R. v. Kalia (S.), 2013 ABPC 106

• Judge: Groves, P.C.J.
• Court: Provincial Court of Alberta (Canada)
• Case Date: February 04, 2013
• Citations: 2013 ABPC 106;(2013), 563 A.R. 232 (PC)

R. v. Kalia (S.) (2013), 563 A.R. 232 (PC)

MLB headnote and full text

Temp. Cite: [2013] A.R. TBEd. JN.032

Her Majesty the Queen v. Sameer Kalia (accused)

(100877547P1; 2013 ABPC 106)

Indexed As: R. v. Kalia (S.)

Alberta Provincial Court

Groves, P.C.J.

May 29, 2013.

Summary:

The accused was charged with driving with a blood-alcohol content over the legal limit. He argued that the Crown could not rely on the Certificate of Analysis to prove the concentration of alcohol in his blood because it failed to comply with the requirements of s. 258(7) of the Criminal Code. He also argued that his s. 8 Charter rights were violated because the officer did not have reasonable grounds to make a demand for evidentiary breath samples.

The Alberta Provincial Court held that the Certificate of Analysis could not be received into evidence because the Crown was unable to prove beyond a reasonable doubt that the copy served on the accused was a true copy of the original. The Certificate of Analysis was also inadmissible as a result of the violation of the accused's s. 8 Charter rights.

Civil Rights - Topic 1217

Security of the person - Lawful or reasonable search - What constitutes unreasonable search and seizure - [See Criminal Law - Topic 1372 ].

Civil Rights - Topic 1404.1

Security of the person - Law enforcement - Breath or blood samples - [See Criminal Law - Topic 1372 ].

Civil Rights - Topic 8368

Canadian Charter of Rights and Freedoms - Denial of rights - Remedies - Exclusion of evidence - [See Criminal Law - Topic 1372 ].

Criminal Law - Topic 1372

Offences against person and reputation - Motor vehicles - Impaired driving - Breathalyzer or blood sample - Demand - Reasonable grounds - As Kalia was leaving a casino, he bumped into a casino employee - The employee watched Kalia go to his vehicle - She called police and told them that Kalia staggered as he walked to his vehicle - Police arrived as Kalia was starting to back out of the parking stall - Kalia admitted to consuming two beer - He slipped slightly upon exiting his vehicle - Kalia informed the officer that he was a diabetic - The officer noticed some unsteadiness in Kalia's walk and a slight smell of alcohol coming from his breath - Kalia was cooperative, followed directions, and did not exhibit slurred speech - The officer made a demand for evidentiary breath samples - Kalia was subsequently charged with driving with a blood-alcohol content over the legal limit - He claimed that his s. 8 Charter rights were violated because the officer did not have reasonable grounds to make a demand for evidentiary breath samples - He testified that his balance was off due to his high blood sugar levels - The Alberta Provincial Court held that Kalia's s. 8 rights were violated - Since there was no driving pattern, the only indicia of impairment that the officer could rely on were a stagger, a minor slip upon exiting the vehicle, and a slight sway to Kalia's walk - These indicia were sufficient to authorize the officer to make a demand for breath samples into a roadside screening device, but fell short of providing the reasonable grounds required to make a demand for evidentiary breath samples - The court excluded the Certificate of Analysis from evidence - See paragraphs 55 to 72.

Criminal Law - Topic 1379.2

Offences against person and reputation - Motor vehicles - Impaired driving - Breathalyzer - Admissibility where Charter right breached - [See Criminal Law - Topic 1372 ].

Criminal Law - Topic 1382.1

Offences against person and reputation - Motor vehicles - Impaired driving - Breathalyzer - Service of certificate and copy - Kalia was charged with driving with a blood-alcohol content over the legal limit - A police officer failed to serve Kalia with a copy of the Certificate of Analysis and Notice of Intention to Produce when Kalia was released - He attended at Kalia's residence the next morning and served him with the Certificate and Notice - The officer failed to insert the date he served Kalia on the Affidavit of Personal Service - Kalia argued that the Crown could not rely on the Certificate of Analysis to prove the concentration of alcohol in his blood because it failed to comply with the requirements of s. 258(7) of the Criminal Code - The Alberta Provincial Court held that the Affidavit of Service was defective as it failed to disclose the date the Certificate was served - The Crown was unable to prove beyond a reasonable doubt that the copy served on Kalia was a true copy of the original - Therefore, pursuant to s. 258(7), the Certificate could not be received into evidence - See paragraphs 46 to 54.

Cases Noticed:

R. v. Redford (B.S.) (2012), 549 A.R. 183; 2012 ABQB 768, refd to. [para. 47].

R. v. St-Onge Lamoureux (A.) (2012), 436 N.R. 199; 2012 SCC 57, refd to. [para. 47].

R. v. Dineley (S.) (2012), 436 N.R. 59; 297 O.A.C. 50; 2012 SCC 58, refd to. [para. 47].

R. v. Egger (J.H.), [1993] 2 S.C.R. 451; 153 N.R. 272; 141 A.R. 81; 46 W.A.C. 81, refd to. [para. 49].

R. v. Barratt (1977), 35 C.C.C.(2d) 174 (Ont. H.C.), refd to. [para. 52].

R. v. Glass (1973), 12 C.C.C.(2d) 450 (Sask. C.A.), refd to. [para. 52].

Southam Inc. v. Hunter et al., [1984] 2 S.C.R. 145; 55 N.R. 241; 55 A.R. 291, refd to. [para. 58].

R. v. Collins (1987), 74 N.R. 276; 33 C.C.C.(3d) 1 (S.C.C.), refd to. [para. 58].

R. v. McClelland (B.L.) (1995), 165 A.R. 332; 89 W.A.C. 332 (C.A.), refd to. [para. 60].

R. v. Cuthbertson (T.C.), [2003] A.R. Uned. 513; 2003 ABPC 83, refd to. [para. 60].

R. v. Musurichan (1990), 107 A.R. 102 (C.A.), refd to. [para. 60].

R. v. Shepherd (C.), [2009] 2 S.C.R. 527; 391 N.R. 132; 331 Sask.R. 306; 460 W.A.C. 306; 2009 SCC 35, refd to. [para. 61].

R. v. Bernshaw (N.), [1995] 1 S.C.R. 254; 176 N.R. 81; 53 B.C.A.C. 1; 87 W.A.C. 1, refd to. [para. 61].

R. v. Bellamy (J.J.) (2009), 486 A.R. 35; 2009 ABQB 759, refd to. [para. 63].

R. v. Huddle (1989), 102 A.R. 144; 21 M.V.R.(2d) 150 (C.A.), refd to. [para. 64].

R. v. Thimer (W.G.), [2012] A.R. Uned. 452; 2012 ABPC 192, refd to. [para. 64].

R. v. Grenke (M.J.) (2011), 527 A.R. 186; 2011 ABQB 565, refd to. [para. 65].

R. v. Baltzer (D.J.), [2011] A.R. Uned. 144; 2011 ABQB 84, refd to. [para. 66].

R. v. Mejia (C.U.), [2009] A.R. Uned. 720; 2009 ABPC 310, refd to. [para. 67].

R. v. Waters (D.B.) (2010), 504 A.R. 304; 2010 ABQB 607, refd to. [para. 67].

Counsel:

D. Rogers, for the Crown;

W. Raponi, for the accused.

This voir dire was heard on February 4, 2013, before Groves, P.C.J., of the Alberta Provincial Court, who delivered the following ruling at Edmonton, Alberta, on May 29, 2013.