R. v. Kehler (V.L.), (2009) 242 Man.R.(2d) 15 (PC)

• Judge: Smith, P.C.J.
• Court: Provincial Court of Manitoba (Canada)
• Case Date: June 18, 2009
• Jurisdiction: Manitoba
• Citations: (2009), 242 Man.R.(2d) 15 (PC);2009 MBPC 29

R. v. Kehler (V.L.) (2009), 242 Man.R.(2d) 15 (PC)

MLB headnote and full text

Temp. Cite: [2009] Man.R.(2d) TBEd. JL.004

Her Majesty The Queen v. Victoria Lee Kehler

(2009 MBPC 29)

Indexed As: R. v. Kehler (V.L.)

Manitoba Provincial Court

Smith, P.C.J.

June 18, 2009.

Summary:

Kehler was charged with driving while having an excessive blood-alcohol level. The offence date was July 1, 2007. In July 2008, amendments to the Criminal Code took effect which changed the way evidence to the contrary could be used to rebut the presumed accuracy of the breathalyzer results. With the amendments, in addition to credible evidence from the accused as to alcohol consumption and expert evidence regarding the breathalyzer readings, there also had to be some evidence that the breathalyzer machine had malfunctioned or was operated improperly. The issue was whether the amendments applied to Kehler's trial.

The Manitoba Provincial Court held that the amendments were retrospective in effect and applied to Kehler's trial.

Courts - Topic 17

Stare decisis - Authority of judicial decisions - General principles - Scope of stare decisis - The Manitoba Provincial Court reviewed the case law on judicial comity and stare decisis, coming to the conclusion that, in Manitoba, the two phrases expressed the same concept - The court was not bound to follow a decision made by a colleague on the same legal point - However, there had to be some compelling or strong reason for a judge to take an opposite position on an issue previously decided by another member of the same court - In the criminal context, for the sake of consistency, colleagues' decisions should generally be followed - See paragraphs 18 to 42.

Courts - Topic 17

Stare decisis - Authority of judicial decisions - General principles - Scope of stare decisis - Kehler was charged with driving while having an excessive blood-alcohol level - The offence date was July 1, 2007 - In July 2008, amendments to the Criminal Code took effect which changed the way evidence to the contrary could be used to rebut the presumed accuracy of the breathalyzer results - With the amendments, in addition to credible evidence from the accused as to alcohol consumption and expert evidence regarding the breathalyzer readings, there also had to be some evidence that the breathalyzer machine had malfunctioned or was operated improperly - The issue was whether the amendments applied to Kehler's trial - Two previous decisions of the same court, R. v. Cook (D.) and R. v. Lussier (B.L.), held that the amendments applied retrospectively - The Manitoba Provincial Court observed that it was not bound to follow a decision made by a colleague on the same legal point - However, there had to be some compelling or strong reason for a judge to take an opposite position on an issue previously decided by another member of the same court - In the criminal context, for the sake of consistency, colleagues' decisions should generally be followed - The reasoning in both Cook and Lussier was sound - The court rejected Kehler's argument that Cook was wrongly decided because the court referred to "retroactivity" rather than "retrospectivity" - The analysis in Cook and Lussier had been accepted by numerous courts outside of Manitoba - Applying the notions of judicial comity and the doctrine of stare decisis, the court followed Cook and Lussier to find that the amendments were retrospective in effect and applied to Kehler's trial - See paragraphs 43 to 49.

Courts - Topic 87

Stare decisis - Authority of judicial decisions - Prior decisions of same court - Provincial courts - [See both Courts - Topic 17 ].

Criminal Law - Topic 1374

Offences against person and reputation - Motor vehicles - Impaired driving - Breathalyzer or blood sample - Evidence and certificate evidence (incl. evidence tending to show) - [See second Courts - Topic 17 ].

