R. v. Corbett (B.R.), (2009) 485 A.R. 349 (QB)

• Judge: Ross, J.
• Court: Court of Queen's Bench of Alberta (Canada)
• Case Date: July 17, 2009
• Citations: (2009), 485 A.R. 349 (QB);2009 ABQB 619

R. v. Corbett (B.R.) (2009), 485 A.R. 349 (QB)

MLB headnote and full text

Temp. Cite: [2009] A.R. TBEd. NO.022

Her Majesty the Queen (respondent) v. Bruce Randolph Corbett (accused/appellant)

(080365133S1; 2009 ABQB 619)

Indexed As: R. v. Corbett (B.R.)

Alberta Court of Queen's Bench

Judicial District of Red Deer

Ross, J.

October 28, 2009.

Summary:

The accused was charged with impaired driving and driving with an excessive blood-alcohol level. He alleged a violation of his s. 8 Charter rights, arguing that the investigating officer could not reasonably rely on the results of the approved screening device (ASD) and therefore did not have the requisite grounds to make an evidentiary breath demand. The trial judge held there was no s. 8 breach and convicted the accused of driving with an excessive blood-alcohol level (summary conviction offence). The accused appealed, arguing that the officer either did not wait long enough to administer the ASD test, or, alternatively, waited too long. He also argued that the trial judge's conduct and comments gave rise to a reasonable apprehension of bias.

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

Civil Rights - Topic 8584

Canadian Charter of Rights and Freedoms - Practice - Time for raising Charter issues - The accused was charged with impaired driving offences - He alleged a violation of his s. 8 Charter rights, arguing that the investigating officer could not reasonably rely on the results of the approved screening device (ASD) and therefore did not have the requisite grounds to make an evidentiary breath demand - The trial judge held there was no s. 8 breach - On the summary conviction appeal, the accused argued that the officer either did not wait long enough to administer the ASD test, or, alternatively, the test was administered too late - The alternative argument was not in issue at trial - The Alberta Court of Queen's Bench refused to allow the accused to raise the promptness of the ASD for the first time on appeal - There had been no significant change in the law on this issue between trial and this appeal - Further, there were concerns relating to the evidentiary foundation, which in this case was part and parcel of the narrative of events - Refusing to permit the accused to raise this new issue on appeal would not give rise to a miscarriage of justice - See paragraphs 25 to 37.

Courts - Topic 686

Judges - Disqualification - Bias - By trial judge - The accused appealed his conviction for driving with an excessive blood-alcohol level (summary conviction offence) - He argued that the trial Judge was biased, or he would be reasonably seen to be biased - He relied on four things - First, the trial judge's comments regarding the accused's unsuccessful s. 8 Charter argument - Second, his statement that the "forthwith" requirement in s. 254(2) placed an onus on the appellant (not the Crown) - Third, his indication that he would have been prepared to convict on the impaired driving charge, and his lack of reasons in this regard - Fourth, his assistance to the Crown by inquiring whether the Crown had tendered the Certificate of Analyses, and whether the evidence on the voir dire was applied by consent to the trial proper - The Alberta Court of Queen's Bench held that the accused had not demonstrated a reasonable apprehension of bias - Respecting the fourth item, the actions complained of did not approach the level of judicial intervention that could give rise to an unfair trial or a reasonable perception of bias - Even assuming the inquiries could be characterized as prompts to the Crown, they would not lead a reasonable observer to believe the trial Judge had assumed the role of Crown counsel or was partial to the Crown - See paragraphs 38 to 56.

Courts - Topic 691

Judges - Disqualification - Bias - Reasonable apprehension of bias - [See Courts - Topic 686 ].

Criminal Law - Topic 1386.2

Motor vehicles - Impaired driving - Roadside screening test - Time and place for (incl. residual mouth alcohol) - A police officer made an approved screening device demand to accused - The officer waited 14 minutes to make the demand because the accused had stated that his last drink was five minutes prior to being stopped - The officer testified that he had been taught on his ASD courses that residual mouth alcohol was gone after five minutes but that, as a matter of practice, they were taught not to take the sample unless there had been a 20 minute lapse - The trial judge held that the officer was entitled to rely on the ASD demand and convicted the accused of driving with an excessive blood-alcohol level (summary conviction offence) - The accused appealed, arguing that the trial judge erred in finding that the officer was entitled to rely on the ASD test result because the test was administered too soon, because the officer did not wait a full 20 minutes as he had been trained to do before making a demand for a breath sample - The Alberta Court of Queen's Bench rejected the argument - The trial judge accepted the officer's evidence that he believed the ASD test result was accurate, because he believed a five minute delay was sufficient for the test to be accurate - This factual finding was not unreasonable and was entitled to deference - Given this finding, the trial judge was correct to conclude that the officer had the necessary subjective grounds for an evidentiary breath demand - The officer's belief was also objectively reasonable - The trial judge accepted that the information available to the officer from his ASD course that a five minute delay was sufficient to ensure the ASD test was reliable - On the basis of this finding of fact, an objective observer who had the same information as the officer could reasonably conclude that the test was reliable - See paragraphs 19 to 24.

