R. v. Melnyk (K.D.),

• Judge: Dunnigan, P.C.J.
• Neutral Citation: 2014 ABPC 3
• Citation: (2014), 581 A.R. 25 (PC),2014 ABPC 3,581 AR 25,(2014), 581 AR 25 (PC),581 A.R. 25
• Date: 22 June 2012
• Court: Provincial Court of Alberta (Canada)

R. v. Melnyk (K.D.) (2014), 581 A.R. 25 (PC)

MLB headnote and full text

Temp. Cite: [2014] A.R. TBEd. FE.041

Her Majesty the Queen v. Kevin Dale Melnyk (110781499P101001-002; 2014 ABPC 3)

Indexed As: R. v. Melnyk (K.D.)

Alberta Provincial Court

Dunnigan, P.C.J.

January 10, 2014.

Summary:

The accused was charged with impaired driving and driving while having a blood-alcohol content over the legal limit. He argued that (1) the admissible indicia of impairment were insufficient to establish that his ability to operate a motor vehicle was impaired by alcohol; and (2) the breathalyzer results should be excluded because the certificate designating the breath technician as a "qualified technician" was not signed by the Attorney General or his lawful deputy as set out in s. 254 of the Criminal Code.

The Alberta Provincial Court found the accused not guilty of impaired driving but guilty of driving while having a blood-alcohol content over the legal limit.

Administrative Law - Topic 1064

Classification of power or function - Administrative - Designation of qualified breathalyzer technician - [See Criminal Law - Topic 1374 ].

Criminal Law - Topic 1362

Motor vehicles - Impaired driving - Evidence and proof - A police officer pulled over the accused's vehicle after observing an unusual driving pattern - The officer asked the accused to exit the vehicle so that she could determine the source of the smell of alcohol that was coming from the vehicle's interior - The accused was charged with impaired driving - At issue was the admissibility of evidence that was gathered after the accused was compelled to exit the vehicle and before he had an opportunity to speak with counsel - The Alberta Provincial Court held that the evidence was inadmissible - Incriminating evidence that police compelled an accused to create could not be used to prove impairment unless the police made their observations while carrying out other authorized duties - In this case, there were no other duties being performed by the officer other than an impaired driving investigation - Smelling the accused's breath and watching him walk out of his vehicle could only support the officer's reasonable grounds to make a breath demand - It could not constitute evidence to prove impaired operation - See paragraphs 22 to 54.

Criminal Law - Topic 1362

Motor vehicles - Impaired driving - Evidence and proof - The accused was charged with impaired driving - Evidence of impairment consisted of the following: (1) the accused was travelling down the centre of the road; (2) he was travelling at 20 km/hour over the speed limit; (3) he pulled his vehicle over and stopped at an angle with the nose of his vehicle two feet from the curb; (4) glassy eyes; (5) difficulty returning his belt to the loop in his pants - The Alberta Provincial Court found the accused not guilty - The evidence was insufficient to establish that the accused's ability to operate a motor vehicle was impaired by alcohol - See paragraphs 51 to 54.

Criminal Law - Topic 1374

Motor vehicles - Impaired driving - Breathalyzer or blood sample - Evidence and certificate evidence - The accused was charged with driving while having a blood-alcohol content over the legal limit - He argued that the breathalyzer results should be excluded from evidence because the certificate designating the breath technician as a "qualified technician" was not signed by the Attorney General or his lawful deputy, as set out in ss. 2 and 254 of the Criminal Code - Rather, it was signed by the Assistant Deputy Minister, Public Security Division of the Alberta Solicitor General Department, whom the accused asserted was not a "lawful deputy" - The Alberta Provincial Court rejected this argument and found the accused guilty - Although there was a general presumption against delegation, government ministers had an implied authority to delegate as needed to facilitate the administration of justice - The nature of the task being delegated was a relevant consideration; the more administrative the function, the more readily the delegation was deemed permissible - The appointment of a "qualified technician" was an administrative function - The Assistant Deputy Minister was encompassed within that body of individuals who might act as "lawful deputy" - Finally, the document purporting to appoint the breath technician enjoyed a presumption of regularity, and there was no evidence to the contrary - See paragraphs 55 to 96.

Crown - Topic 710

Authority of Ministers - Delegation of - Administrative powers - Implied delegation - [See Criminal Law - Topic 1374 ].

Evidence - Topic 2501

Special modes of proof - Presumptions - Regularity - Documents - [See Criminal Law - Topic 1374 ].

Words and Phrases

Lawful deputy - The Alberta Provincial Court interpreted the meaning of this term as found in s. 2 of the Criminal Code, R.S.C. 1985, c. C-46 - See paragraphs 61 to 85.

Cases Noticed:

R. v. Brookwell (G.S.) (2008), 456 A.R. 343; 1 Alta. L.R.(5th) 345; 73 M.V.R.(5th) 115; 2008 ABQB 545, folld. [para. 23].

R. v. Townsend (D.T.) (2008), 432 A.R. 183; 424 W.A.C. 183; 172 C.R.R.(2d) 21; 58 M.V.R.(5th) 10; 2008 ABCA 44, dist. [para. 23].

