R. v. Lange (B.), 2016 SKCA 70

• Judge: Jackson, Whitmore and Ryan-Froslie, JJ.A.
• Court: Court of Appeal (Saskatchewan)
• Case Date: June 06, 2016
• Jurisdiction: Saskatchewan
• Citations: 2016 SKCA 70;(2016), 480 Sask.R. 133 (CA)

R. v. Lange (B.) (2016), 480 Sask.R. 133 (CA);

    669 W.A.C. 133

MLB headnote and full text

Temp. Cite: [2016] Sask.R. TBEd. JN.030

Her Majesty the Queen (appellant) v. Barry Lange (respondent)

(CACR2560; 2016 SKCA 70)

Indexed As: R. v. Lange (B.)

Saskatchewan Court of Appeal

Jackson, Whitmore and Ryan-Froslie, JJ.A.

June 6, 2016.

Summary:

The accused was found guilty of driving while having a blood-alcohol content exceeding the legal limit. He appealed, arguing that the trial judge erred in law by determining that the breath samples were taken by a qualified technician as defined in s. 254(1) of the Criminal Code and that the trial judge erred in admitting certain evidence after finding that the accused's s. 8 Charter rights had been infringed.

The Saskatchewan Court of Queen's Bench, in a judgment reported (2015), 468 Sask.R. 156, allowed the appeal on the qualified technician ground of appeal and set aside the conviction. The court did not address the exclusion of evidence issue. The Crown appealed.

The Saskatchewan Court of Appeal allowed the appeal. The appeal court judge misconstrued the trial judge's reasons and committed an error of law. The appeal court judge erred in finding that there was evidence rebutting the statutory presumption that the officer was a qualified technician. The officer's lack of clarity, during cross-examination, as to his status as a qualified technician did not constitute "evidence to the contrary" respecting his appointment. There was a difference between the officer's knowledge of the designation process and proving the designation itself. The court remitted the matter to the appeal court judge to resolve the undetermined ground of appeal (exclusion of evidence for a s. 8 Charter breach).

Criminal Law - Topic 1374

Motor vehicles - Impaired driving - Breathalyzer or blood sample - Evidence and certificate evidence - Lange was charged with driving while having a blood-alcohol content exceeding the legal limit - Cst. Herron, the officer who took Lange's breath samples, testified during cross-examination that he was designated as a qualified technician by Randy Prokoloptus who was the National Breath Tech Coordinator from the Winnipeg Lab - The trial judge found that there was no evidence to rebut the presumption of regularity respecting the Certificate of Qualified Technician - Lange was found guilty - He appealed, arguing that the trial judge erred in law by determining that the breath samples were taken by a qualified technician as defined in s. 254(1) of the Criminal Code - The appeal court judge allowed the appeal - Cst. Herron did not testify that he was designated as a qualified technician by the Attorney General, the Solicitor General, or their designates, as required by s. 254(1) of the Criminal Code and read in conjunction with s. 2 - Lange raised evidence through Cst. Herron's cross-examination which directly rebutted the presumption that Cst. Herron was a qualified technician - The trial judge's failure to address this evidence and consider it in his decision constituted an error in law - The Saskatchewan Court of Appeal allowed the appeal - The appeal court judge misconstrued the trial judge's reasons and erred in law in finding that the cross-examination evidence rebutted the statutory presumption that Herron was a qualified technician - There was a difference between the officer's knowledge of the designation process and proving the designation itself - The court remitted the matter to the appeal court judge to resolve the undetermined ground of appeal (exclusion of evidence for a s. 8 Charter breach).

Criminal Law - Topic 7618

Summary conviction proceedings - Appeal to a court of appeal - Remittal to trial judge or summary conviction appeal court judge - [See Criminal Law - Topic 1374 ].

Counsel:

W. Dean Sinclair, Q.C., for the appellant;

Donald R. Smith, for the respondent.

This appeal was heard on November 17, 2015, before Whitmore, Jackson and Ryan-Froslie, JJ.A., of the Saskatchewan Court of Appeal.

On June 6, 2016, Whitmore, J.A., delivered the following judgment for the Court of Appeal.