R. v. Galloway (R.), (2004) 249 Sask.R. 262 (CA)

JurisdictionSaskatchewan
JudgeBayda, C.J.S., Tallis and Jackson, JJ.A.
Neutral Citation2004 SKCA 106
CourtCourt of Appeal (Saskatchewan)
Date04 August 2004
Citation(2004), 249 Sask.R. 262 (CA),2004 SKCA 106,[2005] 1 WWR 54,187 CCC (3d) 305,249 Sask R 262,3 MVR (5th) 1249,249 SaskR 262,(2004), 249 SaskR 262 (CA),249 Sask.R. 262

R. v. Galloway (R.) (2004), 249 Sask.R. 262 (CA);

    325 W.A.C. 262

MLB headnote and full text

Temp. Cite: [2004] Sask.R. TBEd. AU.028

Rita Galloway (appellant) v. Her Majesty the Queen (respondent)

(Nos. 759, 800; 2004 SKCA 106)

Indexed As: R. v. Galloway (R.)

Saskatchewan Court of Appeal

Bayda, C.J.S., Tallis and Jackson, JJ.A.

August 4, 2004.

Summary:

The accused was convicted of dangerous driving causing death, dangerous driving causing bodily harm, impaired driving causing death, impaired driving causing bodily harm and leaving the scene of a collision with the intention of avoiding liability.

The Saskatchewan Court of Queen's Bench, in a decision reported at 247 Sask.R. 107, sentenced the accused to a total sentence of 2.5 years' imprisonment, imposed a three year driving prohibition and ordered that she provide a DNA sample. The accused appealed the conviction and sentence. The Crown appealed the sentence. The accused applied for release pending the appeal.

The Saskatchewan Court of Appeal, per Vancise, J.A., in a decision reported at 249 Sask.R. 121; 325 W.A.C. 121, dismissed the application but ordered that the appeal be expedited.

The Saskatchewan Court of Appeal dismissed the conviction and sentence appeals.

Civil Rights - Topic 8368

Canadian Charter of Rights and Freedoms - Denial of rights - Remedies - Exclusion of evidence - The accused was charged with, inter alia, dangerous driving causing death - Her damaged vehicle was taken to the pound of a towing company - Many months after the accident, a police officer searched the accused's vehicle and had it examined by a certified automobile mechanic without obtaining a search warrant - The accused was the registered owner of the vehicle and had renewed the registration of the vehicle after it was impounded - The trial judge found that the search violated the accused's s. 8 Charter rights - However, the trial judge declined to exclude the evidence obtained by the search under s. 24(2) of the Charter as it was not conscriptive, existed independently of the breach and was discoverable, the admission of the evidence would not render the trial unfair and the officer acted in good faith - The Saskatchewan Court of Appeal held that the trial judge did not err in admitting this evidence - See paragraphs 72 and 82.

Courts - Topic 583

Judges - Duties - Re reasons for decisions - [See Criminal Law - Topic 4684 ].

Criminal Law - Topic 80

General principles - Res judicata (multiple convictions for same subject matter precluded) - Circumstances when defence may be raised - The accused was convicted of, inter alia, dangerous driving causing death, dangerous driving causing bodily harm, impaired driving causing death and impaired driving causing bodily harm - On appeal, the accused argued that, on a proper application of the Kienapple principle, the trial judge should have convicted only on the impaired driving charges (Criminal Code, s. 253) and entered a stay with respect to the dangerous driving charges (Criminal Code, s. 249) - The Saskatchewan Court of Appeal held that the Kienapple principle did not apply - Parliament intended to punish two different acts under ss. 249 and 253 - A factual nexus existed with respect to proof of certain elements in each offence in this case - However, there were distinguishing elements respecting the legal nexus of the offences which precluded application of the Kienapple principle - Although the manner of driving could assist in proof of impairment, the offence was "driving while impaired" - This did not necessarily involve dangerous or erratic driving - Conversely dangerous driving could be demonstrated by evidence of the manner of driving without proof of impairment - See paragraphs 111 to 125.

