R. v. Petrin (P.), (2013) 553 A.R. 28

• Judge: Charbonneau, J.A.
• Court: Court of Appeal (Northwest Territories)
• Case Date: April 26, 2013
• Jurisdiction: Northwest Territories
• Citations: (2013), 553 A.R. 28

R. v. Petrin (P.) (2013), 553 A.R. 28; 583 W.A.C. 28 (CA)

MLB headnote and full text

Temp. Cite: [2013] A.R. TBEd. MY.168

Paul Petrin (appellant/applicant) v. Her Majesty the Queen (respondent)

(A-1-AP 2013000001; 2013 NWTCA 1)

Indexed As: R. v. Petrin (P.)

Northwest Territories Court of Appeal

Charbonneau, J.A.

April 26, 2013.

Summary:

The accused was charged with impaired driving and driving while having an excessive blood-alcohol level.

The Northwest Territories Territorial Court, in a decision reported at [2011] Northwest Terr. Cases Uned. 21, found the accused guilty of driving while having an excessive blood-alcohol level. The accused appealed.

The Northwest Territories Supreme Court, in a decision reported at [2012] Northwest Terr. Cases Uned. 60, dismissed the appeal. The accused applied for leave to appeal.

The Northwest Territories Court of Appeal, per Charbonneau, J.A., dismissed the application.

Criminal Law - Topic 1374

Motor vehicles - Impaired driving - Breathalyzer or blood sample - Evidence and certificate evidence - Evidence tending to show - The accused was charged with impaired driving offences - The trial judge accepted that the accused suffered from acid reflux and was experiencing symptoms on the evening in question, but assigned no weight to the evidence of a doctor (Malicky) respecting the effects of acid reflux - The judge concluded that there was no evidence to rebut the presumption in s. 258(1)(c) of the Criminal Code and found the accused guilty of driving while having an excessive blood-alcohol level - An appeal was dismissed - The accused applied for leave to appeal, asserting that the trial judge and the summary conviction appeal judge erred in interpreting ss. 258(1)(c), 258(1)(d) and 258(1)(d.01) - The Northwest Territories Court of Appeal, per Charbonneau, J.A., denied leave to appeal - It was open to the trial judge to attach limited weight to Malicky's acid reflux evidence - There was no basis for the summary conviction appeal judge correctly to interfere with those findings of fact - The trial judge's acceptance that the accused tasted his stomach contents in his mouth was not the same as accepting that there was alcohol in the contents at that point or that alcohol would necessarily have been brought up in his mouth as a result of his symptoms - The judge found that there was no reliable evidence establishing that crucial link - In any event, the issue had no implications beyond the immediate case - The case law, although limited, accepted that evidence about acid reflux and its effects could constitute "evidence tending to show" - The different outcomes of the cases flowed from the differences in the evidence adduced and each judge's assessment of the evidence - See paragraphs 39 to 51.

Criminal Law - Topic 7602

Summary conviction proceedings - Appeal to a court of appeal - Requirement of leave - [See Criminal Law - Topic 1374 ].

Criminal Law - Topic 7602

Summary conviction proceedings - Appeal to a court of appeal - Requirement of leave - The Northwest Territories Court of Appeal, per Charbonneau, J.A., stated that while the wording of s. 83 of the Criminal Code suggested that the court had unfettered discretion to grant leave to appeal from a summary conviction appeal decision, it was well established that not every issue of law justified granting leave - The court stated that "... The power to grant leave to appeal to this Court in summary conviction proceedings reaches two categories of cases. The first category is where there is at least an arguable case on an issue of law that has significance to the administration of justice beyond the immediate case. The second is where there appears to be a clear error of law. ..." - See paragraphs 25 to 29.

Criminal Law - Topic 7602

Summary conviction proceedings - Appeal to a court of appeal - Requirement of leave - The accused was charged with impaired driving offences - The trial judge accepted that the accused suffered from acid reflux and was experiencing symptoms on the evening in question, but assigned no weight to the evidence of a doctor (Malicky) respecting the effects of acid reflux - The judge concluded that there was no evidence to rebut the presumption in s. 258(1)(c) of the Criminal Code and found the accused guilty of driving while having an excessive blood-alcohol level - The accused's summary conviction appeal was dismissed on July 19, 2012 - The formal judgment was filed on August 17, 2012, but due to an administrative error, was not received by the accused's counsel until November 7, 2012 - The accused applied for leave to appeal - He asserted that the appeal period ran from November 7, 2012, and he was entitled to rely on R. v. St-Onge Lamoureux (A.) (S.C.C.) as it was released on November 12, 2012 before the appeal period's expiry - St.-Onge Lamoureux decided that two requirements in s. 258(1)(c) were unconstitutional and the presumption could be rebutted by adducing evidence tending to show that the breathalyzer instrument malfunctioned or was operated improperly - The Northwest Territories Court of Appeal, per Charbonneau, J.A., held that it was unnecessary to decide when the appeal period started to run - The trial judge's and the summary conviction appeal judge's decisions focussed on whether there was evidence tending to show that the breathalyzer malfunctioned due to the presence of alcohol in the accused's mouth - Any references to the unconstitutional parts of s. 258(1)(c) were made in the context of referring to the law as it then existed - Accordingly, St-Onge Lamoureux had no effect on the outcome of the trial or the appeal and had no bearing on the leave application - See paragraphs 30 to 38.

Cases Noticed:

R. v. St-Onge Lamoureux (A.) (2012), 436 N.R. 199; 2012 SCC 57, refd to. [para. 5].

R. v. R.R. (2008), 238 O.A.C. 242; 90 O.R.(3d) 641; 2008 ONCA 497, refd to. [para. 27].

R. v. Chaluk (K.W.) (1998), 237 A.R. 366; 197 W.A.C. 366; 1998 ABCA 253, refd to. [para. 28].

R. v. Coffey, 2013 ONCJ 178, refd to. [para. 46].

R. v. Lynch (I.T.) (2011), 311 Nfld. & P.E.I.R. 354; 967 A.P.R. 354; 14 M.V.R.(6th) 146 (N.L. Prov. Ct.), refd to. [para. 49].

Statutes Noticed:

Criminal Code, R.S.C. 1985, c. C-46, sect. 839 [para. 25].

Counsel:

Shawn Beaver, for the appellant/applicant;

Jennifer Bond, for the respondent.

This application was heard by Charbonneau, J.A., of the Northwest Territories Court of Appeal, who delivered the following memorandum of judgment at Yellowknife, Northwest Territories, on April 26, 2013.