R. v. Graham (C.E.),

• Judge: Veit, J.
• Neutral Citation: 2009 ABQB 100
• Citation: (2009), 470 A.R. 156 (QB),2009 ABQB 100,470 AR 156,9 Alta LR (5th) 295,[2009] CarswellAlta 239,81 MVR (5th) 242,(2009), 470 AR 156 (QB),470 A.R. 156
• Date: 12 February 2009
• Court: Court of Queen's Bench of Alberta (Canada)

R. v. Graham (C.E.) (2009), 470 A.R. 156 (QB)

MLB headnote and full text

Temp. Cite: [2009] A.R. TBEd. MR.017

Her Majesty the Queen (applicant) v. Chris Edward Graham (respondent)

(080637168S1; 2009 ABQB 100)

Indexed As: R. v. Graham (C.E.)

Alberta Court of Queen's Bench

Judicial District of Edmonton

Veit, J.

February 23, 2009.

Summary:

Graham was acquitted on charges of impaired driving and driving while having an excessive blood-alcohol level. The Crown appealed.

The Alberta Court of Queen's Bench allowed the appeal. The acquittal was set aside and the matter was remitted to the summary conviction court to continue the trial.

Criminal Law - Topic 1372

Offences against person and reputation - Motor vehicles - Impaired driving - Breathalyzer or blood sample - Demand - Reasonable grounds - Graham was charged with driving while having an excessive blood-alcohol level - He sought exclusion of the certificate of analyses on the basis that the officer lacked reasonable and probable grounds to make the breath sample demand - Graham asserted that, where reasonable and probable grounds for a breath sample demand depended on a "fail" reading on an approved screening device (ASD), the Crown had first to prove beyond a reasonable doubt that the device used was an ASD, before the court applied the test for determining reasonable and probable grounds for the breath sample demand - The trial judge proceeded on that basis, found that the Crown had not proven that an ASD was used, excluded the certificate and acquitted Graham - The Alberta Court of Queen's Bench allowed the Crown's appeal - In asking at the outset whether the Crown had proven beyond a reasonable doubt that an ASD was used, the judge focussed on the wrong issue - The focus should have been on whether the officer had reasonable and probable grounds to make the breath sample demand - This had to be proven beyond a reasonable doubt - Where an officer relied on the results of an ASD for reasonable and probable grounds to make a breath sample demand, the officer had to have a subjective belief, reasonably held, that the device used was an ASD - If the officer provided subjective evidence that an ASD was used, then, in the absence of credible evidence to the contrary, the test was met - The acquittal was set aside - Under s. 834(1)(a) of the Criminal Code, the court had the jurisdiction to remit the matter to the trial judge for continuation of the trial - Because some evidence had already been taken and there were no contraindications, such as credibility findings, this was the appropriate disposition - See paragraphs 24 to 46.

Criminal Law - Topic 1386.4

Offences against person and reputation - Motor vehicles - Impaired driving - Roadside screening test - Evidence and proof (incl. whether device approved, calibration records, etc.) - [See Criminal Law - Topic 1372 ].

Criminal Law - Topic 7544

Summary conviction proceedings - Appeal on record to "Appeal Court" - Scope of appeal (incl. powers of judge) - [See Criminal Law - Topic 1372 ].

Cases Noticed:

R. v. Bernshaw (N.) (1995), 176 N.R. 81; 53 B.C.A.C. 1; 87 W.A.C. 1; 1994 CarswellBC 3038 (S.C.C.), refd to. [para. 8].

R. v. Gundy (T.) (2008), 235 O.A.C. 236; 2008 CarswellOnt 2091 (C.A.), appld. [para. 8].

R. v. Yurechuk (1982), 42 A.R. 176; 1982 CarswellAlta 224 (C.A.), refd to. [para. 8].

R. v. Meade, 1990 CarswellAlta 219 (C.A.), refd to. [para. 8].

R. v. Stauch (A.D.) (2007), 414 A.R. 34; 2007 CarswellAlta 161 (Q.B.), refd to. [para. 8].

R. v. Kosa, 1992 CarswellOnt 56 (C.A.), refd to. [para. 8].

R. v. Musurichan (1990), 107 A.R. 102; 1990 CarswellAlta 579 (C.A.), refd to. [para. 8].

R. v. Topaltsis (A.) (2006), 214 O.A.C. 115; 2006 CarswellOnt 4790 (C.A.), refd to. [para. 8].

R. v. Collins (1987), 74 N.R. 276; 1987 CarswellBC 94 (S.C.C.), refd to. [para. 8].

R. v. Haas (T.) (2005), 201 O.A.C. 52; 2005 CarswellOnt 3316 (C.A.), refd to. [para. 8].

R. v. Arsenault (D.J.) (2005), 295 N.B.R.(2d) 123; 766 A.P.R. 123; 2005 CarswellNB 716 (C.A.), refd to. [para. 8].

R. v. Leggett (M.), [2008] O.T.C. Uned. J02; 2008 CarswellOnt 5406 (Sup. Ct.), refd to. [para. 8].

R. v. Woods (J.C.), [2005] 2 S.C.R. 205; 336 N.R. 1; 195 Man.R.(2d) 131; 351 W.A.C. 131; 2005 SCC 42, refd to. [para. 9].

R. v. Schott (A.G.), [2008] A.R. Uned. 520; 2008 ABPC 82, refd to. [para. 9].

R. v. Brown (R.) (1998), 64 O.T.C. 12 (Gen. Div.), refd to. [para. 9].

R. v. Buchan (R.), [2006] O.T.C. 690 (Sup. Ct.), refd to. [para. 9].

R. v. J.J.A. (2005), 383 A.R. 179; 2005 ABPC 168, refd to. [para. 9].

R. v. Dhillon (G.S.) (2006), 394 A.R. 269; 2006 ABQB 109, refd to. [para. 9].

New Brunswick (Board of Management) v. Dunsmuir (2008), 372 N.R. 1; 329 N.B.R.(2d) 1; 844 A.P.R. 1; 2008 SCC 9, refd to. [para. 10].

R. v. Logan, [2006] O.J. No. 3911 (C.J.), refd to. [para. 11].

R. v. Wilcox (J.A.) et al. (2001), 192 N.S.R.(2d) 159; 599 A.P.R. 159; 152 C.C.C.(3d) 157 (C.A.), folld. [para. 12].

Counsel:

Jason Russell (Crown Prosecutors Office), for the applicant/Crown;

Bonnie Parker (Knisely Shipanoff LLP), for the respondent.

This appeal was heard on February 12, 2009, by Veit, J., of the Alberta Court of Queen's Bench, Judicial District of Edmonton, who delivered the following memorandum of decision on February 23, 2009.