Criminal Law - Topic 4684

Procedure - Judgments and reasons for judgment - Reasons for judgment - Sufficiency of - The accused was convicted of several offences, including dangerous driving causing death - She appealed, arguing that the trial judge failed to give adequate reasons for conviction and evidentiary rulings - She argued that favourable evidence for her from prosecution witnesses was either overlooked or disregarded or analyzed inadequately and alleged inconsistencies were ignored by the trial judge - The Saskatchewan Court of Appeal rejected the argument - The trial judge's reasons satisfied the criteria articulated by the Supreme Court of Canada in R. v. Sheppard and R. v. Braich - Those cases did not require a microscopic examination of all of the testimony in a lengthy trial - There was no need to engage in an endless recitation of all the trial testimony - A trial judge was not required to discuss every piece of evidence in detail when explaining her reasons for accepting all or only part of the testimony of a particular witness on an essential issue - The trial judge's extensive reasons provided a basis for meaningful appellate review - The accused was aware of why she was convicted on each charge - See paragraphs 19 to 44.

Criminal Law - Topic 5720.4

Punishments (sentence) - Conditional sentence - When available or appropriate - [See Criminal Law - Topic 5864.1 ].

Criminal Law - Topic 5798

Punishments (sentence) - Prohibition orders - Respecting driving of motor vehicle - [See Criminal Law - Topic 5864.1 ].

Criminal Law - Topic 5846.1

Sentencing - Considerations - Aboriginal offenders - [See Criminal Law - Topic 5864.1 ].

Criminal Law - Topic 5849.13

Sentencing - Considerations - Drinking and driving offences - [See Criminal Law - Topic 5864.1 ].

Criminal Law - Topic 5864.1

Sentence - Impaired driving causing death - The 48 year old aboriginal female accused caused a motor vehicle accident which seriously injured the other driver and killed his passenger (age 16) - The accused exhibited dangerous driving behaviour for several kilometres prior to the collision - Her impairment by alcohol was a significant cause of the collision - She fled the scene on foot to avoid liability - She was charged with several offences - Humble upbringing - Well educated - Led an exemplary life as a dedicated teacher and community activist - Disabled from teaching - Operated a farm and fishing camp with her husband - Suffered social stigma and loss of reputation from charges - Low risk to reoffend - No acceptance of responsibility - Prior conviction for impaired driving in which she tried to leave the scene - A number of prior speeding offences including one after the collision in issue - Did not live on a reserve - The trial judge considered the accused's status as an aboriginal offender but sentenced the accused to two years' imprisonment for dangerous driving causing death, dangerous driving causing bodily harm, impaired driving causing death and impaired driving causing bodily harm (concurrent), and six months' imprisonment (consecutive), for leaving the scene of a collision with the intention of avoiding liability and imposed a three year driving prohibition - The trial judge stated that, had the sentence been under two years, a conditional sentence would not have fulfilled the need for denunciation and deterrence - The Saskatchewan Court of Appeal held that the sentence was fit and not clearly unreasonable - See paragraphs 126 to 135.

Criminal Law - Topic 5865.1

Sentence - Dangerous driving causing death or bodily harm - [See Criminal Law - Topic 5864.1 ].

Criminal Law - Topic 5866

Sentence - Leaving scene of an accident - [See Criminal Law - Topic 5864.1 ].

Criminal Law - Topic 5886.1

Sentence - Impaired driving causing bodily harm - [See Criminal Law - Topic 5864.1 ].

Evidence - Topic 1527

Hearsay rule - Exceptions and exclusions - General - Where admission of hearsay necessary and evidence reliable - The accused was convicted of several offences, including dangerous driving causing death - One issue had been whether the accused was the driver - The trial judge admitted into evidence comments made by the accused's husband to his friend (LeBlanc) while LeBlanc was driving the husband home - The comments indicated that the accused was driving the vehicle that night and that the husband had not been in the vehicle at the time of the collision - The Saskatchewan Court of Appeal held that the hearsay was admissible as it was necessary and reliable - It was necessary as the husband was not a competent and compellable witness for the Crown - The statements also met the threshold reliability test - LeBlanc was the husband's longtime friend - The husband had phoned his friend at 3:30 a.m. to request a ride - The comments were made spontaneously - There were no indicators that the husband had any motive to lie to LeBlanc at the time - See paragraphs 46 to 65.