R. v. Orbanski (C.); R. v. Elias (D.J.), [2005] 2 S.C.R. 3; 335 N.R. 342; 195 Man.R.(2d) 161; 351 W.A.C. 161; 2005 SCC 37, refd to. [para. 23].

R. v. Milne (R.S.) (1996), 90 O.A.C. 348; 107 C.C.C.(3d) 118; 48 C.R.(4th) 182; 35 C.R.R.(2d) 257; 18 M.V.R.(3d) 161 (C.A.), leave to appeal refused (1996), 207 N.R. 78; 97 O.A.C. 159 (S.C.C.), refd to [para. 23].

R. v. Stellato (T.) (1993), 61 O.A.C. 217; 78 C.C.C.(3d) 380; 18 C.R.(4th) 127; 43 M.V.R.(2d) 120; 12 O.R.(3d) 90 (C.A.), refd to. [para. 24].

R. v. Andrews (M.A.) (1996), 178 A.R. 182; 110 W.A.C. 182; 104 C.C.C.(3d) 392; 46 C.R.(4th) 74; 20 M.V.R.(3d) 140; 1996 ABCA 23, leave to appeal refused (1996), 205 N.R. 158 (S.C.C.), refd to. [para. 24].

R. v. Ellerman (B.H.), [2000] 6 W.W.R. 704; 255 A.R. 149; 220 W.A.C. 149 (C.A.), refd to. [para. 33].

R. v. Quenneville (M.), [2009] O.A.C. Uned. 211; 2009 ONCA 325, refd to. [para. 33].

R. v. Brode (K.) (2012), 289 O.A.C. 92; 286 C.C.C.(3d) 347; 2012 ONCA 140, refd to. [para. 33].

R. v. Emery (J.R.), [2012] A.R. Uned. 802; 104 W.C.B.(2d) 1277; 39 M.V.R.(6th) 274; 2012 ABPC 326, refd to. [para. 36].

R. v. Flores (J.A.) (2007), 427 A.R. 337; 2007 ABQB 528, folld. [para. 40].

R. v. Phipps (A.C.) (2010), 506 A.R. 313; 2010 ABQB 661, folld. [para. 40].

R. v. Kangas (N.G.) (2013), 565 A.R. 67; 47 M.V.R.(6th) 230; 107 W.C.B.(2d) 796; 2013 CarsewllAlta 1193; 2013 ABQB 383, refd to. [para. 44].

R. v. Adams (1986), 51 Sask.R. 161; 30 C.C.C.(3d) 469; 17 W.C.B. 326 (C.A.), refd to. [paras. 57, 86].

R. v. P.K. et al., [2005] A.R. Uned. 143; 2005 ABPC 10, refd to. [para. 57].

Sowa v. British Columbia (Attorney General) et al., [2003] B.C.T.C. 1866; 60 W.C.B.(2d) 92; 2003 BCSC 1866, refd to. [para. 57].

R. v. Horne & Pitfield Foods Ltd. (1982), 39 A.R. 428; 69 C.C.C.(2d) 240; 20 Alta. L.R.(2d) 289 (C.A.), refd to. [para. 57].

R. v. Hruby (1980), 19 A.R. 230; 11 Alta. L.R.(2d) 347; 4 M.V.R. 192; 1980 CarswellAlta 4 (C.A.), refd to. [para. 60].

R. v. Novis (1987), 22 O.A.C. 244; 36 C.C.C.(3d) 275; 50 M.V.R. 1; 1987 CarswellOnt 57 (C.A.), refd to. [para. 60].

R. v. Leavitt (1972), 5 C.C.C.(2d) 141; 16 C.R.N.S. 304; 1 W.W.R. 593; 1971 CarswellAlta 108 (S.C.), refd to. [para. 60].

R. v. Harrison, [1977] 1 S.C.R. 238; 8 N.R. 47, refd to. [para. 60].

R. v. Cleveland (1986), 49 Sask.R. 96; 1986 CarswellSask 128 (Q.B.), refd to. [para. 60].

R. v. Spanos (R.), [2007] O.A.C. Uned. 106; 44 M.V.R.(5th) 84; 73 W.C.B.(2d) 322; 2007 CarswellOnt 1857 (C.A.), refd to. [para. 60].

R. v. Wiens (1970), 74 W.W.R. 639, refd to. [para. 77].

Metropolitan Borough and Town Clerk of Lewisham v. Roberts, [1949] 2 K.B. 608; [1949] 1 All E.R. 815 (C.A.), refd to. [para. 77].

Statutes Noticed:

Criminal Code, R.S.C. 1985, c. C-46, sect. 2 [para. 62]; sect. 254(1) [para. 61].

Interpretation Act, R.S.C. 1985, c. I-21, sect. 24 [para. 65].

Interpretation Act, R.S.A. 2000, c. I-8, sect. 21 [para. 71].

Counsel:

R. Jenkins, for the Crown;

G. Worobec, for the accused.

This matter was heard on June 22, 2012, January 16 and August 13, 2013, before Dunnigan, P.C.J., of the Alberta Provincial Court, who delivered the following decision at Calgary, Alberta, on January 10, 2014.