Statutes - Topic 6714

Operation and effect - Commencement, duration and repeal - Retrospective and retroactive enactments - Retrospective or retroactive operation - Criminal or penal legislation - [See second Courts - Topic 17 ].

Cases Noticed:

R. v. Cook (D.) (2009), 242 Man.R.(2d) 4; 2009 MBPC 23, folld. [para. 4].

R. v. Lussier (B.L.) (2009), 242 Man.R.(2d) 26; 2009 MBPC 27, folld. [para. 7].

R. v. Clark (D.J.) (2009), 470 A.R. 201; 2009 ABQB 215, refd to. [para. 8].

R. v. Ali, [1980] 1 S.C.R. 221; 27 N.R. 243; 21 Nfld. & P.E.I.R. 361; 56 A.P.R. 361, refd to. [para. 9].

R. v. Eddy Match Co. (1953), 109 C.C.C. 1; 18 C.R. 357 (Que. C.A.), refd to. [para. 11].

R. v. Wareham, 2008 ONCJ 694, refd to. [para. 16].

R. v. Hummel (1987), 36 C.C.C.(3d) 8 (Ont. H.C.), refd to. [para. 20].

R. v. Unnah, [2007] O.J. No. 101 (C.J.), refd to. [para. 20].

R. v. Wolverine and Bernard, [1987] 3 W.W.R. 475; 59 Sask.R. 22 (Q.B.), refd to. [para. 21].

Honesty Property Co. et al. v. Lemaigre (2004), 241 Sask.R. 313; 313 W.A.C. 313; 2004 SKCA 28, refd to. [para. 21].

R. v. Butchko (C.L.) (2004), 250 Sask.R. 222; 2004 SKQB 140, refd to. [para. 21].

Holmes v. Jarrett, [1993] O.J. No. 679 (Gen. Div.), refd to. [para. 24].

Hansard Spruce Mills Ltd. (Bankrupt), Re (1954), 13 W.W.R.(N.S.) 285 (B.C.S.C.), refd to. [para. 25].

R. v. Northern Electric Co. et al., [1955] 3 D.L.R. 449 (Ont. H.C.), refd to. [para. 26].

Widmont v. Minister of Employment and Immigration, [1984] 2 F.C. 274; 56 N.R. 198 (F.C.A.), refd to. [para. 26].

R. v. Letourneau (P.N.) (2008), 447 A.R. 218; 2008 ABPC 192, refd to. [para. 29].

R. v. McNeil (L.) (2009), 383 N.R. 1; 246 O.A.C. 154; 2009 SCC 3, refd to. [para. 29].

R. v. Evangelou, 2008 ONCJ 454, refd to. [para. 34].

R. v. Koziolek (H.) (1999), 92 O.T.C. 188 (Gen. Div.), refd to. [para. 35].

R. v. Bartholomew, 2008 ONCJ 645, refd to. [para. 38].

R. v. Vavrishkin, 2008 ONCJ 567, refd to. [para. 38].

Zimmer v. School District of Snow Lake No. 2309 (1987), 49 Man.R.(2d) 211 (Q.B.), refd to. [para. 39].

Sparks Estate v. McKay - see Sparks Estate, Re.

Sparks Estate, Re (1994), 95 Man.R.(2d) 181; 70 W.A.C. 181 (C.A.), refd to. [para. 40].

R. v. Truong (C.), [2009] B.C.T.C. Uned. 22; 2009 BCSC 22, refd to. [para. 46].

R. v. P.L.E., [2008] O.T.C. Uned. S09; 2008 WL 5353434 (Sup. Ct.), refd to. [para. 46].

R. v. Onyszkanycz (B.), [2008] O.T.C. Uned. 097 (Sup. Ct.), refd to. [para. 46].

Counsel:

N. Carnegie and U. Saeed, for the Crown;

M. Wasyliw, for the accused.

This motion was heard by Smith, P.C.J., of the Manitoba Provincial Court, who delivered the following reasons for decision on June 18, 2009.