refd to. [para. 46].

R. v. Spence (S.A.) (2005), 342 N.R. 126; 206 O.A.C. 150; 202 C.C.C.(3d) 1; 2005 SCC 71, refd to. [para. 50].

Counsel:

V. Pingitore, for the Crown;

R. Muenz, for the accused.

This matter was heard before Fradsham, P.C.J., of the Alberta Provincial Court, who delivered the following reasons for judgment at Calgary, Alberta, on January 16, 2015.