Cases Noticed:

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, refd to. [para. 22].

R. v. Braich (A.) et al., [2002] 1 S.C.R. 903; 285 N.R. 162; 164 B.C.A.C. 1; 268 W.A.C. 1, refd to. [para. 22].

R. v. Zinck (T.R.), [2003] 1 S.C.R. 41; 300 N.R. 201; 257 N.B.R.(2d) 1; 674 A.P.R. 1, refd to. [para. 22].

K.V.P. v. T.E., [2001] 2 S.C.R. 1014; 275 N.R. 52; 156 B.C.A.C. 161; 255 W.A.C. 161, refd to. [para. 22].

R. v. Wild, [1971] S.C.R. 101, refd to. [para. 39].

R. v. Evans (C.D.), [1993] 3 S.C.R. 653; 158 N.R. 278; 145 A.R. 81; 55 W.A.C. 81, refd to. [para. 50].

R. v. Starr (R.D.), [2000] 2 S.C.R. 144; 258 N.R. 250; 148 Man.R.(2d) 161; 224 W.A.C. 161, refd to. [para. 52].

R. v. Khan, [1990] 2 S.C.R. 531; 113 N.R. 53; 41 O.A.C. 353, refd to. [para. 52].

R. v. Smith (A.L.), [1992] 2 S.C.R. 915; 139 N.R. 323; 55 O.A.C. 321, refd to. [para. 52].

R. v. Hawkins (K.R.) and Morin (C.), [1996] 3 S.C.R. 1043; 204 N.R. 241; 96 O.A.C. 81, refd to. [para. 56].

R. v. Nguyen (S.V.) (2001), 281 A.R. 91; 248 W.A.C. 91; 153 C.C.C.(3d) 495 (C.A.), refd to. [para. 58].

R. v. Coffin, [1956] S.C.R. 191, refd to. [para. 71].

R. v. Stewart, [1977] 2 S.C.R. 748; 12 N.R. 201; 1 A.R. 455, refd to. [para. 71].

R. v. Buhay (M.A.), [2003] 1 S.C.R. 631; 305 N.R. 158; 177 Man.R.(2d) 72; 304 W.A.C. 72, refd to. [para. 79].

R. v. Grant (D.), [1993] 3 S.C.R. 223; 159 N.R. 161; 35 B.C.A.C. 1; 57 W.A.C. 1, refd to. [para. 80].

R. v. Yebes, [1987] 2 S.C.R. 168; 78 N.R. 351, refd to. [para. 84].

R. v. R.W., [1992] 2 S.C.R. 122; 137 N.R. 214; 54 O.A.C. 164; 74 C.C.C.(3d) 134, refd to. [para. 84].

R. v. Biniaris (J.), [2000] 1 S.C.R. 381; 252 N.R. 204; 134 B.C.A.C. 161; 219 W.A.C. 161, refd to. [para. 85].

R. v. François (L.), [1994] 2 S.C.R. 827; 169 N.R. 241; 73 O.A.C. 161, refd to. [para. 86].

R. v. Burns (R.H.), [1994] 1 S.C.R. 656; 165 N.R. 374; 42 B.C.A.C. 161; 67 W.A.C. 161, refd to. [para. 86].

R. v. Harper, [1982] 1 S.C.R. 2; 40 N.R. 255, refd to. [para. 101].

R. v. Lepage (J.P.), [1995] 1 S.C.R. 654; 178 N.R. 81; 79 O.A.C. 191, refd to. [para. 108].

R. v. Corbett, [1975] 2 S.C.R. 275; 1 N.R. 258, refd to. [para. 109].

R. v. Vezeau, [1977] 2 S.C.R. 277; 8 N.R. 235, refd to. [para. 109].

R. v. Prince, [1986] 2 S.C.R. 480; 70 N.R. 119; 45 Man.R.(2d) 93, refd to. [para. 114].

R. v. Kienapple, [1975] 1 S.C.R. 729; 1 N.R. 322, refd to. [para. 114].

R. v. Wildeman (1978), 42 C.C.C.(2d) 360 (Sask. C.A.), refd to. [para. 115].

R. v. Haubrich, [1978] 5 W.W.R. 481 (Sask. C.A.), refd to. [para. 116].

R. v. Khouri (G.W.) (1995), 131 Sask.R. 32; 95 W.A.C. 32; 97 C.C.C.(3d) 223 (C.A.), refd to. [para. 116].

R. v. Harrison (1978), 7 C.R.(3d) 32 (B.C.C.A.), refd to. [para. 118].

R. v. Andrews, [1979] B.C.J. No. 146 (C.A.), refd to. [para. 118].

R. v. Worrall, [1988] B.C.W.T.D. 3308 (C.A.), refd to. [para. 120].

R. v. Andrew (1990), 57 C.C.C.(3d) 301 (B.C.C.A.), refd to. [para. 121].

R. v. C.A.M., [1996] 1 S.C.R. 500; 194 N.R. 321; 73 B.C.A.C. 81; 120 W.A.C. 81, refd to. [para. 131].

R. v. Shropshire (M.T.), [1995] 4 S.C.R. 227; 188 N.R. 284; 65 B.C.A.C. 37; 106 W.A.C. 37, refd to. [para. 131].

R. v. Stone, [1999] 2 S.C.R. 290; 239 N.R. 201; 123 B.C.A.C. 1; 201 W.A.C. 1, refd to. [para. 133].

Authors and Works Noticed:

Ferguson, G.A. and Bouck, J.C., Canadian Criminal Jury Instructions (2003), vol. 1, 3.00-1, 4.12-1, 4.12-2 [footnote 32, para. 92].

Watt, David, Watt's Manual of Criminal Evidence 2004 (2004), p. 326 [para. 51].

Watt's Model Jury Instruction, generally [para. 91].

Counsel:

Glen Luther and Silas E. Halyk, Q.C., for Galloway;

Beverly L. Klatt, for the Crown.

These appeals were heard on June 23-24, 2004, by Bayda, C.J.S., Tallis and Jackson, JJ.A., of the Saskatchewan Court of Appeal. The following decision was delivered by the court on August 4, 2004.

