R. v. Kutash (N.W.), (1991) 92 Sask.R. 52 (QB)

• Judge: Hunter, J.
• Court: Court of Queen's Bench of Saskatchewan (Canada)
• Case Date: June 21, 1991
• Jurisdiction: Saskatchewan
• Citations: (1991), 92 Sask.R. 52 (QB)

R. v. Kutash (N.W.) (1991), 92 Sask.R. 52 (QB)

MLB headnote and full text

Her Majesty the Queen (appellant) v. Niles W. Kutash (respondent)

(Q.B.C.C. No. 217)

Indexed As: R. v. Kutash (N.W.)

Saskatchewan Court of Queen's Bench

Judicial Centre of Assiniboia

Hunter, J.

June 21, 1991.

Summary:

The Crown appealed the acquittal of the accused on a breathalyzer charge.

The Saskatchewan Court of Queen's Bench allowed the appeal and ordered a new trial.

Criminal Law - Topic 1374

Motor vehicles - Impaired driving - Breathalyzer - Certificate evidence - "As soon as practicable" - The accused failed an A.L.E.R.T. test - He was given a breathalyzer demand at 2:40 a.m. - He arrived at the detachment office at 3:20 a.m. - The first breathalyzer test was delayed when the constable went to arrest an intruder at nearby premises - The first sample was administered at 3:58 a.m.; the second at 4:20 a.m. - The Saskatchewan Court of Queen's Bench held that the tests were administered as soon as practicable, where the corporal satisfactorily explained the short delay - See paragraphs 9 to 15.

Criminal Law - Topic 1374

Motor vehicles - Impaired driving - Breathalyzer - Certificate evidence - Designation of technician - The constable who administered breathalyzer tests to the accused gave viva voce evidence that his designation as a qualified technician was gazetted in 1985 - The Saskatchewan Court of Queen's Bench held that the constable's viva voce evidence together with no evidence of an appointment of another individual in his place was prima facie proof of the designation - The onus was on the accused to prove that the tech­nician was not designated - See para­graphs 16 to 22.

Cases Noticed:

R. v. McCoy (1991), 86 Sask.R. 204, refd to. [para. 10].

R. v. Mudry (1979), 79 A.R. 379; 50 C.C.C(2d) 518 (C.A.), refd to. [para. 10].

R. v. Carter (1981), 9 Sask.R. 1; 59 C.C.C.(2d) 450 (C.A.), refd to. [para. 10].

R. v. Crowdis (1985), 39 Sask.R. 120 (Q.B.), refd to. [para. 12].

R. v. Henry (1988), 70 Sask.R. 5 (Q.B.), refd to. [para. 12].

R. v. Hellemont (1988), 70 Sask.R. 209 (Q.B.), refd to. [para. 12].

R. v. Phillips (1988), 27 O.A.C. 380; 42 C.C.C.(3d) 150 (C.A.), refd to. [para. 14].

R. v. Devine (1981), 14 M.V.R. 1 (Ont. C.C.), refd to [para. 14].

R. v. Schemenauer (1987), 58 Sask.R. 244; 34 C.C.C (3d) 578 (C.A.), dist. [para. 17].

R. v. Leavitt (1971), 5 C.C.C.(2d) 141 (Alta. S.C.), refd to. [para. 19].

R. v. LeBlanc (1972), 4 N.S.R.(2d) 29; 7 C.C.C.(2d) 525 (C.A.), refd to. [para. 19].

R. v. Adams (1986), 51 Sask.R. 161; 30 C.C.C.(3d) 469 (C.A.), refd to. [para. 19].

R. v. Novis (1987), 22 O.A.C. 244; 36 C.C.C.(3d) 275, appld. [para. 20].

Statutes Noticed:

Criminal Code, R.S.C. 1985, c. C-46, sect. 253(b), sect. 254, sect. 254(3) [para. 1].

Criminal Code, R.S.C. 1970, c. C-34, sect. 237, sect. 238 [para. 20]; sect. 238(1) [para. 6].

Interpretation Act, R.S.C. 1985, c. I-21. sect. 36 [para. 17].

Counsel:

W.A. Wall, for the appellant;

L.L. Mountain, for the respondent.

This appeal was heard before Hunter, J., of the Saskatchewan Court of Queen's Bench, who delivered the following judgment on June 21, 1991.