R. v. Fox,

• Jurisdiction: Saskatchewan
• Judge: Vancise, Sherstobitoff and Jackson, JJ.A.
• Neutral Citation: 2003 SKCA 79
• Court: Court of Appeal (Saskatchewan)
• Date: 04 June 2003
• Citation: (2003), 238 Sask.R. 271 (CA),2003 SKCA 79,[2004] 7 WWR 477,14 CR (6th) 116,178 CCC (3d) 223,[2003] SJ No 556 (QL),238 Sask R 271,(2003), 238 SaskR 271 (CA),[2003] S.J. No 556 (QL),238 Sask.R. 271,238 SaskR 271

R. v. Fox (M.J.) (2003), 238 Sask.R. 271 (CA);

    305 W.A.C. 271

MLB headnote and full text

Temp. Cite: [2003] Sask.R. TBEd. SE.037

Her Majesty the Queen (appellant) v. Major Jay Fox (respondent)

(No. 585; 2003 SKCA 79)

Indexed As: R. v. Fox (M.J.)

Saskatchewan Court of Appeal

Vancise, Sherstobitoff and Jackson, JJ.A.

September 2, 2003.

Summary:

The accused appealed his conviction for driving with an excessive blood-alcohol content.

The Saskatchewan Court of Queen's Bench, in a decision reported 229 Sask.R. 284, allowed the appeal and ordered a new trial. The Crown appealed.

The Saskatchewan Court of Appeal allowed the appeal, set aside the decision below and restored the trial judge's decision.

Criminal Law - Topic 1374

Offences against person and reputation - Motor vehicles - Impaired driving - Breathalyzer - Evidence and certificate evidence (incl. evidence tending to show) - The accused was charged with driving with an excessive blood-alcohol content - The Saskatchewan Court of Appeal reviewed the presumption of identity in s. 258(1)(c) of the Criminal Code and the presumption of accuracy which was found through the application of s. 25(1) of the Interpretation Act to s. 258(1)(g) of the Criminal Code - See paragraphs 15 to 23 - The court reviewed the caselaw and concluded that evidence of low alcohol consumption by an accused, without direct evidence of breathalyzer malfunction, operator error or contamination, could be evidence to the contrary capable of rebutting the presumption of accuracy created - See paragraphs 25 to 52.

Criminal Law - Topic 1374

Offences against person and reputation - Motor vehicles - Impaired driving - Breathalyzer - Evidence and certificate evidence (incl. evidence tending to show) - The accused was charged with driving with an excessive blood-alcohol content - The Saskatchewan Court of Appeal stated that once the presumption of accuracy (i.e., the presumption that the results of the analyses of the breath of the accused accurately reflect the blood-alcohol concentration of the accused when he or she blew into the breathalyzer) was rebutted by an accused, the certificate was no longer deemed to establish the blood-alcohol content at the time of testing, but the certificate remained part of the evidence, and it was some evidence of the facts contained therein - See paragraph 66.

Criminal Law - Topic 1374

Offences against person and reputation - Motor vehicles - Impaired driving - Breathalyzer - Evidence and certificate evidence (incl. evidence tending to show) - The accused appealed his conviction for driving with an excessive blood-alcohol content - The summary conviction appeal judge held that the trial judge erred in referring to the "fail" on the roadside screening device as a means of determining the accused's credibility respecting his testimony about his low alcohol consumption - The Saskatchewan Court of Appeal stated that the need to consider the evidence of the "fail" was triggered by the accused's evidence - The roadside screening test was not being used, on its own, to convict the accused - It was, instead, some evidence which the court could consider to test the accused's statement that he or she had little to drink and to test the inference which flowed from that statement that the breathalyzer was not working properly - The Criminal Code did not preclude the use of the roadside test in this manner - Further, the absence of evidence of the proper functioning or recent testing of the roadside screening device should not lead to the automatic rejection of the test result - See paragraphs 67 to 84.

Criminal Law - Topic 1374

Offences against person and reputation - Motor vehicles - Impaired driving - Breathalyzer - Evidence and certificate evidence (incl. evidence tending to show) - The accused appealed his conviction for driving with an excessive blood-alcohol content - The summary conviction appeal judge held that the trial judge erred in referring to the "fail" on the roadside screening device as a means of determining the accused's credibility respecting his testimony about his low alcohol consumption - The Saskatchewan Court of Appeal held that the trial judge did not err when he held that, given all of the evidence, including the strength of the certificate representing the results taken by a trained technician on an approved machine, and the "fail" on the roadside screening device, that the accused's testimony could not be believed and that no reasonable doubt existed - See paragraph 92.

Criminal Law - Topic 1386.4

Offences against person and reputation - Motor vehicles - Impaired driving - Roadside screening test - Evidence and proof - [See third and fourth Criminal Law - Topic 1374 ].

Cases Noticed:

R. v. Gibson (1992), 100 Sask.R. 88; 18 W.A.C. 88; 72 C.C.C.(3d) 28 (C.A.), refd to. [para. 10, footnote 7].

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. 12, footnote 10].

