R. v. Kornak, (1984) 51 A.R. 93 (CA)

• Judge: Lieberman, McClung and Stevenson, JJ.A.
• Court: Court of Appeal (Alberta)
• Case Date: February 21, 1984
• Citations: (1984), 51 A.R. 93 (CA)

R. v. Kornak (1984), 51 A.R. 93 (CA)

MLB headnote and full text

R. v. Kornak

(16542)

Indexed As: R. v. Kornak

Alberta Court of Appeal

Lieberman, McClung and Stevenson, JJ.A.

February 21, 1984.

Summary:

The accused was charged with driving a motor vehicle while having an excessive blood-alcohol content, contrary to s. 236 of the Criminal Code of Canada. The Alberta Court of Queen's Bench, in a judgment not reported in this series of reports, convicted the accused. The accused appealed, submitting that the Crown failed to prove 15 clear minutes between the taking of the two breath samples.

The Alberta Court of Appeal dismissed the appeal and affirmed the conviction.

Criminal Law - Topic 1374

Motor vehicles - Impaired driving - Breathalyzer - Certificate evidence - Time interval between taking - A certificate stated that breath samples were "taken" at 12:58 and 1:15 - The accused submitted that since it took time to take a breath sample, the samples were not separated by at least 15 clear minutes - The Alberta Court of Appeal held that in the absence of evidence outside the certificate showing a lack of 15 clear minutes, a certificate specifying the times of taking and showing at least 15 clear minutes separation was sufficient to sustain a conviction.

Cases Noticed:

R. v. Norman (1978), 9 A.R. 96, refd to [para. 8].

R. v. Berg (1978), 17 A.R. 54 (Alta. Dist. Ct.), dist. [para. 12].

R. v. Perry, [1980] 1 S.C.R. 1124; 33 N.R. 106 affirming 33 N.R. 108; 41 C.C.C.(2d) 182, dist. [para. 13].

R. v. Staiger (1977), 4 A.R. 494; 35 C.C.C.(2d) 433 (Alta. C.A.), refd to. [para. 16].

R. v. Davis (1977), 35 C.C.C.(2d) 224 (Sask. C.A.), refd to. [para. 16].

R. v. Sutter (1977), 22 N.S.R.(2d) 273; 31 A.P.R. 273; 37 C.C.C.(2d) 127 (N.S.C.A.), refd to. [para. 16].

Statutes Noticed:

Criminal Code of Canada, R.S.C. 1970, c. C-34, sect. 237(1)(c), sect. 237(f) [para. 4].

Counsel:

J. Watson, for the Crown;

O.H. Kruger, for the accused.

This appeal was heard before Lieberman, McClung and Stevenson, JJ.A., of the Alberta Court of Appeal.

On February 21, 1984, the judgment of the Court of Appeal was delivered and the following opinions were filed:

McClung, J.A. - see paragraphs 1-9;

Stevenson, J.A. - see paragraphs 10-20.

Lieberman, J.A., concurred with Stevenson, J.A.