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35 practice notes
  • R. v. Littlecrow (L.D.), 2011 SKQB 393
    • Canada
    • Saskatchewan Court of Queen's Bench of Saskatchewan (Canada)
    • October 24, 2011
    ...(2003), 239 Sask.R. 244; 2003 SKQB 450, refd to. [para. 19]. R. v. Galloway (R.) (2004), 247 Sask.R. 107; 2004 SKQB 130, affd. (2004), 249 Sask.R. 262; 325 W.A.C. 262; 2004 SKCA 106, refd to. [para. R. v. Wahobin (R.C.) (2002), 224 Sask.R. 227; 2002 SKPC 53, refd to. [para. 19]. R. v. Robbi......
  • Digest: R v Scholpp, 2018 SKQB 252
    • Canada
    • Saskatchewan Law Society Case Digests
    • September 18, 2019
    ...96, 290 DLR (4th) 17, [2008] 5 WWR 387,425 AR 79, 87 Alta LR (4th) 203, 228 CCC (3d) 385, 54 CR (6th) 197, 168 CRR (2d) 34 R v Galloway, 2004 SKCA 106, [2005] 1 WWR 54, 249 Sask R 262, 187 CCC (3d) 305, 3 MVR (5th) 1 R v Gejdos, 2017 ABCA 227, 351 CCC (3d) 460 R v Gladue, [1999] 1 SCR 688, ......
  • R. v. Denny (L.J.), 2015 SKQB 36
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    • Saskatchewan Court of Queen's Bench of Saskatchewan (Canada)
    • February 5, 2015
    ...[para. 25]. R. v. Ramage (R.) (2010), 265 O.A.C. 158; 257 C.C.C.(3d) 261; 2010 ONCA 488, refd to. [para. 26]. R. v. Galloway (R.) (2004), 249 Sask.R. 262; 325 W.A.C. 262; 2004 SKCA 106, refd to. [para. 26]. R. v. Kienapple, [1975] 1 S.C.R. 729; 1 N.R. 322, refd to. [para. 26]. R. v. Haubric......
  • R. v. Rose's Well Services Ltd. et al., 2009 ABQB 1
    • Canada
    • Court of Queen's Bench of Alberta (Canada)
    • January 2, 2009
    ...refd to. [para. 189]. R. v. G.K.M. (2004), 190 Man.R.(2d) 17; 335 W.A.C. 17; 2004 MBCA 96, refd to. [para. 191]. R. v. Galloway (R.) (2004), 249 Sask.R. 262; 325 W.A.C. 262; 2004 SKCA 106, refd to. [para. 192]. R. v. Zinck (T.R.), [2003] 1 S.C.R. 41; 300 N.R. 201; 257 N.B.R.(2d) 1; 674 A.P.......
  • Request a trial to view additional results
21 cases
  • R. v. Littlecrow (L.D.), 2011 SKQB 393
    • Canada
    • Saskatchewan Court of Queen's Bench of Saskatchewan (Canada)
    • October 24, 2011
