R. v. Buffalo (M.D.),

• Judge: Binder, J.
• Neutral Citation: 2010 ABQB 325
• Citation: 2010 ABQB 325,(2010), 480 A.R. 284 (QB),1974 CanLII 229 (AB QB),[2010] 11 WWR 475,28 Alta LR (5th) 136,480 AR 284,98 MVR (5th) 229,(2010), 480 AR 284 (QB),480 A.R. 284
• Date: 23 April 2010
• Court: Court of Queen's Bench of Alberta (Canada)

R. v. Buffalo (M.D.) (2010), 480 A.R. 284 (QB)

MLB headnote and full text

Temp. Cite: [2010] A.R. TBEd. MY.089

Her Majesty the Queen (Crown) v. Mark Dillon Buffalo (appellant)

(081314205S1; 2010 ABQB 325)

Indexed As: R. v. Buffalo (M.D.)

Alberta Court of Queen's Bench

Judicial District of Wetaskiwin

Binder, J.

May 11, 2010.

Summary:

The accused was charged with driving while having an excessive blood-alcohol level (Criminal Code, s. 253(1)(b)) and impaired driving (s. 253(1)(a)). The accused objected to the admissibility of the certificate of analyses and raised three issues: (a) what standard of proof applied to the requirement in s. 258(7) of the Code that, sometime before trial, the prosecution "give" to the accused a copy of the certificate (b) in addition to evidence that a copy of the certificate was given to the accused, did those effecting service also have to "... indicate that the document is for him to take with him when he leaves" and (c) had the applicable standard been met on the facts of this case.

The Alberta Provincial Court, in a decision reported at (2009), 480 A.R. 268, determined the issues and held that the certificate was admissible. The accused applied to exclude the certificate from evidence on the basis that breath samples were taken (and thereafter analyzed) in violation of the s. 8 of the Charter where (a) the demand that the accused provide a sample of breath suitable for analysis on an approved screening device (ASD) was unlawful because he lacked "reasonable grounds to suspect" that the accused had alcohol in his body and (b) the demand that the accused provide samples of breath suitable for analysis on an approved instrument was unlawful because he lacked "reasonable grounds to believe" that the accused had committed an offence under s. 253 as a result of the consumption of alcohol. The accused further argued that (a) the certificate ought to be accorded no weight as breath samples were not taken from him as soon as was practicable.; and (b) the accused ought to be acquitted of the offence described in s. 253(1)(a) on the basis that his guilt has not been proven beyond a reasonable doubt.

The Alberta Provincial Court, in a decision reported at [2009] A.R. Uned. 742, found that there was no Charter breach where the officer had a reasonable suspicion sufficient to support an ASD demand, that he had reasonable and probable grounds to request a breath sample, and that the breath samples were taken as soon as practicable. The impaired driving charge was dismissed. The court received written argument with respect to a remedy under s. 24(2) of the Charter.

The Alberta Provincial Court, in a decision reported at [2009] A.R. Uned. 743, found that even if there had been a Charter breach, it would not have excluded the certificate. The accused was convicted of driving while having an excessive blood-alcohol level. The accused appealed.

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

Civil Rights - Topic 1217

Security of the person - Lawful or reasonable search - What constitutes unreasonable search and seizure - [See Criminal Law - Topic 1386.1 ].

