R. v. Helm,

• Jurisdiction: Saskatchewan
• Judge: Popescul, J.
• Neutral Citation: 2011 SKQB 32
• Citation: 2011 SKQB 32,(2011), 368 Sask.R. 115 (QB),[2011] 6 WWR 641,[2011] SJ No 38 (QL),368 Sask R 115,8 MVR (6th) 59,368 Sask.R. 115,(2011), 368 SaskR 115 (QB),368 SaskR 115,[2011] S.J. No 38 (QL)
• Date: 20 January 2011
• Court: Court of Queen's Bench of Saskatchewan (Canada)

R. v. Helm (B.E.) (2011), 368 Sask.R. 115 (QB)

MLB headnote and full text

Temp. Cite: [2011] Sask.R. TBEd. JA.053

Her Majesty the Queen (appellant) v. Bradley Ervin Helm (respondent)

(2009 Q.B.A. No. 13; 2011 SKQB 32)

Indexed As: R. v. Helm (B.E.)

Saskatchewan Court of Queen's Bench

Judicial Centre of Prince Albert

Popescul, J.

January 20, 2011.

Summary:

Helm was charged with impaired driving and driving while having an excessive blood-alcohol level. At trial, the impaired driving charge was withdrawn.

The Saskatchewan Provincial Court, in a decision not reported in this series of reports, acquitted Helm. The Crown appealed.

The Saskatchewan Court of Queen's Bench allowed the appeal, ordering a new trial.

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.) - Helm was charged with driving while having an excessive blood-alcohol level - The defence argued that the Crown had failed to prove that the roadside screening device used was properly identified as an "approved screening device" (ASD) because the officer had identified the device as an "Alcotest 7410", rather than the full description of either an "Alcotest ® 7410 PA3" or an "Alcotest ® 7410 GLC" - The trial judge accepted the argument, acquitting Helm - The Saskatchewan Court of Queen's Bench allowed the Crown's appeal, ordering a new trial - The trial judge's conclusion regarding the specificity required to describe the ASD was both an error in law and a factual finding that was unsupported by the evidence - It was an error in law to hold that the use of a shorthand description of the device employed, in the absence of any other evidence that the device was not approved, meant that the device was not approved and could not form the basis for reasonable and probable grounds to make a breath sample demand - It was a factually reversible error because the only reasonable conclusion that could be drawn from the uncontroverted evidence at trial was that the "Alcotest 7410" described by the officer was either an "Alcotest ® 7410 PA3" or an "Alcotest ® 7410 GLC" - See paragraphs 22 to 32.

Criminal Law - Topic 7463

Summary conviction proceedings - Appeals - General - Scope of appeal - The Saskatchewan Court of Queen's Bench discussed the standard of review in summary conviction appeals - Appeals by a defendant were governed by ss. 686(1) and 686(2) of the Criminal Code, while Crown appeals from acquittals were directed by s. 686(4) - Under ss. 686(1) and 686(2), a court could allow a defendant's appeal where the verdict was unreasonable and unsupported by the evidence, was based on an error of law, or on any ground if there was a miscarriage of justice - However, the defendant's appeal was to be dismissed where, although not properly convicted on a particular count, he was properly convicted on another count or there was a legal error, but no substantial wrong or miscarriage of justice - Under s. 686(4), a court could allow a Crown appeal from an acquittal if of the opinion that the defendant should have been found guilty - The Crown was not restricted on summary conviction appeals to raising only questions of law, but could also raise matters of fact and of mixed fact and law - On factual grounds, the standard of review was whether there was evidence on which a trier of fact, properly instructed, could reasonably reach the verdict - The appellate court was entitled to review, re-examine and re-weigh the evidence, but only for the purpose of determining if it was reasonably capable of supporting the trial judge's conclusion - On a question of law, the standard was correctness - The appellate court should intervene if the decision was not correct in law unless, in the case of defence appeals, there had been no substantial wrong or miscarriage of justice that had occurred - See paragraphs 8 to 20.

Criminal Law - Topic 7544

Summary conviction proceedings - Appeal on record to "Appeal Court" - Scope of appeal (incl. powers of judge) - [See Criminal Law - Topic 7463 ].

Criminal Law - Topic 7633

Summary conviction proceedings - Appeals - New trials - Grounds - [See Criminal Law - Topic 1386.4 ].

Criminal Law - Topic 7652

Summary conviction proceedings - Appeals - Grounds - Error of law - [See Criminal Law - Topic 1386.4 ].