Criminal Law - Topic 7663

Summary conviction proceedings - Appeals - Grounds - Bias - [See Courts - Topic 686 ].

Practice - Topic 9012

Appeals - Restrictions on argument on appeal - Issues or points not previously raised - [See Civil Rights - Topic 8584 ].

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. 14].

R. v. Shepherd (C.), [2009] 2 S.C.R. 527; 391 N.R. 132; 331 Sask.R. 306; 460 W.A.C. 306; 245 C.C.C.(3d) 137; 2009 SCC 35, refd to. [para. 15].

R. v. Bernshaw (N.), [1995] 1 S.C.R. 254; 176 N.R. 81; 53 B.C.A.C. 1; 87 W.A.C. 1; 95 C.C.C.(3d) 193, refd to. [para. 17].

R. v. Woods (J.C.), [2005] 2 S.C.R. 205; 336 N.R. 1; 195 Man.R.(2d) 131; 351 W.A.C. 131; 2005 SCC 42, refd to. [para. 17].

R. v. R.D.S., [1997] 3 S.C.R. 484; 218 N.R. 1; 161 N.S.R.(2d) 241; 477 A.P.R. 241; 118 C.C.C.(3d) 353, refd to. [para. 20].

R. v. Oduneye (S.O.) (1995), 169 A.R. 353; 97 W.A.C. 353; 15 M.V.R.(3d) 161 (C.A.), refd to. [para. 22].

R. v. Brown (A.R.R.), [1993] 2 S.C.R. 918; 155 N.R. 225; 141 A.R. 163; 46 W.A.C. 163; 105 D.L.R.(4th) 199; 83 C.C.C.(3d) 129, refd to. [para. 28].

R. v. Brown (A.R.R.) (1992), 127 A.R. 89; 20 W.A.C. 89; 73 C.C.C.(3d) 148 (C.A.), refd to. [para. 30].

Vickery v. Prothonotary, Supreme Court (N.S.), [1991] 1 S.C.R. 671; 124 N.R. 95; 104 N.S.R.(2d) 181; 283 A.P.R. 181; 64 C.C.C.(3d) 65, refd to. [para. 30].

R. v. Weir (D.T.) (1999), 250 A.R. 73; 213 W.A.C. 73; 140 C.C.C.(3d) 441; 1999 ABCA 275, refd to. [para. 32].

Aftergood v. Alberta (Minister of Municipal Affairs) et al. (2006), 384 A.R. 189; 367 W.A.C. 189; 2006 ABCA 154, refd to. [para. 33].

R. v. Grant (D.), [2009] 2 S.C.R. 353; 391 N.R. 1; 253 O.A.C. 124; 245 C.C.C.(3d) 1; 2009 SCC 32, refd to. [para. 36].

R. v. Tunke (1975), 25 C.C.C.(2d) 518 (Alta. T.D.), dist. [para. 37].

Committee for Justice and Liberty Foundation et al. v. National Energy Board et al., [1978] 1 S.C.R. 369; 9 N.R. 115, refd to. [para. 39].

R. v. Sheppard (C.), [2002] 1 S.C.R. 869; 284 N.R. 342; 211 Nfld. & P.E.I.R. 50; 633 A.P.R. 50; 2002 SCC 26, refd to. [para. 42].

R. v. Osolin, [1993] 4 S.C.R. 595; 162 N.R. 1; 38 B.C.A.C. 81; 62 W.A.C. 81; 86 C.C.C.(3d) 481; 1993 CanLII 54, refd to. [para. 45].

R. v. Brouillard, [1985] 1 S.C.R. 39; 57 N.R. 168; 17 C.C.C.(3d) 193; 1985 CanLII 56, refd to. [para. 46].

R. v. Stucky (D.) (2009), 256 O.A.C. 4; 240 C.C.C.(3d) 141; 2009 ONCA 151, refd to. [para. 46].

R. v. MacDonald (D.R.) et al. (2001), 300 A.R. 31; 2001 ABQB 796, refd to. [para. 46].

R. v. Valley (1986), 13 O.A.C. 89; 26 C.C.C.(3d) 207 (C.A.), refd to. [para. 48].

R. v. Petruk (R.D.) (1999), 232 A.R. 140; 195 W.A.C. 140; 1999 ABCA 11, refd to. [para. 48].

R. v. Hodson (B.S.) (2001), 281 A.R. 76; 248 W.A.C. 76; 2001 ABCA 111, refd to. [para. 54].

Counsel:

Anders N. Quist, for the respondent;

Peter Shipanoff, for the accused/appellant.

This appeal was heard on July 17, 2009, with additional written submissions on October 16, 2009, before Ross, J., of the Alberta Court of Queen's Bench, Judicial District of Red Deer, who delivered the following judgment on October 28, 2009.