R. v. Gleeson (T.D.), 2012 ABQB 675

• Judge: Millar, J.
• Court: Court of Queen's Bench of Alberta (Canada)
• Case Date: September 24, 2012
• Citations: 2012 ABQB 675;(2012), 554 A.R. 23 (QB)

R. v. Gleeson (T.D.) (2012), 554 A.R. 23 (QB)

MLB headnote and full text

Temp. Cite: [2012] A.R. TBEd. NO.102

Her Majesty the Queen (respondent/Crown) v. Teresa Dawn Gleeson (appellant/accused)

(110030566P1; 110030566S1; 2012 ABQB 675)

Indexed As: R. v. Gleeson (T.D.)

Alberta Court of Queen's Bench

Judicial District of Calgary

Millar, J.

October 31, 2012.

Summary:

The accused was convicted of one count of operating a motor vehicle with a blood-alcohol concentration in excess of 80 mg of alcohol in 100 ml of blood, contrary to s. 253(1)(b) of the Criminal Code. She appealed the conviction.

The Alberta Court of Queen's Bench dismissed the appeal.

Criminal Law - Topic 1374

Motor vehicles - Impaired driving - Breathalyzer or blood sample - Evidence and certificate evidence - At 2:11 a.m., police officers (Letkeman and Hutchinson) stopped the accused's vehicle after they noticed erratic driving - Letkeman noticed indicia of impairment and made a demand for a roadside breath sample - The accused registered a fail on an approved screening device - At 2:28 a.m., Letkeman Chartered and cautioned the accused and made a breath demand - They arrived at the police detachment at 2:38 a.m. - The accused said she felt sick and asked to use the washroom - The accused was taken to an interview room, and was instructed on her rights to counsel, which she waived - Letkeman then took the accused to the breathalyzer room - The accused blew unsuccessfully - The breath technician asked Letkeman to return the accused to the interview room and wait to be re-called - In the interview room, Letkeman engaged in conversation with the accused, monitoring for signs of impairment - The accused was called back and successfully provided two samples, at 3:19 a.m. and 3:41 a.m. - At 4:34 a.m., the accused was served with a certificate of analysis - The accused was convicted of one count of operating a motor vehicle with a blood-alcohol concentration in excess of 80 mg of alcohol in 100 ml of blood, contrary to s. 253(1)(b) of the Criminal Code - She appealed the conviction, asserting that the trial judge erred in interpreting the standard for "as soon as practicable" under s. 258(1)(c)(ii) of the Code - The accused submitted that the law required the trial judge to consider whether the delay was "reasonable and necessary", and that the trial judge failed to consider whether the delay was "necessary" - The Alberta Court of Queen's Bench dismissed the appeal - The trial judge correctly assessed the meaning of the phrase "as soon as practicable" based on the following evidence: the trial judge read s. 258(1)(c)(ii) of the Code into the record; discussed the identity presumption and the onus borne by the Crown; relied on the leading Court of Appeal decisions; and read the law he relied on from these cases into the record - See paragraphs 24 to 26.

Criminal Law - Topic 1374

Motor vehicles - Impaired driving - Breathalyzer or blood sample - Evidence and certificate evidence - At 2:11 a.m., police officers (Letkeman and Hutchinson) stopped the accused's vehicle after they noticed erratic driving - Letkeman noticed indicia of impairment and made a demand for a roadside breath sample - The accused registered a fail on an approved screening device - At 2:28 a.m., Letkeman Chartered and cautioned the accused and made a breath demand - They arrived at the police detachment at 2:38 a.m. - The accused said she felt sick and asked to use the washroom - The accused was taken to an interview room, and was instructed on her rights to counsel, which she waived - Letkeman then took the accused to the breathalyzer room - The accused blew unsuccessfully - The breath technician asked Letkeman to return the accused to the interview room and wait to be re-called - In the interview room, Letkeman engaged in conversation with the accused, monitoring for signs of impairment - The accused was called back and successfully provided two samples, at 3:19 a.m. and 3:41 a.m. - At 4:34 a.m., the accused was served with a certificate of analysis - The accused was convicted of one count of operating a motor vehicle with a blood-alcohol concentration in excess of 80 mg of alcohol in 100 ml of blood, contrary to s. 253(1)(b) of the Criminal Code - She appealed the conviction, asserting that the trial judge erred in finding that the breach samples were taken "as soon as practicable" under s. 258(1)(c)(ii) of the Code - The Alberta Court of Queen's Bench dismissed the appeal - The trial judge found it took 44 minutes from when the time the accused arrived at the detachment to when the accused's first breath sample was taken - There was a general explanation, but not specific times, for the events that occurred within that period - A 44 minute delay was on the higher end of delays that courts had accepted as meeting the "as soon as practicable" test - However, there was evidence that everyone involved had acted reasonably - There was no error - See paragraphs 27 to 34.

