R. v. Gunn (G.A.), (2010) 346 Sask.R. 288 (CA)

• Judge: Vancise, Jackson and Richards, JJ.A.
• Court: Court of Appeal (Saskatchewan)
• Case Date: September 08, 2009
• Jurisdiction: Saskatchewan
• Citations: (2010), 346 Sask.R. 288 (CA);2010 SKCA 44

R. v. Gunn (G.A.) (2010), 346 Sask.R. 288 (CA);

    477 W.A.C. 288

MLB headnote and full text

Temp. Cite: [2010] Sask.R. TBEd. MR.075

Her Majesty the Queen (appellant) v. Gregory A. Gunn (respondent)

(No. 1643; 2010 SKCA 44)

Indexed As: R. v. Gunn (G.A.)

Saskatchewan Court of Appeal

Vancise, Jackson and Richards, JJ.A.

March 26, 2010.

Summary:

The accused was convicted of driving while having an excessive blood-alcohol level. He appealed.

The Saskatchewan Court of Queen's Bench, in a decision reported at (2009), 329 Sask.R. 106; 2009 SKQB 57, allowed the appeal. The conviction was set aside and an acquittal was entered. The Crown appealed.

The Saskatchewan Court of Appeal allowed the appeal. The acquittal was set aside and the conviction was restored.

Courts - Topic 555

Judges - Powers - To intervene in examination of witnesses - The accused was convicted of driving while having an excessive blood-alcohol level - He appealed, asserting, inter alia, that the trial judge had erred in law by inappropriately asking questions of the accused - Just as the accused was leaving the witness stand, the trial judge asked him twice if he had provided breath samples when requested to do so - The accused asserted that the questions made it appear that the judge was favouring the Crown - The summary conviction appeal court rejected this ground of appeal - There was no reason to be concerned about the innocent questioning by the trial judge - It was obvious that he was trying only to refresh his memory, not trying to assist the Crown to prove its case - If the judge had fallen into any error, there was certainly no miscarriage of justice - The Saskatchewan Court of Appeal agreed - A trial judge could only be taken to be assisting the Crown on an issue if it would have actually assisted - Where the trial judge's action did not affect the result, the question and answer became non-issues - See paragraphs 58 to 60.

Criminal Law - Topic 1362

Motor vehicles - Impaired driving - Evidence and proof - At issue was whether, once the presumption of accuracy of the breath analysis certificate was rejected on the basis of evidence to the contrary and the accused took the stand, the accused's response to police questioning under s. 209.1 of the Traffic Safety Act as to alcohol consumption could be used to test the accused's credibility - The accused asserted that his statement as to alcohol consumption could be used only for the purpose of determining whether there were reasonable grounds to demand a breath test - The Saskatchewan Court of Appeal held that a trial judge could consider statements made at the roadside, in response to police questioning, for the purpose of assessing the credibility of the accused in determining whether the offence had been proven - In R. v. Fox (M.J.) (2003 Sask. C.A.), the court had concluded that the result of a roadside screening test could be used to assess the accused's testimony that he or she had consumed little alcohol - Both the results of the roadside testing device and the responses to police questioning were compelled by legislation - No distinction could be drawn between the roadside screening device results and the responses to police questioning authorized under s. 209.1 - See paragraphs 43 to 57.

Criminal Law - Topic 1374

Motor vehicles - Impaired driving - Breathalyzer or blood sample - Evidence and certificate evidence (incl. evidence tending to show) - The accused was convicted of driving while having an excessive blood-alcohol level - At issue on his appeal was whether a certificate of analysis under s. 258(1)(c) of the Criminal Code that did not indicate the starting time for the taking of the second breath sample could give rise to a reasonable doubt as to whether at least 15 minutes had elapsed between the taking of the samples - The summary conviction appeal court allowed the appeal, finding that the certificate was inadmissible, and set aside the conviction - The Saskatchewan Court of Appeal allowed the Crown's appeal - A certificate which stated that samples were taken at certain times satisfied the requirements of s. 258(1)(c)(ii) without the necessity of stating the start and end times of when the accused began and finished providing a breath sample - A trial judge could rely on such a certificate in the absence of proof to the contrary - Here, the trial judge was faced with a certificate which stated that samples were taken at 19:38 hours and 20:00 hours - The simple subtraction of the first time from the second allowed him to reach the conclusion that at least 15 minutes had elapsed between the taking of the samples - See paragraphs 19 to 42.

Criminal Law - Topic 1376

Motor vehicles - Impaired driving - Breathalyzer or blood sample - Proof of blood-alcohol content - [See Criminal Law - Topic 1374 ].

Criminal Law - Topic 4300

Procedure - Trial judge - Duties and functions of - Respecting credibility of witnesses (incl. accused) - [See Criminal Law - Topic 1362 ].

Criminal Law - Topic 4574

Procedure - Conduct of trial - Interventions by trial judge - [See Courts - Topic 555 ].

Cases Noticed:

R. v. Perry, [1977] B.C.J. No. 543 (S.C.), affd. (1978), 33 N.R. 108; 41 C.C.C.(2d) 182 (B.C.C.A.), affd. [1980] 1 S.C.R. 1104; 33 N.R. 106, folld. [para. 21].

