R. v. Gunn (G.A.), (2009) 329 Sask.R. 106 (QB)

• Judge: Koch, J.
• Court: Court of Queen's Bench of Saskatchewan (Canada)
• Case Date: February 02, 2009
• Jurisdiction: Saskatchewan
• Citations: (2009), 329 Sask.R. 106 (QB);2009 SKQB 57

R. v. Gunn (G.A.) (2009), 329 Sask.R. 106 (QB)

MLB headnote and full text

Temp. Cite: [2009] Sask.R. TBEd. FE.022

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

(2008 Q.B.A. No. 3; 2009 SKQB 57)

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

Saskatchewan Court of Queen's Bench

Judicial Centre of Battleford

Koch, J.

February 2, 2009.

Summary:

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

The Saskatchewan Court of Queen's Bench allowed the appeal. The conviction was set aside.

Civil Rights - Topic 4604

Right to counsel - General - Denial of or interference with - What constitutes - After his vehicle was pulled over by a police officer, the accused stated to the officer that he "had a few beer about 20 minutes ago in Paradise Hill" - It was well known to the officer that to drive from Paradise Hill to the location where the accused was stopped took about 1.5 hours - Noting that the accused had glassy eyes and slurred speech, the officer inferred that the reference to Paradise Hill indicated that the accused was disoriented as to time and location - This inference contributed to the officer's decision to demand a breath test - In convicting the accused of driving while having an excessive blood-alcohol level, the trial judge rejected an application to exclude the evidence of the accused's statement on the basis of a violation of the accused's Charter s. 10(b) right to counsel - The trial judge held that the officer's inference was a reasonable one that he could take into account without concern about s. 10(b) - The Saskatchewan Court of Queen's Bench held that the trial judge was correct - See paragraphs 9 to 11.

Civil Rights - Topic 4609.1

Right to counsel - General - Duty of police investigators - [See Civil Rights - Topic 4604 ].

Civil Rights - Topic 4610

Right to counsel - General - Impaired driving (incl. demand for breath or blood sample) - [See Civil Rights - Topic 4604 ].

Courts - Topic 5

Stare decisis - Authority of judicial decisions - General principles - Authority and use of precedents - General - [See Criminal Law - Topic 1374 ].

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 Saskatchewan Court of Queen's Bench 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 - See paragraphs 15 to 19.

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 the certificate of analysis should have been admitted as proof of the accused's blood-alcohol levels because it did not include the time of the commencement of the taking of the second breath sample and thus did not satisfy the requirements of s. 258(1)(e)(ii) of the Criminal Code - The Saskatchewan Court of Queen's Bench allowed the appeal on the basis that the certificate of analysis was inadmissible - There were two conflicting lines of decisions, one based on R. v. Feiffer (Sask. Q.B., 1984), in which a certificate in a similar form was admitted as satisfactory proof, and one based on R. v. Eggen (Sask. C.A., 1988) in which such a certificate was inadmissible - The dilemma was that, in one decision, the Court of Queen's Bench had held that a Provincial Court judge did not err in following Feiffer and, in another, it had held that a Provincial Court judge did not err in following Eggen - It was appropriate to follow Eggen because it was later in time - Not to follow Eggen without a further decision of the Court of Appeal would only create more confusion for litigants and judges in the provincial courts - The accused's conviction was set aside - See paragraphs 21 to 26.

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 4574

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

Cases Noticed:

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. 9].

R. v. Quercia (1990), 41 O.A.C. 305; 60 C.C.C.(3d) 380 (C.A.), refd to. [para. 13].

R. v. Andres, [1982] 2 W.W.R. 249; 1 Sask.R. 96 (C.A.), refd to. [para. 13].

R. v. Yebes, [1987] 2 S.C.R. 168; 78 N.R. 351, refd to. [para. 13].

R. v. Bursey (1982), 53 N.S.R.(2d) 353; 109 A.P.R. 353 (C.A.), refd to. [para. 13].

R. v. G.B. et al. (No. 3), [1990] 2 S.C.R. 57; 111 N.R. 62; 86 Sask.R. 142, refd to. [para. 13].

R. v. Morin, [1988] 2 S.C.R. 345; 88 N.R. 161; 30 O.A.C. 81, refd to. [para. 13].

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; 2002 SCC 26, refd to. [para. 14].

R. v. Hardy (T.) (2008), 321 Sask.R. 156; 2008 SKPC 132, refd to. [para. 24].

R. v. Elliott (D.W.) (2005), 268 Sask.R. 317; 2005 SKQB 376, refd to. [para. 25].

R. v. Feiffer (1984), 35 Sask.R. 196 (Q.B.), not folld. [para. 25].

R. v. Eggen (1988), 66 Sask.R. 124 (C.A.), folld. [para. 25].

R. v. Bachinski (G.A.) (2007), 309 Sask.R. 67; 2007 SKPC 140, refd to. [para. 25].

R. v. Thompson (J.A.C.) (2008), 322 Sask.R. 64; 2008 SKQB 159, refd to. [para. 25].

Counsel:

Mark Brayford, Q.C., for the appellant;

Michel L.J. Piché, for the respondent.

This appeal was heard by Koch, J., of the Saskatchewan Court of Queen's Bench, Judicial Centre of Battleford, who delivered the following judgment on February 2, 2009.