Criminal Law - Topic 1374

Motor vehicles - Impaired driving - Breathalyzer or blood sample - Evidence and certificate evidence - At 2:11 a.m., police officers (Letkeman and Hutchinson) stopped the accused's vehicle after they noticed erratic driving - Letkeman noticed indicia of impairment and made a demand for a roadside breath sample - The accused registered a fail on an approved screening device - At 2:28 a.m., Letkeman Chartered and cautioned the accused and made a breath demand - They arrived at the police detachment at 2:38 a.m. - The accused said she felt sick and asked to use the washroom - The accused was taken to an interview room, and was instructed on her rights to counsel, which she waived - Letkeman then took the accused to the breathalyzer room - The accused blew unsuccessfully - The breath technician asked Letkeman to return the accused to the interview room and wait to be re-called - In the interview room, Letkeman engaged in conversation with the accused, monitoring for signs of impairment - The accused was called back and successfully provided two samples, at 3:19 a.m. and 3:41 a.m. - At 4:34 a.m., the accused was served with a certificate of analysis - The accused was convicted of one count of operating a motor vehicle with a blood-alcohol concentration in excess of 80 mg of alcohol in 100 ml of blood, contrary to s. 253(1)(b) of the Criminal Code - She appealed the conviction, asserting that the trial judge erred in admitting the certificate evidence - The Alberta Court of Queen's Bench dismissed the appeal - The accused consented to the admission of the certificate of analysis - The accused did not argue that the preconditions for admitting the certificate of analysis were not met until final submissions, and provided little guidance to the trial judge regarding her claim - There was no error - See paragraphs 35 to 41.

Criminal Law - Topic 1374

Motor vehicles - Impaired driving - Breathalyzer or blood sample - Evidence and certificate evidence - At 2:11 a.m., police officers (Letkeman and Hutchinson) stopped the accused's vehicle after they noticed erratic driving - Letkeman noticed indicia of impairment and made a demand for a roadside breath sample - The accused registered a fail on an approved screening device - At 2:28 a.m., Letkeman Chartered and cautioned the accused and made a breath demand - They arrived at the police detachment at 2:38 a.m. - The accused said she felt sick and asked to use the washroom - The accused was taken to an interview room, and was instructed on her rights to counsel, which she waived - Letkeman then took the accused to the breathalyzer room - The accused blew unsuccessfully - The breath technician asked Letkeman to return the accused to the interview room and wait to be re-called - In the interview room, Letkeman engaged in conversation with the accused, monitoring for signs of impairment - The accused was called back and successfully provided two samples, at 3:19 a.m. and 3:41 a.m. - At 4:34 a.m., the accused was served with a certificate of analysis - The accused was convicted of one count of operating a motor vehicle with a blood-alcohol concentration in excess of 80 mg of alcohol in 100 ml of blood, contrary to s. 253(1)(b) of the Criminal Code - She appealed the conviction, asserting that the trial judge erred in admitting the certificate evidence for the purposes of s. 258(1) of the Code - The Alberta Court of Queen's Bench dismissed the appeal - There was no error - The two statutory pre-conditions were satisfied - See paragraphs 48 to 53.

