R. v. Casagranda; R. v. McCutcheon; R. v. Lemaire; R. v. Owen, (1980) 25 A.R. 275 (QB)

• Judge: Kerans, J.
• Court: Court of Queen's Bench of Alberta (Canada)
• Case Date: November 18, 1980
• Citations: (1980), 25 A.R. 275 (QB)

R. v. Casagranda (1980), 25 A.R. 275 (QB)

MLB headnote and full text

R. v. Casagranda; R. v. McCutcheon; R. v. Lemaire; R. v. Owen

(Nos. Q.B. 80-01-A-0512; Q.B. 79-01-A-0402; Q.B. 80-01-A-0315; Q.B. 80-01-A-0656)

Indexed As: R. v. Casagranda; R. v. McCutcheon; R. v. Lemaire; R. v. Owen

Alberta Court of Queen's Bench

Kerans, J.

November 18, 1980.

Summary:

This headnote contains no summary.

Courts - Topic 290

Judges - Powers or jurisdiction - Respecting judgments - The Alberta Court of Appeal stated that under ss. 3(3) and 7 of the Court of Queen's Bench Act an appeal court judge continues to have jurisdiction to deliver judgments and impose sentences for cases heard while a judge of the Court of Queen's Bench - See paragraph 25.

Criminal Law - Topic 1374

Motor vehicles - Impaired driving - Breathalyzer - Certificate evidence of results of analysis of breathalyzer solution - As soon as practicable - The accused Casagranda was given a breathalyzer demand two blocks from the police station - The two police officers and the accused waited for a tow truck to remove the accused's vehicle, which was unsatisfactorily and illegally parked - 32 minutes elapsed between the demand and the first breathalyzer test - The trial judge acquitted the accused of driving after consuming an excessive amount of alcohol contrary to s. 236 of the Criminal Code - The trial judge held that the breathalyzer test was not given as soon as practicable because one of the police officers could have walked the accused to the police station for the test, while the other officer waited for the tow truck - The Crown appealed - The Alberta Court of Queen's Bench allowed the appeal, ordered a new trial and held that the delay was not unreasonable - See paragraphs 3 and 19 to 21.

Criminal Law - Topic 1374

Motor vehicles - Impaired driving - Breathalyzer - Certificate evidence of results of analysis of breathalyzer solution - As soon as practicable - The accused McCutcheon was given a breathalyzer demand - The police took 10 to 15 minutes to secure the accused's vehicle before leaving the scene - The first breathalyzer test was aborted because of a machine malfunction - The second test was given after the "usual" 20 minute wait - The trial judge convicted the accused of driving after consuming an excessive amount of alcohol contrary to s. 236 of the Criminal Code - The accused appealed on the ground that the breathalyzer tests were not given as soon as practicable, because of the delay in leaving the scene and the time lapses before the accepted tests were given - The Alberta Court of Queen's Bench dismissed the appeal and held that the delays were not unreasonable - See paragraphs 4 and 22.

Criminal Law - Topic 1374

Motor vehicles - Impaired driving - Breathalyzer - Certificate evidence of results of analysis of breathalyzer solution - As soon as practicable - While searching for an escaped prisoner the police stopped the accused Lemaire and gave him a breathalyzer demand - Before going to the station the police were informed of a possible sighting of the escaped prisoner - The police spent some minutes in a fruitless search for the prisoner - 38 minutes elapsed between the breathalyzer demand and test - The trial judge acquitted the accused of driving after consuming an excessive amount of alcohol contrary to s. 236 - The trial judge held the test was not given as soon as practicable, because the officers should not have searched for the escaped prisoner - The Crown appealed - The Alberta Court of Queen's Bench allowed the appeal, entered a conviction and held that the delay was not unreasonable - See paragraphs 6, 7 and 23.

Criminal Law - Topic 1374

Motor vehicles - Impaired driving - Breathalyzer - Certificate evidence of results of analysis of breathalyzer solution - As soon as practicable - While the police were pursuing the accused Owen, the accused ran into another vehicle - The police gave the accused a breathalyzer demand, made damage stickers, filled out an accident report and obtained insurance information from both drivers - There was a 45 minute delay between the breathalyzer demand and the test - The trial judge acquitted the accused of driving after consuming an excessive amount of alcohol contrary to s. 236 of the Criminal Code, because the breathalyzer test was not given as soon as practicable - The Crown appealed - The Alberta Court of Queen's Bench allowed the appeal, entered a conviction and held that the delay was not unreasonable - See paragraphs 8 and 24.

Cases Noticed:

R. v. Mudry (1980), 19 A.R. 379 (Alta. C.A.), appld. [para. 9].

R. v. Fitzpatrick (1978), 3 A.R. 261; 2 M.V.R. 216 (Alta. S.C.T.D.), refd to. [para. 9].

Wild v. R. (1970), 72 W.W.R.(N.S.) 603 (S.C.C.), refd to. [para. 9].

Tiesmaki et al. v. Wilson et al., [1975] 6 W.W.R. 639, refd to. [para. 9].

R. v. MacDonald (1976), 29 C.C.C.(2d) 257 (S.C.C.), refd to. [para. 9].

R. v. Wolff (1976), 31 C.C.C.(2d) 337 (Ont. H.C.), refd to. [para. 9].

R. v. Teague (1972), 11 C.C.C.(2d) 191 (B.C.C.A.), refd to. [para. 9].

R. v. LeSann, [1972] 4 W.W.R. 430 (Sask. D.C.), refd to. [para. 9].

R. v. Rusal (1980), 3 M.V.R. 101, refd to. [para. 9].

R. v. Ceccacci (1980), 3 M.V.R. 158, refd to. [para. 9].

R. v. Finlayson (1975), 21 C.C.C.(2d) 511, refd to. [para. 9].

R. v. Zantolas, [1980] B.C.D. (Crim.) 5596-05 (B.C.C.C.), refd to. [para. 9].

R. v. Morrison, [1979] B.C.D. (Crim.) 5596-06 (B.C.C.C.), refd to. [para. 9].

R. v. Clutchey, [1979] B.C.D. (Crim.) 5596-03 (P.C.J.), refd to. [para. 9].

R. v. Hamilton, [1980] B.C.D. (Crim.) 5596-03 (B.C.C.C.), refd to. [para. 9].

R. v. Lightfoot (1980), 4 M.V.R. 238 (Ont. C.A.), refd to. [para. 9].

Statutes Noticed:

Criminal Code of Canada, R.S.C. 1970, c. C-34, sect. 237(1)(c)(ii) [para. 1].

Court of Queen's Bench Act, S.A. 1978, c. 51, sect. 3(3), sect. 7 [para. 25].

Counsel:

R.G. Mitchell, for the Crown;

L.W. Scott, for the respondent Don Henry Casagranda;

J.A. Butlin, for the appellant Gilbert Paige McCutcheon;

J.P. Stopa, for the respondent Gilles Lemaire;

J.R. Quigley, for the respondent Gerald Stephen Owen.

This case was heard by KERANS, J., of the Alberta Court of Queen's Bench.

On November 18, 1980, KERANS, J., delivered the following judgment: