R. v. Hughes (G.J.), 2009 ABCA 11

• Judge: Paperny, J.A.
• Court: Court of Appeal (Alberta)
• Case Date: December 10, 2008
• Citations: 2009 ABCA 11;(2009), 446 A.R. 351 (CA)

R. v. Hughes (G.J.) (2009), 446 A.R. 351 (CA);

      442 W.A.C. 351

MLB headnote and full text

Temp. Cite: [2009] A.R. TBEd. JA.114

Her Majesty the Queen (respondent) v. Gregory John Hughes (applicant)

(0801-0199-A; 2009 ABCA 11)

Indexed As: R. v. Hughes (G.J.)

Alberta Court of Appeal

Paperny, J.A.

January 6, 2009.

Summary:

The accused was charged with driving with an excessive blood-alcohol level. The readings on the Certificate of Analyses were 140 and 150. An expert in the absorption and elimination of alcohol (Malicky) testified for the defence. Malicky had tested the accused and determined that his rate of elimination was 18.5 milligrams percent per hour. Based on the accused's alcohol consumption on the date of the offence, Malicky provided an opinion that the accused's blood-alcohol level would have been .062 if his elimination rate was 18.5. Malicky also testified that elimination rates could vary and that if Hughes' elimination rate on the date in question was not 18.5 mg, it would likely have been in the range of 10 mg to 20 mg. As a result, Malicky opined that Hughes' blood-alcohol level range would have been between 53 mg and 109 mg, a range that straddled the legal limit.

The Alberta Provincial Court, in a decision reported at (2007), 420 A.R. 348, acquitted the accused. The court was satisfied that Malicky's evidence raised a reasonable doubt that Hughes' blood-alcohol level was above the legal limit at the time of driving. The Crown appealed.

The Alberta Court of Queen's Bench, in a decision reported at  445 A.R. 313, allowed the appeal. The court considered the decision in R. v. Gibson (R.A.) (2008 SCC), which was not available to the trial judge. The court concluded that the ratio decidendi of the Gibson case was found in the majority judgment of Charron, J., namely that straddle evidence was inadmissible. The court held that, following the judgment of Charron, J., the trial judge erred by admitting the straddle evidence of Malicky. Alternatively, the court held that if it was wrong in its interpretation, and if the straddle evidence was admissible, then, based on the judgment of LeBel, J., in Gibson, the trial judge erred in law in placing any weight on the evidence, let alone in finding that the straddle evidence was capable of raising a reasonable doubt. The court concluded that there was no evidence to the contrary and it found the accused guilty of the offence. The accused applied for leave to appeal on the question of whether the court erred in its interpretation of Gibson.

The Alberta Court of Appeal, per Paperny, J.A., dismissed the application for leave to appeal.

Criminal Law - Topic 1374

Motor vehicles - Impaired driving - Breathalyzer or blood sample - Evidence and certificate evidence (incl. evidence tending to show) - The accused was charged with driving with an excessive blood-alcohol level - His readings were 140 and 150 - An expert in the absorption and elimination of alcohol (Malicky) testified for the defence - Malicky had tested the accused and determined that his rate of elimination was 18.5 milligrams percent per hour - Based on the accused's alcohol consumption on the date in question, Malicky provided an opinion that the accused's blood-alcohol level would have been .062 if his elimination rate was 18.5 - Malicky also testified that elimination rates could vary and that if Hughes' elimination rate on the date in question was not 18.5 mg, it would likely have been in the range of 10 mg to 20 mg - As a result, Malicky opined that Hughes' blood-alcohol level range would have been between 53 mg and 109 mg, a range that straddled the legal limit - The trial judge was satisfied that Malicky's evidence raised a reasonable doubt that Hughes' blood-alcohol level was above the legal limit - The accused was acquitted - The Alberta Court of Queen's Bench allowed a Crown appeal - The court considered the decision in R. v. Gibson (R.A.) (2008 SCC), which was not available to the trial judge - The court concluded that the ratio decidendi of the Gibson case was found in the majority judgment of Charron, J., namely that straddle evidence was inadmissible - The court held that, following the judgment of Charron, J., the trial judge erred by admitting the straddle evidence of Malicky - Alternatively, the court held that if it was wrong in its interpretation, and if the straddle evidence was admissible, then, based on the judgment of LeBel, J., in Gibson, the trial judge erred in law in placing any weight on the evidence, let alone in finding that the straddle evidence was capable of raising a reasonable doubt - The court concluded that there was no evidence to the contrary and it found the accused guilty - The accused applied for leave to appeal on the question of whether the summary conviction appeal judge erred in his interpretation of Gibson - The Alberta Court of Appeal, per Paperny, J.A., denied leave to appeal - The summary conviction appeal judge was correct on the basis of Gibson, in overturning the trial judge's finding that the straddle evidence raised a reasonable doubt - He was also correct that the law on the subject was clear and was as expressed by Charron, J. - Regardless of whether the summary conviction appeal judge followed the reasoning of Charron, J., or LeBel, J., he came to the proper conclusion.

Cases Noticed:

R. v. Gibson (R.A.), [2008] 1 S.C.R. 397; 373 N.R. 1; 429 A.R. 327; 421 W.A.C. 327; 2008 SCC 16, consd. [para. 1].

R. v. Gibson (R.A.) (2006), 243 N.S.R.(2d) 325; 772 A.P.R. 325; 2006 NSCA 51, refd to. [para. 1].

R. v. MacDonald (M.F.) (2006), 391 A.R. 140; 377 W.A.C. 140; 2006 ABCA 177, refd to. [para. 1].

R. v. Chaluk (K.W.) (1998), 237 A.R. 366; 197 W.A.C. 366; 1998 ABCA 253, refd to. [para. 5].

R. v. Bennett (B.T.) (2004), 354 A.R. 6; 329 W.A.C. 6; 2004 ABCA 116, refd to. [para. 5].

R. v. Ehli (A.) (2000), 277 A.R. 170; 242 W.A.C. 170; 2000 ABCA 335, refd to. [para. 5].

R. v. Zamfirov (1996), 92 O.A.C. 317 (C.A.), refd to. [para. 5].

R. v. Mohan, [1994] 2 S.C.R. 9; 166 N.R. 245; 71 O.A.C. 241, refd to. [para. 11].

R. v. Heideman (H.) (2002), 162 O.A.C. 270; 168 C.C.C.(3d) 542 (C.A.), refd to. [para. 11].

Counsel:

B.R. Graff, for the respondent;

T.E. Foster, for the applicant.

This application for leave to appeal was heard on December 10, 2008, before Paperny, J.A., of the Alberta Court of Appeal. The following reasons for decision were filed by Paperny, J.A., on January 6, 2009.