R. v. Callahan (S.L.), (2008) 455 A.R. 54 (QB)

• Judge: Clark, J.
• Court: Court of Queen's Bench of Alberta (Canada)
• Case Date: May 02, 2008
• Citations: (2008), 455 A.R. 54 (QB);2008 ABQB 324

R. v. Callahan (S.L.) (2008), 455 A.R. 54 (QB)

MLB headnote and full text

Temp. Cite: [2008] A.R. TBEd. JN.079

Savanna Lee Callahan (appellant) v. Her Majesty the Queen (respondent)

(040752412S1; 2008 ABQB 324)

Indexed As: R. v. Callahan (S.L.)

Alberta Court of Queen's Bench

Judicial District of Calgary

Clark, J.

June 3, 2008.

Summary:

The accused was charged with impaired driving and driving with an excessive blood-alcohol level.

The Alberta Provincial Court found the accused guilty of the charges. The accused appealed from the convictions.

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

Editor's Note: See [2006] A.R. Uned. 739 for a decision rendered by the trial judge on a voir dire.

Civil Rights - Topic 4609.1

Right to counsel - General - Duty of police investigators (incl. undercover officers) - [See Civil Rights - Topic 4610 ].

Civil Rights - Topic 4610

Right to counsel - General - Impaired driving (incl. demand for breath or blood sample) - The accused appealed from her convictions for impaired driving and driving with an excessive blood-alcohol level - The accused argued that the trial judge erred in law in finding that the police officers had fulfilled their implementation duties under s. 10(b) of the Charter - The accused submitted that, pursuant to R. v. McLinden (Alta. Prov. Ct.), the police officer was required to provide the accused with the white and yellow pages - The accused also took issue with the fact that the police officer dialled the telephone number of legal aid for her - The Alberta Court of Queen's Bench dismissed this ground of appeal - The court stated that "While as a matter of good practice the McLinden requirements ought to be followed, they are not iron clad rules that must be applied in every case. There is no legal error in the trial judge's reasoning on this point" - Further, relying on R. v. Watson (Alta. Q.B.), the trial judge found that it was not invariably improper for a police officer to dial legal aid for an accused - The accused had not identified any legal or factual errors with that conclusion - See paragraphs 45 to 48.

Civil Rights - Topic 8587.1

Canadian Charter of Rights and Freedoms - Practice - Notice - General - The accused appealed from her convictions for impaired driving and driving with an excessive blood-alcohol level - The accused had raised five Charter arguments at trial - The trial judge declined to hear one of those arguments on the basis that notice to the Crown was insufficient - The trial judge determined that the notice with respect to the excluded argument was overly vague and did not give the Crown sufficient information to meet the Charter arguments raised - With regard to the appropriate remedy, the trial judge rejected the possibility of an adjournment given the delay that had already occurred, and given that prior notice of the deficiencies in the Charter notice had been provided to the accused by the Crown - The Alberta Court of Queen's Bench held that there was no palpable and overriding error in the trial judge's conclusion that the notice was inadequate and the remedy chosen was an appropriate exercise of his discretion - See paragraphs 27 to 39.

Criminal Law - Topic 1362

Motor vehicles - Impaired driving - Evidence and proof - The accused appealed from her convictions for impaired driving and driving with an excessive blood-alcohol level - The accused argued that the trial judge erred in failing to find a breach of the accused's s. 10(b) Charter rights and thus admitting into evidence observations of indicia of impairment which were conscripted from the accused - The Alberta Court of Queen's Bench rejected this ground of appeal - The trial judge had concluded on the basis of R. v. Milne (Ont. C.A.) that observations of impairment, which did not arise from compelled participation of the accused, were admissible at trial to prove impairment - There was no error in law in that conclusion - See paragraphs 49 to 50.