Civil Rights - Topic 8368

Canadian Charter of Rights and Freedoms - Denial of rights - Remedies - Exclusion of evidence - The accused was charged with driving while having an excessive blood-alcohol level (Criminal Code, s. 253(1)(b)) and impaired driving (s. 253(1)(a)) - The accused applied to exclude the certificate of analyses from evidence on the basis that breath samples were taken (and thereafter analyzed) in violation of the s. 8 of the Charter where, inter alia, the demand that the accused provide a sample of breath suitable for analysis on an approved screening device (ASD) was unlawful because he lacked "reasonable grounds to suspect" that the accused had alcohol in his body and (b) the demand that the accused provide samples of breath suitable for analysis on an approved instrument was unlawful because he lacked "reasonable grounds to believe" that the accused had committed an offence under s. 253 as a result of the consumption of alcohol - The trial judge found that there was no breach of s. 8 - If he was mistaken, and there was a breach, the trial judge would not have excluded the certificate - The accused appealed - The Alberta Court of Queen's Bench dismissed the appeal - The trial judge referred to the test set out in R. v. Grant (2009 SCC) - On the first factor, he concluded that the stopping of the vehicle in the circumstances would not constitute a serious breach, and the accused's s. 10(b) rights were respected - He found that the driving pattern, glassy eyes, slow walk, stumbling and smell of liquor on the accused's breath would have provided objectively reasonable grounds under s. 254(3)(a)(i) without the ASD test results - The learned trial judge concluded that the s. 8 breach was not serious - With respect to the second criterion, he noted that the method of collection of breath sample evidence was relatively non-intrusive and did little or nothing to demean the dignity of the person - On the last factor, he found that the evidence was highly reliable and vital to the prosecution - The trial judge did not err - See paragraphs 48 and 49.

Criminal Law - Topic 1374

Offences against person and reputation - Motor vehicles - Impaired driving - Breathalyzer or blood sample - Evidence and certificate evidence (incl. evidence tending to show) - The accused was charged with driving while having an excessive blood-alcohol level (Criminal Code, s. 253(1)(b)) and impaired driving (s. 253(1)(a)) - At trial, the Crown tendered a certificate of analyses to prove that the accused's blood-alcohol level at the time he operated his motor vehicle was in excess of the limit prescribed by s. 253(1)(b) - The accused objected to the admissibility of the certificate on the ground that the Crown had not fulfilled the requirement in s. 258(7) of the Code that, sometime before trial, the prosecution "give" to the accused a copy of the certificate - At issue was, inter alia, what standard of proof applied to the requirement in s. 258(7) - The trial judge held that preconditions to the admissibility of the certificate including those in s. 258(7) need be proven only on a balance of probabilities - The Alberta Court of Queen's Bench affirmed the trial judge's decision on this issue - See paragraphs 28 to 32.

Criminal Law - Topic 1374

Offences against person and reputation - Motor vehicles - Impaired driving - Breathalyzer or blood sample - Evidence and certificate evidence (incl. evidence tending to show) - The accused was charged with driving while having an excessive blood-alcohol level (Criminal Code, s. 253(1)(b)) and impaired driving (s. 253(1)(a)) - At trial, the Crown tendered a certificate of analyses to prove that the accused's blood-alcohol level at the time he operated his motor vehicle was in excess of the limit prescribed by s. 253(1)(b) - The accused objected to the admissibility of the certificate on the ground that the Crown had not fulfilled the requirement in s. 258(7) of the Code that, sometime before trial, the prosecution "give" to the accused a copy of the certificate - At issue was, inter alia, what standard of proof applied to the requirement in s. 258(7) - The trial judge held that the presumption created by s. 258(1)(c) of the Code was not a "vital issue" requiring application of the criminal standard before it could be drawn - The accused appealed - The Alberta Court of Queen's Bench held that the trial judge erred with respect to this issue - "[T]he standard of proof beyond a reasonable doubt applies to the question of whether the statutory presumption(s) in s. 258 should be invoked, because proof of the pre-conditions contained in s. 258(1)(c) provides conclusive proof of concentration of alcohol in the accused's blood, subject to evidence tending to show three things. In my opinion, conditions that provide conclusive proof of concentration of alcohol in the accused's blood constitute a 'vital issue'." - See paragraph 34.

