R. v. Buffalo (M.D.), 2009 ABPC 261

• Judge: Rosborough, P.C.J.
• Court: Provincial Court of Alberta (Canada)
• Case Date: June 12, 2009
• Citations: 2009 ABPC 261;(2009), 480 A.R. 268 (PC)

R. v. Buffalo (M.D.) (2009), 480 A.R. 268 (PC)

MLB headnote and full text

Temp. Cite: [2009] A.R. TBEd. SE.100

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

(081314205P1; 2009 ABPC 261)

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

Alberta Provincial Court

Rosborough, P.C.J.

September 2, 2009.

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 determined the issues and held that the certificate was admissible.

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 - 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 Alberta Provincial Court held that "(a) preconditions to the admissibility of the certificate in this case (including those in s. 258(7) C.C.) need be proven only on a balance of probabilities; (b) the presumption created by s. 258(1)(c) C.C. is not a 'vital issue' requiring application of the criminal standard before it can be drawn; (c) it is consistent with existing law and in accordance with important criminal law policy objectives that the presumption in s. 258(1)(c) C.C. be invoked on a standard of balance of probabilities; not proof beyond a reasonable doubt; (d) if I am in error in this analysis and it is necessary to conclude that the prosecution has proven beyond a reasonable doubt that the presumption in s. 258(1)(c) C.C. ought to be invoked, I find that the criminal standard has been met and I would invoke the presumption." - See paragraphs 16 to 52.

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 - 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, 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 Alberta Provincial Court held that s. 258(7) required that the accused be given a copy of the certificate together with reasonable notice of the prosecution's intention to use it at trial - The ways in which these requirements could be met were legion - None of case law establish, as a matter of law, that any particular method of discharging those requirements had to be followed or that any particular words had to be used when so doing - See paragraphs 53 to 57.

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 - 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 Alberta Provincial Court rejected the argument and held that the certificate was admissible - 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 obverse of the certificate - The constable testified that this was his usual practice - The only reasonable inference to be drawn from the evidence adduced was that the accused was given a copy of the certificate together with reasonable notice of its intended use - See paragraphs 58 to 60.

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 all Criminal Law - Topic 1374 ].

Cases Noticed:

R. v. Duplessis (2007), 49 M.V.R.(5th) 252 (Alta. Q.B.), refd to. [para. 4].

R. v. Egger (J.H.), [1993] 2 S.C.R. 451; 153 N.R. 272; 141 A.R. 81; 46 W.A.C. 81, consd. [para. 9].

R. v. Kurich (A.), [2007] A.R. Uned. 66 (Prov. Ct.), refd to. [para. 9].

R. v. Northcott (J.E.) (1995), 177 A.R. 94 (Q.B.), refd to. [para. 10].

R. v. Nitschke, 2007 CarswellAlta 1874 (Q.B.), refd to. [para. 10].

R. v. Hruby (1980), 19 A.R. 230 (C.A.), refd to. [para. 12].

R. v. Morin, [1988] 2 S.C.R. 345; 88 N.R. 161; 30 O.A.C. 81, refd to. [para. 16].

R. v. Bouvier, [1985] 2 S.C.R. 485; 64 N.R. 321; 11 O.A.C. 185, affing. (1984), 1 O.A.C. 302 (C.A.), refd to. [para. 16].

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. 17].

R. v. Arp (B.), [1998] 3 S.C.R. 339; 232 N.R. 317; 114 B.C.A.C. 1; 186 W.A.C. 1, refd to. [para. 17].

R. v. White (R.G.) and Côté (Y.), [1998] 2 S.C.R. 72; 227 N.R. 326; 112 O.A.C. 1, refd to. [para. 17].

R. v. K.G.B., [1993] 1 S.C.R. 740; 148 N.R. 241; 61 O.A.C. 1, refd to. [para. 17].

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. 17].

R. v. Carter, [1982] 1 S.C.R. 938; 47 N.R. 288; 46 N.B.R.(2d) 142; 121 A.P.R. 142, refd to. [para. 17].

R. v. Singh (J.), [2007] 3 S.C.R. 405; 369 N.R. 1; 249 B.C.A.C. 1; 414 W.A.C. 1, refd to. [para. 19].

R. v. Aujla (1989), 47 C.C.C.(3d) 481 (B.C.C.A.), refd to. [para. 35].

R. v. Montgomery (1992), 52 O.A.C. 81; 70 C.C.C.(3d) 229 (C.A.), refd to. [para. 35].

R. v. Corning (1987), 81 N.S.R.(2d) 53; 203 A.P.R. 53 (C.A.), refd to. [para. 39].

R. v. Johns (B.C.) (1994), 155 A.R. 231; 73 W.A.C. 231 (C.A.), refd to. [para. 42].

R. v. MacKinnon (R.) (2003), 177 O.A.C. 188 (C.A.), refd to. [para. 43].

R. v. Nelson (D.B.), [2006] A.R. Uned. 162 (Q.B.), refd to. [para. 45].

R. v. Mokelky (D.S.) (2008), 451 A.R. 346; 2008 ABPC 343, refd to. [para. 45].

R. v. Trang (D.) et al. (2002), 329 A.R. 241; 2002 CarswellAlta 1408 (Q.B.), refd to. [para. 46].

R. v. Willier (W.L.), [2007] A.R. Uned. 542 (Prov. Ct.), refd to. [para. 46].

R. v. Khadoo, 1995 CarswellOnt 735 (Gen. Div.), refd to. [para. 46].

R. v. Powers (M.J.), [2005] B.C.T.C. 1317 (S.C.), refd to. [para. 46].

R. v. Triantos, 1994 CarswellOnt 21 (Gen. Div.), refd to. [para. 46].

R. v. Barratt (1977), 35 C.C.C.(2d) 174 (Ont. H.C.), refd to. [para. 46].

R. v. Torsney (B.), [2008] O.J. No. 1825 (C.J.), refd to. [para. 46].

R. v. Oslowski, 2006 ONCJ 488, refd to. [para. 46].

R. v. Fong, 2006 CarswellOnt 1850 (C.J.), refd to. [para. 46].

R. v. Buffett, 2005 CarswellOnt 811 (C.J.), refd to. [para. 46].

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. 55].

Statutes Noticed:

Criminal Code, R.S.C. 1985, c. C-46, sect. 258(7) [para. 14].

Authors and Works Noticed:

Paciocco, David M., and Stuesser, Lee, The Law of Evidence (5th Ed. 2008), p. 21 [para. 18].

Preston, Proof of Evidentiary Facts Beyond a Reasonable Doubt, in Beyond Reason?, 3 Can. Crim. L. Rev. 301, generally [para. 51].

Counsel:

T. Wilson, for the Crown;

S. Beaver, for the accused.

This matter was heard on March 2 and June 12, 2009, at Wetaskiwin, Alberta, by Rosborough, P.C.J., of the Alberta Provincial Court, who delivered the following reasons for decision on September 2, 2009.