R. v. Scott (1984), 36 Sask.R. 216; 16 C.C.C.(3d) 511 (C.A.), refd to. [para. 21].

R. v. Feiffer (1984), 35 Sask.R. 196 (Q.B.), affd. [1985] S.J. No. 334 (C.A.), leave to appeal refused [1985] 1 S.C.R. viii; 60 N.R. 240; 41 Sask.R. 160, refd to. [para. 21].

R. v. Davis, [1978] 1 W.W.R. 381; 35 C.C.C.(2d) 224 (Sask. C.A.), refd to. [para. 25].

R. v. Taylor (1983), 7 C.C.C.(3d) 293 (Ont. C.A.), leave to appeal denied [1983] 2 S.C.R. xi; 52 N.R. 236; 1 O.A.C. 160 (S.C.C.), refd to. [para. 30].

R. v. Kornak (1984), 51 A.R. 93; 12 C.C.C.(3d) 182 (C.A.), refd to. [para. 32].

R. v. Moore (1984), 13 C.C.C.(3d) 281 (B.C.C.A.), refd to. [para. 32].

R. v. DeCoste (1984), 65 N.S.R.(2d) 61; 147 A.P.R. 61; 15 C.C.C.(3d) 289 (C.A.), refd to. [para. 32].

R. v. Doucet (1984), 66 N.S.R.(2d) 332; 152 A.P.R. 332 (C.A.), refd to. [para. 32].

R. v. Presedo (1985), 37 M.V.R. 134 (Que. C.A.), refd to. [para. 32].

R. v. Elliott (D.W.) (2005), 268 Sask.R. 317; 2005 SKQB 376, disagreed with [para. 35].

R. v. Eggen (1988), 66 Sask.R. 124; 42 C.C.C.(3d) 94 (C.A.), refd to. [para. 35].

R. v. Hardy (T.) (2008), 321 Sask.R. 156; 2008 SKPC 132, disagreed with [para. 41].

R. v. Eberle (J.P.) (2009), 330 Sask.R. 100; 2009 SKPC 37, agreed with [para. 41].

R. v. Orbanski (C.); R. v. Elias (D.J.), [2005] 2 S.C.R. 3; 335 N.R. 342; 195 Man.R.(2d) 161; 351 W.A.C. 161; 2005 SCC 37, refd to. [para. 44].

R. v. Boucher (E.), [2005] 3 S.C.R. 499; 342 N.R. 42; 2005 SCC 72, refd to. [para. 44].

R. v. Fox (M.J.), [2004] 7 W.W.R. 477; 238 Sask.R. 271; 305 W.A.C. 271; 2003 SKCA 79, refd to. [para. 45].

R. v. Beston (S.C.) (2006), 289 Sask.R. 165; 382 W.A.C. 165; 214 C.C.C.(3d) 509; 2006 SKCA 131, refd to. [para. 45].

R. v. Doell (Q.), [2007] 9 W.W.R. 51; 293 Sask.R. 262; 397 W.A.C. 262; 2007 SKCA 61, refd to. [para. 45]

R. v. Kaminski (1992), 100 Sask.R. 192; 18 W.A.C. 192 (C.A.), refd to. [para. 46].

R. v. Gilbert (1994), 74 O.A.C. 56; 92 C.C.C.(3d) 266 (C.A.), refd to. [para. 46].

R. v. Coutts (D.) (1999), 121 O.A.C. 342; 136 C.C.C.(3d) 225 (C.A.), refd to. [para. 46].

R. v. Milne (R.S.) (1996), 90 O.A.C. 348; 107 C.C.C.(3d) 118 (C.A.), refd to. [para. 53].

R. v. Huff (C.), [1999] O.J. No. 5153 (Sup. Ct.), affd. [2000] O.J. No. 3487 (C.A.), leave to appeal refused [2001] 1 S.C.R. xvii; 271 N.R. 191; 149 O.A.C. 392, refd to. [para. 53].

R. v. Cresswell (R.J.) (2002), 161 O.A.C. 45; 2002 CarswellOnt 2025 (C.A.), refd to. [para. 53].

R. v. Boothby (R.), [2001] O.A.C. Uned. 303; 2001 CarswellOnt 4470 (C.A.), refd to. [para. 53].

R. v. Penner (S.G.), [2004] A.R. Uned. 129; 2004 ABQB 98, refd to. [para. 53].

R. v. Lieskovsky (M.R.), [2004] A.R. Uned. 612; 2004 ABPC 153, refd to. [para. 53].

R. v. Abercrombie (C.), [2007] A.R. Uned. 585; 2007 ABPC 226, refd to. [para. 53].

R. v. Ross (D.R.), [2009] B.C.T.C. Uned. 356; 2009 BCSC 356, refd to. [para. 53].

R. v. Calder (M.), [1996] 1 S.C.R. 660; 194 N.R. 52; 90 O.A.C. 18, refd to. [para. 54].

R. v. Cook (D.R.), [1998] 2 S.C.R. 597; 230 N.R. 83; 112 B.C.A.C. 1; 182 W.A.C. 1, refd to. [para. 54].

Counsel:

Anthony B. Gerein, for the Crown;

Mark Brayford, Q.C., for the respondent.

This appeal was heard on September 8, 2009, by Vancise, Jackson and Richards, JJ.A., of the Saskatchewan Court of Appeal. On March 26, 2010, Jackson, J.A., delivered the following resons for judgment for the court.