Criminal Law - Topic 1362

Motor vehicles - Impaired driving - Evidence and proof - The accused appealed from her convictions for impaired driving and driving with an excessive blood-alcohol level - The accused argued that the trial judge erred in finding that the Crown had proved that the accused's blood-alcohol level exceeded the legal limit based on the opinion evidence of Ms. Blake - The accused submitted that the hypothetical fact scenarios provided by Blake "leave much in the way of certainty" - The accused further argued that there was no evidence to support a lack of bolus drinking and that there was evidence that drinking may have occurred contemporaneously with driving - The Alberta Court of Queen's Bench dismissed this ground of appeal - In coming to his conclusion, the trial judge satisfied himself that the Crown had proven the assumptions made by the expert witness in the hypothetical scenarios indicating that the accused was impaired - The trial judge, as the trier of fact, was in the best position to determine whether the Crown had proven impairment beyond a reasonable doubt - That the trial judge was assisted by expert testimony was not an error in law - The Crown was required to prove the offence beyond a reasonable doubt, not that hypothetical scenarios raised by the defence did not occur - See paragraphs 54 to 59.

Criminal Law - Topic 1362

Motor vehicles - Impaired driving - Evidence and proof - The accused was convicted of impaired driving and driving with an excessive blood-alcohol level after she was involved in a motor vehicle accident - The accused appealed, arguing that the trial judge's finding that the accused's ability to drive was impaired by alcohol was unreasonable and unsupported by the evidence - The accused submitted that there was a reasonable doubt and that the civilian witnesses who testified did not mention an odour of alcohol or indicate that alcohol was a factor in the accident - The accused submitted that the evidence of impairment came primarily from Cst. Enright - The Alberta Court of Queen's Bench dismissed the appeal - Impairment was an issue of fact which the trial judge had to decide on the evidence - The trial judge considered the facts before him and determined that the accused was impaired for the following reasons - First, despite dry road conditions the accused's vehicle crossed completely over the centre line causing the collision - Second, Cst. Enright noticed the smell of old breath alcohol in her vehicle - Third, there was an almost empty bottle of Mike's Hard Cranberry Lemonade in her vehicle - Fourth, the accused possessed the following indicia of impairment: slurred speech, the smell of alcohol on her breath, and bloodshot eyes - The trial judge considered these factors and determined that they established impairment beyond a reasonable doubt - There was no palpable and overriding error in making that conclusion - See paragraphs 60 to 62.

Criminal Law - Topic 1374

Motor vehicles - Impaired driving - Breathalyzer or blood sample - Evidence and certificate evidence (incl. evidence tending to show) - [See both Criminal Law - Topic 1383.5 ].

Criminal Law - Topic 1383.5

Motor vehicles - Impaired driving - Blood sample - Evidence and proof - The accused appealed from her convictions for impaired driving and driving with an excessive blood-alcohol level - The accused argued that the trial judge erred in law by placing an onus on the accused to raise a reasonable doubt that a blood sample taken at a hospital had been contaminated - The accused further submitted that the trial judge's finding that continuity of the hospital sample had been proven was unreasonable and unsupported by evidence - The Alberta Court of Queen's Bench held that the trial judge made no error in stating the test to be applied in determining whether continuity was proven - The trial judge stated that the issue to be decided was "Has the Crown proven beyond reasonable doubt the continuity of the hospital blood samples" - While the trial judge stated that the accused had not raised a reasonable doubt about the probability of contamination, that statement did not indicate that an onus was being placed on the accused to establish contamination - The trial judge found that the Crown had fulfilled its obligation to prove continuity beyond reasonable doubt - At no point did the trial judge presume continuity or shift the burden to the accused - The accused had not identified an error in the trial judge's reasoning rendering it "unreasonable and unsupported by evidence" - See paragraphs 40 to 44.