Criminal Law - Topic 7658

Summary conviction proceedings - Appeals - Grounds - Error of fact - Crown appeals - [See Criminal Law - Topic 1386.4 ].

Cases Noticed:

R. v. J.J.A. (2005), 383 A.R. 179; 2005 ABPC 168, dist. [para. 6].

R. v. Jones (B.C.) (2001), 243 N.B.R.(2d) 1; 631 A.P.R. 1; 2001 NBQB 186, dist. [para. 6].

R. v. Boyko (K.D.) (1997), 154 Sask.R. 173 (Q.B.), dist. [para. 6].

R. v. Yellowhorse (1994), 7 M.V.R.(3d) 151 (Ont. C.J. Prov. Div.), dist. [para. 6].

R. v. Antonelli (1977), 38 C.C.C.(2d) 206 (B.C.C.A.), refd to. [para. 13].

R. v. Sall (1990), 81 Nfld. & P.E.I.R. 10; 255 A.P.R. 10; 54 C.C.C.(3d) 48 (Nfld. C.A.), refd to. [para. 14].

R. v. Wilke (1980), 56 C.C.C.(2d) 61 (Ont. C.A.), refd to. [para. 14].

R. v. Medicine Hat Greenhouses Ltd. and German, [1981] 3 W.W.R. 587; 26 A.R. 617 (C.A.), refd to. [para. 14].

R. v. Purves, [1980] 1 W.W.R. 148; 3 Man.R.(2d) 88 (C.A.), refd to. [para. 14].

R. v. Nelson, [1979] 3 W.W.R. 97; 3 Sask.R. 45 (C.A.), refd to. [para. 14].

R. v. Johnson (L.C.), [1986] 6 W.W.R. 238; 49 Sask.R. 217 (C.A.), refd to. [para. 14].

R. v. Bigsky (J.S.), [2007] 4 W.W.R. 99; 289 Sask.R. 179; 382 W.A.C. 179; 2006 SKCA 145, refd to. [para. 19].

R. v. Biniaris (J.), [2000] 1 S.C.R. 381; 252 N.R. 204; 134 B.C.A.C. 161; 219 W.A.C. 161; 2000 SCC 15, refd to. [para. 19].

R. v. Yebes, [1987] 2 S.C.R. 168; 78 N.R. 351, refd to. [para. 19].

R. v. Burns (R.H.), [1994] 1 S.C.R. 656; 165 N.R. 374; 42 B.C.A.C. 161; 67 W.A.C. 161, refd to. [para. 19].

R. v. Shepherd (C.), [2007] 4 W.W.R. 659; 289 Sask.R. 286; 382 W.A.C. 286; 2007 SKCA 29, refd to. [para. 20].

R. v. Henry (B.) (2006), 286 Sask.R. 154; 2006 SKQB 469, refd to. [para. 20].

R. v. MacLeod (E.J.) (2009), 272 B.C.A.C. 215; 459 W.A.C. 215; 79 M.V.R.(5th) 171; 2009 YKCA 5, refd to. [para. 24].

R. v. Gundy (T.) (2008), 235 O.A.C. 236; 57 C.R.(6th) 369; 2008 ONCA 284, appld. [para. 27].

R. v. Donald (K.) (No. 2) (2010), 363 Sask.R. 195; 2010 SKPC 123, refd to. [para. 27].

R. v. Usselman (D.) (2010), 360 Sask.R. 137; 2010 SKPC 83, refd to. [para. 27].

R. v. Caplette (D.A.), [2010] Sask.R. Uned. 69; 2010 SKPC 32, refd to. [para. 27].

R. v. Kachur (D.E.) (2010), 356 Sask.R. 122; 2010 SKPC 53, refd to. [para. 27].

R. v. Vigoren (M.), [2009] Sask.R. Uned. 194; 203 C.R.R.(2d) 163; 2009 SKPC 136, refd to. [para. 27].

R. v. Lundrigan (D.J.) (2009), 339 Sask.R. 108; 2009 SKPC 73, revd. (2010), 362 Sask.R. 153; 500 W.A.C. 153 (C.A.), refd to. [para. 27].

R. v. Sikorski (1990), 84 Sask.R. 241 (Q.B.), refd to. [para. 27].

Counsel:

John E. Syrnick, for the Crown;

Michael W. Owens, for the defendant.

This appeal was heard by Popescul, J., of the Saskatchewan Court of Queen's Bench, Judicial Centre of Prince Albert, who delivered the following judgment on January 20, 2011.