Criminal Law - Topic 1374

Offences against person and reputation - Motor vehicles - Impaired driving - Breathalyzer or blood sample - Evidence and certificate evidence (incl. evidence tending to show) - The accused was charged with driving while having an excessive blood-alcohol level (Criminal Code, s. 253(1)(b)) and impaired driving (s. 253(1)(a)) - At trial, the Crown tendered a certificate of analyses to prove that the accused's blood-alcohol level at the time he operated his motor vehicle was in excess of the limit prescribed by s. 253(1)(b) - The accused objected to the admissibility of the certificate on the ground that the Crown had not fulfilled the requirement in s. 258(7) of the Code that, sometime before trial, the prosecution "give" to the accused a copy of the certificate - The constable testified that he remembered giving a copy of the certificate to the accused and asked if the accused acknowledged that the copy was a true copy - After receiving a positive acknowledgment, he handed the copy to the accused - The constable specifically remembered that the accused "received a copy" - Following service of a copy of the certificate, the constable completed the Affidavit of Service on the back of the certificate - The constable testified that this was his standard practice - At issue was, inter alia, whether in addition to evidence that a copy of the certificate was given to the accused, those effecting service also had to "... indicate that the document is for him to take with him when he leaves" - The trial judge found that as a matter of law, no particular method of discharging the s. 258(7) requirements had to be followed nor any particular words used, and that evidence of standard practice was sufficient to establish proper service - The accused appealed - The Alberta Court of Queen's Bench dismissed the appeal - The trial judge was correct in holding that no particular form of evidence was required - Further, the trial judge was correct in analyzing the particular evidence before him to determine whether service had been effected in accordance with s. 258(7) - See paragraphs 21 to 27.

Criminal Law - Topic 1374

Offences against person and reputation - Motor vehicles - Impaired driving - Breathalyzer or blood sample - Evidence and certificate evidence (incl. evidence tending to show) - The accused was charged with driving while having an excessive blood-alcohol level (Criminal Code, s. 253(1)(b)) and impaired driving (s. 253(1)(a)) - The accused asserted that the certificate of analyses ought to be accorded no weight as breath samples were not taken from him as soon as was practicable - There was a 19 minute delay at roadside - There was no evidence as to whether the officer had arranged for a qualified breath technician, nor the reason for the 14 minute delay once they arrived at the detachment - Further, the 23 minute delay between samples was unexplained - The trial judge found that none of the delays were unreasonable nor did they result in a breach of the statutory prescriptions - Further, the trial judge considered the total time (one hour and 21 minutes) in all of the circumstances and remarked that this was not only well within the two hour time frame specified by s. 258(1)(c), but it was expeditious considering the nature and locale of the vehicle stop - The accused appealed - The Alberta Court of Queen's Bench dismissed the appeal - The trial judge did not err - See paragraphs 41 to 47.

Criminal Law - Topic 1375

Offences against person and reputation - Motor vehicles - Impaired driving - Breathalyzer or blood sample - Demand for - [See fourth Criminal Law - Topic 1374 ].

Criminal Law - Topic 1376

Offences against person and reputation - Motor vehicles - Impaired driving - Breathalyzer or blood sample - Proof of blood-alcohol content - [See all Criminal Law - Topic 1374 ].

Criminal Law - Topic 1382.1

Offences against person and reputation - Motor vehicles - Impaired driving - Breathalyzer - Service of certificate and copy (incl. computer generated copy) - [See first, second and third Criminal Law - Topic 1374 ].

Criminal Law - Topic 1386.1

Offences against person and reputation - Motor vehicles - Impaired driving - Roadside screening test - Demand - The accused was charged with driving while having an excessive blood-alcohol level (Criminal Code, s. 253(1)(b)) and impaired driving (s. 253(1)(a)) - The accused applied to exclude the certificate of analyses from evidence on the basis that breath samples were taken (and thereafter analysed) in violation of the s. 8 of the Charter where, inter alia, the demand that the accused provide a sample of breath suitable for analysis on an approved screening device was unlawful because he lacked "reasonable grounds to suspect" that the accused had alcohol in his body - The trial judge concluded that the officer's observations of the accused led to the inference that his driving pattern, glassy eyes and slow, stumbling walk were connected to the overwhelming odour of alcohol in the vehicle and a suspicion that he had alcohol in his body could be safely made - The demand was lawful - The accused appealed - The Alberta Court of Queen's Bench dismissed the appeal - The trial judge did not err in finding subjective and objective grounds for suspicion on the evidence - There was no breach of s. 8 - See paragraphs 35 to 40.