Criminal Law - Topic 1375

Offences against person and reputation - Motor vehicles - Impaired driving - Breathalyzer or blood sample - Demand for - At 2:11 a.m., police officers (Letkeman and Hutchinson) stopped the accused's vehicle after they noticed erratic driving - Letkeman noticed indicia of impairment and made a demand for a roadside breath sample - The accused registered a fail on an approved screening device - At 2:28 a.m., Letkeman Chartered and cautioned the accused and made a breath demand - They arrived at the police detachment at 2:38 a.m. - The accused said she felt sick and asked to use the washroom - The accused was taken to an interview room, and was instructed on her rights to counsel, which she waived - Letkeman then took the accused to the breathalyzer room - The accused blew unsuccessfully - The breath technician asked Letkeman to return the accused to the interview room and wait to be re-called - In the interview room, Letkeman engaged in conversation with the accused, monitoring for signs of impairment - The accused was called back and successfully provided two samples, at 3:19 a.m. and 3:41 a.m. - At 4:34 a.m., the accused was served with a certificate of analysis - The accused was convicted of one count of operating a motor vehicle with a blood-alcohol concentration in excess of 80 mg of alcohol in 100 ml of blood, contrary to s. 253(1)(b) of the Criminal Code - She appealed the conviction, asserting that the trial judge erred in finding that a lawful breath demand was read to the accused under s. 254(3) of the Code - The Alberta Court of Queen's Bench dismissed the appeal - The trial judge did not make a palpable and overriding error in finding that a valid breath demand was made pursuant to s. 254(3) of the Code - The law on breath demands gave the trial judge a great deal of latitude in drawing an inference whether a breath demand was sufficient - Even absent the evidence of the certificate of analysis, the facts in this case fell within the boundaries of an acceptable factual inference - See paragraphs 42 to 47.

Cases Noticed:

R. v. Van der Veen (1988), 89 A.R. 4; 61 Alta. L.R.(2d) 175 (C.A.), refd to. [para. 12].

R. v. Vanderbruggen (M.) (2006), 208 O.A.C. 379; 206 C.C.C.(3d) 489 (C.A.), refd to. [para. 12].

Housen v. Nikolaisen et al., [2002] 2 S.C.R. 235; 286 N.R. 1; 219 Sask.R. 1; 272 W.A.C. 1; 2002 SCC 33, refd to. [para. 18].

R. v. Evans (C.M.) (2012), 538 A.R. 280; 2012 ABQB 267, refd to. [para. 19].

R. v. Farrell (L.A.) (2012), 540 A.R. 34; 2012 ABQB 274, refd to. [para. 23].

R. v. Mailey (P.O.) (2012), 537 A.R. 263; 2012 ABQB 138, refd to. [para. 25].

R. v. McCoy (1990), 86 Sask.R. 204 (Q.B.), refd to. [para. 28].

R. v. Schouten (A.), [2002] O.T.C. 1041; 56 W.C.B.(2d) 444 (Sup. Ct.), refd to. [para. 28].

R. v. Burton (1988), 89 A.R. 60; 5 W.C.B.(2d) 279 (Q.B.), refd to. [para. 28].

R. v. Goss (M.J.), [2008] A.R. Uned. 126; 2008 ABPC 10, refd to. [para. 28].

R. v. Robinson (D.J.), [2010] A.R. Uned. 619; 2010 ABPC 272, refd to. [para. 28].

R. v. Mario (M.J.), [2010] A.R. Uned. 812; 36 Alta. L.R.(5th) 110; 2010 ABPC 305, refd to. [para. 28].

R. v. Jonasson (H.M.), [1997] A.R. Uned. 161; 35 W.C.B.(2d) 60; 1997 CarswellAlta 647 (Prov. Ct.), refd to. [para. 28].

R. v. Lee (2008), 76 W.C.B.(2d) 764; 2008 ONCJ 120, refd to. [para. 38].

R. v. McNulty, [1991] O.J. No. 2074 (C.A.), refd to. [para. 39].

R. v. Shadoff, [1993] O.J. No. 534 (Gen. Div.), refd to. [para. 39].

R. v. Keddy (T.D.), [2010] A.R. Uned. 638; 2010 ABPC 209, refd to. [para. 44].

R. v. Fox (K.C.), [2006] A.R. Uned. 256 (Q.B.), refd to. [para. 45].

R. v. Jackson (S.J.) (2005), 381 A.R. 294; 2005 ABQB 268, refd to. [para. 45].

R. v. Hruby (1980), 19 A.R. 230; 11 Alta. L.R.(2d) 247 (C.A.), refd to. [para. 50].

Authors and Works Noticed:

Paciocco, David M., and Stuesser, Lee, The Law of Evidence (5th Ed. 2008), p. 22 [para. 21].

Counsel:

Ian D. McKay (Fagan & McKay), for the appellant/accused;

Andrew Barg (Alberta Justice), for the respondent/Crown.

This appeal was heard on September 24, 2012, by Millar, J., of the Alberta Court of Queen's Bench, Judicial District of Calgary, who delivered the following reasons for judgment on October 31, 2012.