R. v. A.L.E.,

• Jurisdiction: Saskatchewan
• Judge: Lane, Richards and Wilkinson, JJ.A.
• Neutral Citation: 2009 SKCA 65
• Court: Court of Appeal (Saskatchewan)
• Date: 09 June 2009
• Citation: (2009), 359 Sask.R. 59 (CA),2009 SKCA 65,[2011] 3 WWR 656,256 CCC (3d) 476,[2009] CarswellSask 902,[2009] SJ No 797 (QL),359 Sask R 59,96 MVR (5th) 48,[2009] S.J. No 797 (QL),359 Sask.R. 59,359 SaskR 59,(2009), 359 SaskR 59 (CA)

R. v. A.L.E. (2009), 359 Sask.R. 59 (CA);

    494 W.A.C. 59

MLB headnote and full text

Temp. Cite: [2010] Sask.R. TBEd. JN.042

Her Majesty The Queen (respondent) v. A.L.E. (appellant)

(No. 1417; 2009 SKCA 65)

Indexed As: R. v. A.L.E.

Saskatchewan Court of Appeal

Lane, Richards and Wilkinson, JJ.A.

June 9, 2009.

Summary:

A 16 year old girl, who admittedly consumed alcohol, inexplicably lost control of her motor vehicle on a gravel road. As she tried to regain control, the vehicle rolled over. One passenger was ejected from the vehicle and died. A blood sample analysis was excluded from evidence on Charter grounds. Accordingly, there was no evidence as to the girl's blood-alcohol level. The girl was convicted of impaired driving causing death, but acquitted on charges of dangerous driving causing death and driving while having an excessive blood-alcohol content. The girl appealed against conviction and sentence.

The Saskatchewan Court of Appeal allowed the appeal and ordered a new trial. The trial judge inadvertently relaxed the burden of proof on the Crown as a result of an error in articulating the applicable test for what constituted impaired driving causing death.

Editor's Note: Certain names in the following case have been initialized or the case otherwise edited to prevent the disclosure of identities where required by law, publication ban, Maritime Law Book's editorial policy or otherwise.

Criminal Law - Topic 1362

Motor vehicles - Impaired driving - Evidence and proof - The accused was convicted of impaired driving causing death - The trial judge correctly stated the law, but went on to state that "where it is necessary to prove impairment of ability to drive by observations of the accused and her conduct, those observations must indicate behavior that deviates from normal behavior to a degree that the onus requires an opinion as to impairment must meet the objective standard of 'a reasonable man'. There must be some objective basis for the opinion. This is so to avoid the uncertainties of subjective beliefs." - The Crown conceded that the statement did not correctly articulate the test for impaired driving, let alone impaired driving causing death - The Saskatchewan Court of Appeal allowed the accused's conviction appeal and ordered a new trial - It was unclear whether the trial judge, by his statement was simply noting the type of evidence that was admissible (lay opinion evidence), which was not an error, or whether he was stating the ultimate test to be applied (error) - The court stated that the correct test "...was whether the Crown had proved beyond a reasonable doubt that alcohol-related impairment in the ability to drive, whether slight or great, contributed to the fatality in more than a trivial or insignificant way. ... Lay opinion as to intoxication had undue bearing on the result, given the 'reasonable man standard' applied by the trial judge, and the consequential dilution of the burden of proof that the use of such a standard necessarily implies" - The trial judge "took what was simply an evidentiary tool (lay opinion on intoxication) and effectively transformed it into the applicable standard of proof. He effectively stated that the standard of proof was met if a reasonable man would believe the [accused] was impaired in her ability to drive to a degree that deviated from normal. ... this error pervaded his assessment of the evidence and imposed a less stringent burden of persuasion upon the Crown than the law demanded." - See paragraphs 33 to 63.

Criminal Law - Topic 1362.1

Motor vehicles - Impaired driving - Impaired driving causing injury or death - [See Criminal Law - Topic 1362 ].

Criminal Law - Topic 5221

Evidence and witnesses - Burden of proof - Proof of guilt beyond a reasonable doubt - [See Criminal Law - Topic 1362 ].

Cases Noticed:

R. v. Stellato (T.) (1993), 61 O.A.C. 217; 78 C.C.C.(3d) 380; 18 C.R.(4th) 127 (C.A.), affd. [1994] 2 S.C.R. 478; 168 N.R. 190; 72 O.A.C. 140, refd to. [para. 31, footnotes 10, 11].

R. v. Graat, [1982] 2 S.C.R. 819; 45 N.R. 451, refd to. [para. 32, footnote 12].

R. v. Andrews (M.A.) (1996), 178 A.R. 182; 110 W.A.C. 182; 104 C.C.C.(3d) 392 (C.A.), refd to. [para. 39, footnote 13].

R. v. Ferguson, [1965] 1 C.C.C. 123 (Sask. C.A.), refd to. [para. 43, footnote 17].

R. v. Smithers, [1978] 1 S.C.R. 506; 15 N.R. 287, refd to. [para. 44, footnote 18].

R. v. Halkett (1988), 73 Sask.R. 241 (C.A.), refd to. [para. 44, footnote 19].

R. v. Pinske, [1989] 2 S.C.R. 979; 100 N.R. 399, refd to. [para. 44, footnote 20].

R. v. Nette (D.M.), [2001] 3 S.C.R. 488; 277 N.R. 301; 158 B.C.A.C. 98; 258 W.A.C. 98; 2001 SCC 78, refd to. [para. 44, footnote 21].

R. v. Cabral (J.M.) (2001), 153 Man.R.(2d) 115; 238 W.A.C. 115; 2001 MBCA 10, refd to. [para. 45, footnote 22].

R. v. Fisher (1992), 7 B.C.A.C. 264; 15 W.A.C. 264; 13 C.R.(4th) 222 (C.A.), refd to. [para. 46, footnote 23].

R. v. Andrew (R.J.) (1994), 46 B.C.A.C. 299; 75 W.A.C. 299; 91 C.C.C.(3d) 97 (C.A.), refd to. [para. 48, footnote 24].

R. v. Powell (1989), 81 Sask.R. 301; 52 C.C.C.(3d) 403 (C.A.), refd to. [para. 49, footnote 25].

R. v. Horton (B.M.), [2003] Sask.R. Uned. 280; [2004] 10 W.W.R. 762; 2003 SKQB 510, refd to. [para. 51, footnote 27].

R. v. Singer (D.G.), [1999] Sask.R. Uned. 83; 43 M.V.R.(3d) 160 (Q.B.), refd to. [para. 51, footnote 28].

R. v. White (G.) (1994), 130 N.S.R.(2d) 143; 367 A.P.R. 143; 89 C.C.C.(3d) 336 (C.A.), refd to. [para. 52, footnote 29].

R. v. Power (E.), [1994] 1 S.C.R. 601; 165 N.R. 241; 117 Nfld. & P.E.I.R. 269; 365 A.P.R. 269, refd to. [para. 53, footnote 30].

R. v. Burns (R.H.), [1994] 1 S.C.R. 656; 165 N.R. 374; 42 B.C.A.C. 161; 67 W.A.C. 161, refd to. [para. 62, footnote 33].

Counsel:

William R. Campbell, for the Crown;

Shannon K.C. Prithipaul, for the appellant.

This appeal was heard on September 17, 2008, before Lane, Richards and Wilkinson, JJ.A., of the Saskatchewan Court of Appeal.

On June 9, 2009, Wilkinson, J.A., delivered the following judgment for the Court of Appeal.