Cases Noticed:

R. v. Grant (D.), [2009] 2 S.C.R. 353; 391 N.R. 1; 253 O.A.C. 124; 2009 SCC 32, 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, refd to. [para. 14].

R. v. Shepherd (C.) (2009), 391 N.R. 132; 331 Sask.R. 306; 460 W.A.C. 306; 2009 SCC 35, refd to. [para. 15].

R. v. Torsney (2009), 81 M.V.R.(5th) 212 (Ont. C.A.), refd to. [para. 16].

R. v. Mann (P.H.), [2004] 3 S.C.R. 59; 324 N.R. 215; 187 Man.R.(2d) 1; 330 W.A.C. 1; 2004 SCC 52, refd to. [para. 17].

New Brunswick (Board of Management) v. Dunsmuir, [2008] 1 S.C.R. 190; 372 N.R. 1; 329 N.B.R.(2d) 1; 844 A.P.R. 1; 2008 SCC 9, refd to. [para. 20].

R. v. Cunningham (D.J.) (2006), 401 A.R. 35; 391 W.A.C. 35; 2006 ABCA 345, refd to. [para. 22].

R. v. Hey (W.T.), [2009] A.R. Uned. 65; 2009 ABCA 204, refd to. [para. 23].

R. v. Duplessis (2007), 49 M.V.R.(5th) 252 (Alta. Q.B.), refd to. [para. 26].

R. v. Northcott (J.E.) (1995), 177 A.R. 94 (Q.B.), refd to. [para. 26].

R. v. Nitschke, 2007 CarswellAlta 1874 (Q.B.), refd to. [para. 27].

R. v. L.T.H., [2008] 2 S.C.R. 739; 379 N.R. 247; 268 N.S.R.(2d) 200; 857 A.P.R. 200, refd to. [para. 29].

R. v. Egger (J.H.), [1993] 2 S.C.R. 451; 153 N.R. 272; 141 A.R. 81; 46 W.A.C. 81, refd to. [para. 29].

R. v. Johns (B.C.) (1994), 155 A.R. 231; 73 W.A.C. 231 (C.A.), refd to. [para. 29].

R. v. MacKinnon (R.) (2003), 177 O.A.C. 188 (C.A.), refd to. [para. 29].

R. v. Hruby (1980), 19 A.R. 230 (C.A.), refd to. [para. 29].

R. v. Nelson (D.B.), [2006] A.R. Uned. 162; 2006 ABQB 297, refd to. [para. 29].

R. v. Krishnappa (P.) (2010), 488 A.R. 200; 2010 ABQB 144, refd to. [para. 35].

R. v. Mudry (1979), 19 A.R. 379 (C.A.), refd to. [para. 41].

R. v. Coverly (1979), 21 A.R. 233; 50 C.C.C.(2d) 518 (C.A.), refd to. [para. 41].

R. v. Seed (J.W.) (1998), 114 O.A.C. 326 (C.A.), refd to. [para. 43].

R. v. C.A.J. (2004), 370 A.R. 76; 44 Alta. L.R.(4th) 188; 2004 ABQB 838, refd to. [para. 44].

R. v. Sheck (J.A.) (1999), 253 A.R. 302; 1999 ABQB 891, refd to. [para. 48].

R. v. Johnson (D.A.), [2006] A.R. Uned. 520; 2006 ABPC 129, refd to. [para. 48].

R. v. Landry (1985), 36 M.V.R. 129 (N.B.Q.B.), refd to. [para. 48].

Counsel:

Sheila L. Jonker, for the Crown;

Shawn Beaver, for the appellant.

This appeal was heard on April 23, 2010, by Binder, J., of the Alberta Court of Queen's Bench, Judicial District of Wetaskiwin, who delivered the following reasons for judgment on May 11, 2010.