R. v. Gabayne (J.), (2012) 545 A.R. 379 (PC)

• Judge: Semenuk, P.C.J.
• Court: Provincial Court of Alberta (Canada)
• Case Date: July 25, 2012
• Citations: (2012), 545 A.R. 379 (PC);2012 ABPC 206

R. v. Gabayne (J.) (2012), 545 A.R. 379 (PC)

MLB headnote and full text

Temp. Cite: [2012] A.R. TBEd. AU.037

Her Majesty the Queen v. Joel Gabayne (110212289P1-01-001-002; 2012 ABPC 206)

Indexed As: R. v. Gabayne (J.)

Alberta Provincial Court

Semenuk, P.C.J.

July 25, 2012.

Summary:

The accused was charged with driving a motor vehicle while having a blood-alcohol content exceeding the legal limit. At issue was the admissibility of the breathalyzer certificate. On the face of the certificate, it was recorded that the second breath sample was taken at "120", but that was crossed out and "0150" was inserted. The correction appeared to be initialized twice. The breathalyzer technician did not testify. The investigating officer gave no evidence respecting the correction.

The Alberta Provincial Court acquitted the accused. The breathalyzer certificate was inadmissible, because it was not proved beyond a reasonable doubt that the two breath samples were taken at least 15 minutes apart, as required by s. 258(1)(c) of the Criminal Code.

Criminal Law - Topic 1374

Offences against person and reputation - Motor vehicles - Impaired driving - Breathalyzer or blood sample - Evidence and certificate evidence - The Crown sought admission of a breathalyzer certificate in support of a charge that the accused drove a motor vehicle while having a blood-alcohol content exceeding the legal limit - On the face of the certificate, it was recorded that the second breath sample was taken at "120", but that was crossed out and "0150" was inserted - The correction appeared to be initialized twice - The breathalyzer technician did not testify and the investigating officer gave no evidence respecting the correction - The Alberta Provincial Court acquitted the accused - The breathalyzer certificate was inadmissible, because it was not proved beyond a reasonable doubt that the two breath samples were taken at least 15 minutes apart, as required by s. 258(1)(c) of the Criminal Code - Absent testimony from the technician or the investigating officer explaining the correction, there was no evidence as to the actual times that the breath samples were taken - The court stated that "a defect on the face of a certificate of analysis may be corrected by admissible viva voce evidence to fully explain the error and making the answer 'profoundly clear'" - Absent that explanation, the ambiguity had to be resolved in the accused's favour.

Evidence - Topic 1686

Hearsay rule - Hearsay rule exceptions and exclusions - Official statements - Certificates - Defective certificates - Validity of - [See Criminal Law - Topic 1374 ].

Cases Noticed:

R. v. Noble, [1978] 1 S.C.R. 632; 17 N.R. 555; 19 N.B.R.(2d) 417; 30 A.P.R. 417, refd to. [para. 50].

R. v. Bykowski (1980), 23 A.R. 426 (C.A.), refd to. [para. 50].

R. v. Ecker (1984), 55 A.R. 249 (Q.B.), refd to. [para. 50].

R. v. Jonasson (1990), 108 A.R. 270 (Prov. Ct.), refd to. [para. 50].

R. v. Ryden (M.J.) (1993), 145 A.R. 194; 55 W.A.C. 194 (C.A.), refd to. [para. 50].

R. v. Khroud, [1998] O.J. No. 6706 (C.J.), refd to. [para. 50].

R. v. Reutov (P.) (2000), 269 A.R. 104; 2000 ABPC 112, refd to. [para. 50].

R. v. Cardinal (S.R.) (2001), 301 A.R. 1; 2001 ABQB 872, refd to. [para. 50].

R. v. Smith (N.D.), [2012] A.R. Uned. 70; 2012 ABPC 14, refd to. [para. 50].

R. v. Gibson (Z.J.), [2012] A.R. Uned. 187; 2012 ABPC 50, refd to. [para. 50].

R. v. Earle (1981), 8 Man.R.(2d) 380; 10 M.V.R. 224 (Co. Ct.), refd to. [para. 60].

Counsel:

L. Stevens, for the Crown;

J. Wyman, for the accused.

This matter was heard at Calgary, Alberta, before Semenuk, P.C.J., of the Alberta Provincial Court, who delivered the following judgment on July 25, 2012.