R. v. Pelech (T.G.), (2011) 510 A.R. 323

• Judge: Berger, J.A.
• Court: Court of Appeal (Alberta)
• Case Date: July 13, 2011
• Citations: (2011), 510 A.R. 323;2011 ABCA 229

R. v. Pelech (T.G.) (2011), 510 A.R. 323; 527 W.A.C. 323 (CA)

MLB headnote and full text

Temp. Cite: [2011] A.R. TBEd. JL.150

Her Majesty the Queen (applicant) v. Travis Gregory Pelech (respondent)

(1103-0103-A; 2011 ABCA 229)

Indexed As: R. v. Pelech (T.G.)

Alberta Court of Appeal

Berger, J.A.

July 25, 2011.

Summary:

The accused was convicted of impaired driving. The accused appealed, arguing that the judge failed to apply the rule in Hodge's case.

The Alberta Court of Queen's Bench, in a decision reported 507 A.R. 389, allowed the appeal. The Crown applied for leave to appeal.

The Alberta Court of Appeal, per Berger, J.A., granted leave to appeal on the Hodge's case issue.

Criminal Law - Topic 4358

Procedure - Charge or directions - Jury or judge alone - Directions regarding circumstantial evidence - [See Evidence - Topic 306 ].

Evidence - Topic 306

Circumstantial evidence - Rule in Hodge's Case - Whether evidence consistent with other rational conclusions - The accused was stopped by police after he drove out of the parking lot of a tap house with no lights on and went through three stop signs - The police had difficulty stopping the accused although he ultimately pulled over - Indicia of impairment were present - The accused was convicted of impaired driving - He appealed, arguing that the judge failed to apply the rule in Hodge's case - The Alberta Court of Queen's Bench, applying the standard of correctness, allowed the appeal - The trial judge failed to consider the rule in Hodge's case thereby committing the error of failing to consider whether the inference of impairment by alcohol was the only rational inference that could be drawn from the evidence - Here, although the trial judge did not have to refer to the rule in Hodge's case by name, and did not have to use any dedicated formula in discussing the way in which he was assessing circumstantial evidence, he was obliged to hold the rule in Hodge's case in contemplation while coming to his decision - The Crown applied for leave to appeal - The Alberta Court of Appeal, per Berger, J.A., granted leave to appeal.

Cases Noticed:

R. v. Power (K.M.) (2002), 311 A.R. 27; 2002 ABQB 153, refd to. [para. 4].

R. v. Griffin (J.) et al., [2009] 2 S.C.R. 42; 388 N.R. 334; 2009 SCC 28, refd to. [para. 5].

R. v. Cooper, [1978] 1 S.C.R. 860; 14 N.R. 181, refd to. [para. 5].

Hodge's Case, Re (1838), 2 Lew. 227; 168 E.R. 1136, refd to. [para. 8].

R. v. Eastwood (J.A.) (2008), 433 A.R. 239; 429 W.A.C. 239; 2008 ABCA 181, refd to. [para. 8].

R. v. W.R.P. (2007), 412 A.R. 176; 404 W.A.C. 176; 2007 ABCA 187, refd to. [para. 8].

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. 9].

R. v. Walker (B.G.), [2008] 2 S.C.R. 245; 375 N.R. 228; 310 Sask.R. 305; 423 W.A.C. 305; 2008 SCC 34, refd to. [para. 11].

Counsel:

J.R. Russell, for the applicant;

L.L. Garcia, for the respondent.

This application was heard on July 13, 2011, by Berger, J.A., of the Alberta Court of Appeal, who filed the following reasons for judgment at Edmonton, Alberta, on July 25, 2011.