R. v. Gibson, (1992) 100 Sask.R. 88 (CA)

• Judge: Bayda, C.J.S., Cameron and Wakeling, JJ.A.
• Court: Court of Appeal (Saskatchewan)
• Case Date: April 22, 1992
• Jurisdiction: Saskatchewan
• Citations: (1992), 100 Sask.R. 88 (CA);1992 CanLII 2750 (SK CA);13 CR (4th) 165;72 CCC (3d) 28;[1992] SJ No 233 (QL);100 Sask R 88;18 WAC 88;36 MVR (2d) 144

R. v. Gibson (1992), 100 Sask.R. 88 (CA);

    18 W.A.C. 88

MLB headnote and full text

Kirk William Gibson (appellant) v. Her Majesty The Queen (respondent)

(File No. 5360)

Indexed As: R. v. Gibson

Saskatchewan Court of Appeal

Bayda, C.J.S., Cameron and Wakeling, JJ.A.

April 22, 1992.

Summary:

The accused was convicted of driving a motor vehicle while having an excessive blood-alcohol content. The accused appealed.

The Saskatchewan Court of Queen's Bench dismissed the appeal. The accused appealed. The issue was whether evidence of the amount of alcohol consumption by the accused and expert testimony on rates of absorption and elimination of alcohol consti­tuted "evidence to the contrary" under s. 258(1)(c) of the Criminal Code.

The Saskatchewan Court of Appeal, Wakeling, J.A., dissenting, allowed the appeal and ordered a new trial. The trial judge erred in failing to find the evidence constituted "evidence to the contrary".

Criminal Law - Topic 1374

Motor vehicles - Impaired driving - Breathalyzer - Certificate evidence - Evidence to the contrary - An accused stopped at 10:40 had blood-alcohol levels of .10 at 11:20 and 11:40 - An expert in alcohol absorption and elimination testified that the accused's blood-alcohol level at 10:40 would have been between .058 and .107, with an average of .079 if the accused exhibited the average rate of absorption and elimination - The Saskatchewan Court of Appeal held that the evidence constituted some evidence that the accused's blood-alcohol level could have been below .08 at the time of driving - Accordingly, there was "evidence to the contrary" under s. 258(1) of the Criminal Code, precluding application of the statutory presumption - The court ordered a new trial, where the trial judge failed to consider all the evidence to determine whether he had a reasonable doubt respecting the accused's guilt.

Cases Noticed:

R. v. Davis (1973), 14 C.C.C.(2d) 513 (B.C.C.A.), refd to. [para. 15].

R. v. Taylor (1978), 12 A.R. 435; 44 C.C.C.(2d) 222 (C.A.), refd to. [para. 17].

R. v. Moreau, [1979] 1 S.C.R. 261; 23 N.R. 541, refd to. [para. 19].

R. v. Crosthwait, [1980] 1 S.C.R. 1089; 31 N.R. 603, refd to. [para. 27].

R. v. Parent (1982), 17 Sask.R. 361, refd to. [para. 27].

R. v. Goddu (1984), 34 Sask.R. 251; 28 M.V.R. 117, refd to. [para. 27].

R. v. Batley (1985), 39 Sask.R. 259; 32 M.V.R. 257; 19 C.C.C.(3d) 382, refd to. [para. 27].

R. v. Proudlock, [1979] 1 S.C.R. 525; 24 N.R. 199, refd to. [para. 32].

R. v. Dubois (1990), 37 Q.A.C. 75; 25 M.V.R.(2d) 21 (C.A.), refd to. [para. 34].

R. v. Gaetz (1972), 8 C.C.C.(2d) 3, refd to. [para. 52].

R. v. Nordmarken (1987), 51 Sask.R. 33, refd to. [para. 55].

Statutes Noticed:

Criminal Code, R.S.C. 1985, c. C-46, sect. 253(b) [para. 1]; sect. 254 [para. 3]; sect. 255(1) [para. 39]; sect. 258(1)(c) [para. 2].

Counsel:

J. Jodouin, for the appellant;

G. Mitchell, for the respondent.

This appeal was heard on November 6, 1991, before Bayda, C.J.S., Cameron and Wakeling, JJ.A., of the Saskatchewan Court of Appeal.

The judgment of the Court of Appeal was delivered on April 22, 1992, and the follow­ing opinions were filed:

Bayda, C.J.S. (Cameron, J.A., concur­ring) - see paragraphs 1 to 37;

Wakeling, J.A., dissenting - see para­graphs 38 to 61.