    ...(2003), 239 Sask.R. 244; 2003 SKQB 450, refd to. [para. 19]. R. v. Galloway (R.) (2004), 247 Sask.R. 107; 2004 SKQB 130, affd. (2004), 249 Sask.R. 262; 325 W.A.C. 262; 2004 SKCA 106, refd to. [para. R. v. Wahobin (R.C.) (2002), 224 Sask.R. 227; 2002 SKPC 53, refd to. [para. 19]. R. v. Robbi......
  • R. v. Denny (L.J.), 2015 SKQB 36
    • Canada
    • Saskatchewan Court of Queen's Bench of Saskatchewan (Canada)
    • February 5, 2015
    ...[para. 25]. R. v. Ramage (R.) (2010), 265 O.A.C. 158; 257 C.C.C.(3d) 261; 2010 ONCA 488, refd to. [para. 26]. R. v. Galloway (R.) (2004), 249 Sask.R. 262; 325 W.A.C. 262; 2004 SKCA 106, refd to. [para. 26]. R. v. Kienapple, [1975] 1 S.C.R. 729; 1 N.R. 322, refd to. [para. 26]. R. v. Haubric......
  • R. v. Rose's Well Services Ltd. et al., 2009 ABQB 1
    • Canada
    • Court of Queen's Bench of Alberta (Canada)
    • January 2, 2009
    ...refd to. [para. 189]. R. v. G.K.M. (2004), 190 Man.R.(2d) 17; 335 W.A.C. 17; 2004 MBCA 96, refd to. [para. 191]. R. v. Galloway (R.) (2004), 249 Sask.R. 262; 325 W.A.C. 262; 2004 SKCA 106, refd to. [para. 192]. R. v. Zinck (T.R.), [2003] 1 S.C.R. 41; 300 N.R. 201; 257 N.B.R.(2d) 1; 674 A.P.......
  • R. v. Cappo (F.A.), 2005 SKCA 134
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    • Saskatchewan Court of Appeal (Saskatchewan)
    • October 20, 2005
    ...refd to. [para. 12]. R. v. Keller (A.A.) (1997), 158 Sask.R. 181; 153 W.A.C. 181 (C.A.), refd to. [para. 12]. R. v. Galloway (R.) (2004), 249 Sask.R. 262; 325 W.A.C. 262; 187 C.C.C.(3d) 305 (C.A.), refd to. [para. R. v. Blackwell (D.L.) (1999), 180 Sask.R. 102; 205 W.A.C. 102 (C.A.), refd t......
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10 books & journal articles
  • Digest: R v Scholpp, 2018 SKQB 252
    • Canada
    • Saskatchewan Law Society Case Digests
    • September 18, 2019
    ...96, 290 DLR (4th) 17, [2008] 5 WWR 387,425 AR 79, 87 Alta LR (4th) 203, 228 CCC (3d) 385, 54 CR (6th) 197, 168 CRR (2d) 34 R v Galloway, 2004 SKCA 106, [2005] 1 WWR 54, 249 Sask R 262, 187 CCC (3d) 305, 3 MVR (5th) 1 R v Gejdos, 2017 ABCA 227, 351 CCC (3d) 460 R v Gladue, [1999] 1 SCR 688, ......
  • Request a trial to view additional results

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