Criminal Law - Topic 1383.5

Motor vehicles - Impaired driving - Blood sample - Evidence and proof - The accused appealed from her convictions for impaired driving and driving with an excessive blood-alcohol level - The accused argued that the trial judge erred in according any weight to the hospital blood sample as the Crown did not have the benefit of any statutory presumptions and there was insufficient evidence as to the integrity of the sample - The accused submitted that the trial judge accorded too much weight to the hospital blood sample in the absence of evidence respecting testing procedures and handling the blood samples - The Alberta Court of Queen's Bench rejected this ground of appeal - The trial judge found that the Crown proved continuity beyond a reasonable doubt - There was no error in law in the legal tests that the trial judge applied in coming to that conclusion, and there was no palpable and overriding error in the factual conclusion that the trial judge arrived at - To the extent that the accused was arguing that the weight given to the blood sample was a palpable and overriding error, the court found no support for this contention - The trial judge considered the evidence before him, including expert evidence and concluded that the blood sample was determinative - The weight to be accorded to the evidence was in the trial judge's discretion, and there was no palpable and overriding error in the exercise of that discretion - See paragraphs 51 to 53.

Cases Noticed:

Housen v. Nikolaisen et al., [2002] 2 S.C.R. 235; 286 N.R. 1; 219 Sask.R. 1; 272 W.A.C. 1; 2002 SCC 33, refd to. [para. 23].

R. v. Ngo (D.T.) (2003), 327 A.R. 320; 296 W.A.C. 320; 175 C.C.C.(3d) 290; 2003 ABCA 121, refd to. [para. 24].

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, refd to. [para. 25].

R. v. Dwernychuk (M.K.) (1992), 135 A.R. 31; 33 W.A.C. 31; 77 C.C.C.(3d) 385 (C.A.), refd to. [para. 33].

R. v. Kutynec (1992), 52 O.A.C. 59; 7 O.R.(3d) 277 (C.A.), refd to. [para. 33].

R. v. Loveman (1992), 52 O.A.C. 94; 8 O.R.(3d) 51 (C.A.), refd to. [para. 33].

R. v. Baker (D.F.) (2004), 372 A.R. 230; 2004 ABPC 218, refd to. [para. 34].

R. v. Coles (M.F.) (2005), 374 A.R. 234; 2005 ABPC 20, refd to. [para. 34].

R. v. Blom (E.) (2002), 162 O.A.C. 238; 167 C.C.C.(3d) 332 (C.A.), dist. [para. 37].

R. v. Foote, [1992] A.J. No. 1081 (C.A.), refd to. [para. 43].

R. v. McLinden (L.A.), [2004] A.R. Uned. 132; 2004 ABPC 7, refd to. [para. 46].

R. v. Watson (L.L.) (2005), 386 A.R. 167; 2005 ABQB 680, refd to. [para. 48].

R. v. Milne (R.S.) (1996), 90 O.A.C. 348; 107 C.C.C.(3d) 118 (C.A.), leave to appeal denied (1996), 207 N.R. 78 (S.C.C.), refd to. [para. 49].

R. v. Flores (J.A.) (2007), 427 A.R. 337; 2007 ABQB 528, refd to. [para. 50].

R. v. Sanche (W.) (2003), 347 A.R. 133 (Prov. Ct.), refd to. [para. 58].

R. v. Grosse (P.) (1996), 91 O.A.C. 40 (C.A.), refd to. [para. 58].

R. v. Stellato (T.), [1994] 2 S.C.R. 478; 168 N.R. 190; 72 O.A.C. 140, affing. (1993), 61 O.A.C. 217; 12 O.R.(3d) 90 (C.A.), refd to. [para. 61].

R. v. Huddle (1989), 102 A.R. 144 (C.A.), refd to. [para. 61].

Statutes Noticed:

Canadian Charter of Rights and Freedoms, 1982, sect. 10(b) [para. 45].

Counsel:

Katherin J. Beyak, for the appellant;

Ryan Claxton, for the respondent.

This appeal was heard on May 2, 2008, before Clark, J., of the Alberta Court of Queen's Bench, Judicial District of Calgary, who delivered the following memorandum of decision on June 3, 2008.