R. v. Kidney (T.G.), (2001) 211 Sask.R. 157 (QB)

• Judge: Smith, J.
• Court: Court of Queen's Bench of Saskatchewan (Canada)
• Case Date: September 10, 2001
• Jurisdiction: Saskatchewan
• Citations: (2001), 211 Sask.R. 157 (QB);2001 SKQB 415

R. v. Kidney (T.G.) (2001), 211 Sask.R. 157 (QB)

MLB headnote and full text

Temp. Cite: [2001] Sask.R. TBEd. SE.015

Trevor Garry Kidney (appellant) v. Her Majesty the Queen (respondent)

(2001 Q.B.C. No. 1321; 2001 SKQB 415)

Indexed As: R. v. Kidney (T.G.)

Saskatchewan Court of Queen's Bench

Judicial Centre of Melfort

Smith, J.

September 10, 2001.

Summary:

The accused was charged with operating a motor vehicle while having an excessive blood-alcohol level. He was convicted on the basis of a breathalyzer certificate which showed a blood-alcohol level of more than double the legal limit. He appealed on the ground that the trial judge applied the wrong standard of proof and made an unreasonable finding in determining that there was no "evidence to the contrary" sufficient to rebut the presumption in favour of the accuracy of the breathalyzer reading.

The Saskatchewan Court of Queen's Bench allowed the appeal.

Courts - Topic 583

Judges - Duties - Re reasons for decisions - The accused was charged with operating a motor vehicle while having an excessive blood-alcohol level - He was convicted on the basis of a breathalyzer certificate which showed a blood-alcohol level of more than double the legal limit - He appealed and argued the trial judge applied the wrong standard of proof and unreasonably found no "evidence to the contrary" - The Saskatchewan Court of Queen's Bench allowed the appeal, stating that "the judgment of the learned trial judge is at best ambiguous in relation to the standard of proof applied by the court in its determination that there was not evidence to the contrary sufficient to rebut the certificate of analysis. It is reasonably open to the interpretation that the court required the defence to convince it, or satisfy it, that the accused had not drunk significantly in excess of the amount that he testified he had drunk. This is not the proper standard of proof" - See paragraphs 8 and 9.

Criminal Law - Topic 1374

Motor vehicles - Impaired driving - Breathalyzer - Certificate evidence - Evidence to the contrary - [See Courts - Topic 583 ].

Criminal Law - Topic 4300

Procedure - Trial judge - Duties and functions of - Respecting credibility of witnesses (incl. accused) - [See Courts - Topic 583 ].

Criminal Law - Topic 4684

Procedure - Judgments and reasons for judgment - Reasons for judgment - Sufficiency of - [See Courts - Topic 583 ].

Cases Noticed:

R. v. Kaminski (1992), 100 Sask.R. 192; 18 W.A.C. 192 (C.A.), refd to. [para. 9].

R. v. Harvey (1987), 62 Sask.R. 278 (Q.B.), refd to. [para. 9].

R. v. Madraga (G.A.) (2001), 203 Sask.R. 78; 240 W.A.C. 78 (C.A.), dist. [para. 9].

Counsel:

Stuart J. Eisner, for the appellant;

Michael A. Segu, for the Crown.

This appeal was heard by Smith, J., of the Saskatchewan Court of Queen's Bench, Judicial Centre of Melfort, who delivered the following decision on September 10, 2001.