R. v. Enden (A.), (2007) 304 Sask.R. 283 (CA)

• Judge: Sherstobitoff, Hunter and Wilkinson, JJ.A.
• Court: Court of Appeal (Saskatchewan)
• Case Date: September 11, 2007
• Jurisdiction: Saskatchewan
• Citations: (2007), 304 Sask.R. 283 (CA);2007 SKCA 100

R. v. Enden (A.) (2007), 304 Sask.R. 283 (CA);

      413 W.A.C. 283

MLB headnote and full text

Temp. Cite: [2007] Sask.R. TBEd. OC.004

Her Majesty the Queen (appellant) v. Allen Enden (respondent)

(No. 1235; 2007 SKCA 100)

Indexed As: R. v. Enden (A.)

Saskatchewan Court of Appeal

Sherstobitoff, Hunter and Wilkinson, JJ.A.

September 11, 2007.

Summary:

Enden was convicted of driving with an excessive blood-alcohol level. He appealed, asserting that insufficiencies in the trial judge's reasons prejudiced his right to a full appeal and that the trial judge had erred in failing to review material inconsistencies and conflicts in the evidence.

The Saskatchewan Court of Queen's Bench, in a decision reported at 281 Sask.R. 280, allowed the appeal, referring the matter back to the Provincial Court for a new trial. The Crown appealed.

The Saskatchewan Court of Appeal allowed the appeal. The conviction was restored.

Courts - Topic 583

Judges - Duties - Re reasons for decisions (incl. notes) - Enden was charged with driving with an excessive blood-alcohol level - His main defence was "evidence to the contrary" - During summation, the trial judge raised the issue of delay in taking breath samples - The matter was not dealt with in any other way - Enden was convicted in an oral decision in which the trial judge did not mention delay - A summary conviction appeal judge allowed Enden's appeal on the basis, inter alia, that the trial judge had failed to give reasons respecting delay - The Saskatchewan Court of Appeal restored the conviction - The trial judge was neither obliged nor entitled to deal with delay as a defence - No application had been made under s. 24(2) of the Charter to exclude the certificate of analyses and no objection was made to its entry into evidence - To allow the delay argument at the final stage of the trial deprived the Crown of the opportunity to lead relevant evidence - Furthermore, Enden was not allowed to raise an argument on appeal where the issue was not properly raised at trial - Finally, lack of adequate reasons was not a ground for setting aside a judgment where the record allowed a proper review of the decision - Here, the uncontradicted evidence established that the trial judge correctly found the delay defence too weak to require any explanation - See paragraphs 17 to 22.

Criminal Law - Topic 1362

Offences against person and reputation - Motor vehicles - Impaired driving - Evidence and proof - [See Courts - Topic 583 and second Criminal Law - Topic 4684 ].

Criminal Law - Topic 4684

Procedure - Judgments and reasons for judgment - Reasons for judgment - Sufficiency of - [See Courts - Topic 583 ].

Criminal Law - Topic 4684

Procedure - Judgments and reasons for judgment - Reasons for judgment - Sufficiency of - Enden was charged with driving with an excessive blood-alcohol level - His main defence was "evidence to the contrary" - The trial judge rejected Enden's evidence regarding his consumption of alcohol as not credible - Enden was convicted in an oral decision in which the trial judge indicated that there was no evidence to indicate that "the reading would have been under .08 at the time of driving" - A summary conviction appeal judge allowed Enden's appeal on the basis, inter alia, that the trial judge had failed to review material inconsistencies and conflicts in the evidence, indicating a possible lack of compliance with R. v. D.W. (S.C.C. 1991) - The Saskatchewan Court of Appeal restored the conviction - The only contradictions in the evidence were in Enden's own evidence and between his evidence and that of other defence witnesses - The trial judge's determination that Enden's evidence was not credible rendered the defence expert's opinion useless as it was based on facts not proven - The reasons given by the trial judge regarding the "evidence to the contrary" defence were quite adequate - See paragraphs 23 to 24.

Criminal Law - Topic 7470

Summary conviction proceedings - Appeals - General - Restriction on arguments on appeal - [See Courts - Topic 583 ].

Cases Noticed:

R. v. D.W., [1991] 1 S.C.R. 742; 122 N.R. 277; 46 O.A.C. 352, refd to. [para. 1].

R. v. Pelletier (J.G.) (1995), 128 Sask.R. 214; 85 W.A.C. 214; 97 C.C.C.(3d) 139 (C.A.), refd to. [para. 20].

R. v. Kutynec (1992), 52 O.A.C. 59; 70 C.C.C.(3d) 289; 7 O.R.(3d) 277 (C.A.), refd to. [para. 20].

R. v. Rollocks (R.) (1994), 72 O.A.C. 269; 91 C.C.C.(3d) 193 (C.A.), refd to. [para. 21].

R. v. Madraga (G.A.) (2001), 203 Sask.R. 78; 240 W.A.C. 78; 2001 SKCA 10, refd to. [para. 24].

Counsel:

Lane Wiegers, for the Crown;

John Benesh, for the respondent.

This appeal was heard on September 11, 2007, by Sherstobitoff, Hunter and Wilkinson, JJ.A., of the Saskatchewan Court of Appeal. The court delivered its decision orally on September 11, 2007, and Sherstobitoff, J.A., filed the following written reasons for the court on September 25, 2007.