R. v. Lambert (N.E.R.) (1996), 150 Sask.R. 64 (Q.B.), refd to. [para. 12, footnote 11].

R. v. St. Pierre (G.R.) (1992), 58 O.A.C. 47; 76 C.C.C.(3d) 249; 10 O.R.(3d) 215 (C.A.), refd to. [para. 15, footnote 13].

R. v. St. Pierre (G.R.), [1995] 1 S.C.R. 791; 178 N.R. 241; 79 O.A.C. 321, refd to. [para. 17, footnote 14].

R. v. Goddu (1984), 34 Sask.R. 251 (C.A.), refd to. [para. 24, footnote 18].

R. v. Parent (1982), 17 Sask.R. 361 (C.A.), refd to. [para. 24, footnote 19].

R. v. Kaminski (1992), 100 Sask.R. 192; 18 W.A.C. 192 (C.A.), refd to. [para. 24, footnote 21].

R. v. Moreau, [1979] 1 S.C.R. 261; 23 N.R. 541, refd to. [para. 24, footnote 22].

R. v. Crosthwait, [1980] 1 S.C.R. 1089; 31 N.R. 603; 25 Nfld. & P.E.I.R. 509; 68 A.P.R. 509; 52 C.C.C.(2d) 129, refd to. [para. 24, footnote 23].

R. v. Batley (1985), 39 Sask.R. 259; 19 C.C.C.(3d) 382 (C.A.), refd to. [para. 31, footnote 38].

R. v. Simonson (S.), [2001] S.J. No. 570 (Prov. Ct.), affd. (2002), 221 Sask.R. 156 (Q.B.), refd to. [para. 34, footnotes 39, 40].

R. v. Rendle (R.) (1997), 154 Sask.R. 140 (Q.B.), refd to. [para. 34, footnote 41].

R. v. Jess (B.M.) (2001), 214 Sask.R. 310 (Q.B.), refd to. [para. 34, footnote 42].

R. v. Hrebeniuk (C.W.), [2003] Sask.R. Uned. 89 (Prov. Ct.), refd to. [para. 34, footnote 43].

R. v. Krowicki (J.F.), [2003] Sask.R. Uned. 76 (Prov. Ct.), refd to. [para. 34, footnote 44].

R. v. Davis, [1974] 1 W.W.R. 87; 14 C.C.C.(2d) 513 (B.C.C.A.), refd to. [para. 42, footnote 53].

R. v. Kucher (1979), 16 A.R. 494; 48 C.C.C.(2d) 115 (C.A.), refd to. [para. 42, footnote 54].

R. v. Carter (1985), 7 O.A.C. 344; 19 C.C.C.(3d) 174 (C.A.), refd to. [para. 42, footnote 55].

R. v. Dubois (C.) (1990), 37 Q.A.C. 75; 62 C.C.C.(3d) 90 (C.A.), refd to. [para. 42, footnote 56].

R. v. Gilbert (1994), 74 O.A.C. 56; 92 C.C.C.(3d) 266 (C.A.), refd to. [para. 42, footnote 57].

R. v. Stinchcombe, [1991] 3 S.C.R. 326; 130 N.R. 277; 120 A.R. 161; 8 W.A.C. 161, refd to. [para. 45, footnote 61].

R. v. Coutts (D.) (1999), 121 O.A.C. 342; 136 C.C.C.(3d) 225; 45 O.R.(3d) 288 (C.A.), refd to. [para. 64, footnote 83].

R. v. Talbourdet (1984), 32 Sask.R. 5; 12 C.C.C.(3d) 173 (C.A.), refd to. [para. 69, footnote 87].

R. v. Thomsen, [1988] 1 S.C.R. 640; 84 N.R. 347; 27 O.A.C. 85, refd to. [para. 69, footnote 88].

R. v. Milne (R.S.) (1996), 90 O.A.C. 348; 107 C.C.C.(3d) 118 (C.A.), refd to. [para. 71, footnote 90].

R. v. Saunders (1988), 27 O.A.C. 184; 41 C.C.C.(3d) 532 (C.A.), refd to. [para. 72, footnote 91].

R. v. Bernard (1999), 140 C.C.C.(3d) 412 (Que. C.A.), refd to. [para. 77, footnote 97].

Statutes Noticed:

Criminal Code, R.S.C. 1985, c. C-46, sect. 258(1)(c) [para. 16]; sect. 258(1)(g) [para. 19].

Authors and Works Noticed:

Edgar, Allen C., "Evidence to the Contrary" and "Over 80": Presumptions, their Rebuttal and Assessment of Defence Evidence of Alcohol Consumption (2000), 49 M.V.R.(3d) 64, generally [para. 60, footnote 76]; p. 80 [para. 60, footnote 77].

Fitzgerald, Thomas E.K., "Evidence to the Contrary" and the Breathalyzer (1991), 3 J.M.V.L. 225, generally [para. 42, footnote 55].

Counsel:

Anthony B. Gerein, for the appellant;

The respondent appearing on his own behalf.

This appeal was heard on June 4, 2003, before Vancise, Sherstobitoff and Jackson, JJ.A., of the Saskatchewan Court of Appeal.

Jackson, J.A., delivered the following judgment for the Court of Appeal on September 2, 2003.