R. v. Redford (B.S.), 2012 ABQB 768

• Judge: Macklin, J.
• Court: Court of Queen's Bench of Alberta (Canada)
• Case Date: November 22, 2012
• Citations: 2012 ABQB 768;(2012), 549 A.R. 183 (QB)

R. v. Redford (B.S.) (2012), 549 A.R. 183 (QB)

MLB headnote and full text

Temp. Cite: [2013] A.R. TBEd. JA.051

Her Majesty the Queen (respondent) v. Brandon Sutherland Redford (appellant)

(100590421S1; 2012 ABQB 768)

Indexed As: R. v. Redford (B.S.)

Alberta Court of Queen's Bench

Judicial District of Edmonton

Macklin, J.

December 19, 2012.

Summary:

The accused was charged with impaired driving and driving a motor vehicle while having a blood-alcohol level exceeding the legal limit. The accused challenged the admissibility of the breathalyzer certificate on the grounds that the Crown failed to prove that it gave the accused notice of its intention to introduce the certificate and a copy of the certificate. A voir dire was held.

The Alberta Provincial Court, in a judgment reported (2012), 527 A.R. 389, held that the breathalyzer certificate was admissible. The Crown proved on a balance of probabilities that it gave the accused notice of its intention to introduce the certificate and a copy of the certificate. The accused appealed, arguing that the Crown was required to prove service of the certificate beyond a reasonable doubt.

The Alberta Court of Queen's Bench allowed the appeal. Service of the breathalyzer certificate had to be proved beyond a reasonable doubt. Absent such proof, the court substituted verdicts of acquittal.

Criminal Law - Topic 1374

Motor vehicles - Impaired driving - Breathalyzer or blood sample - Evidence and certificate evidence - The accused challenged the admissibility of a breathalyzer certificate on the grounds that the Crown failed to prove that the accused was given notice of its intention to introduce the certificate and a copy of the certificate, as required by s. 258(7) of the Criminal Code - The police testified that the accused was served with a copy of both documents and that they were explained to him - As the accused was not being immediately released (detained for processing for breach of his recognizance), the documents were packaged with the accused's personal property and inventoried on the Prisoner Property Report, which the accused signed - There was no evidence as to whether the accused's property was or was not returned to him when he was eventually released - The trial judge held that the Crown was not required to prove that the accused was given copies of the documents beyond a reasonable doubt - Proof of the facts in the certificate did not trigger a presumption of "vital issues" relating to the accused's innocence or guilt - Accordingly, the normal standard for admissibility of evidence (proof on a balance of probabilities) applied - The judge was satisfied, on a balance of probabilities, that the police compared copies to the originals, then gave the accused a copy of both the breathalyzer certificate and the notice of the Crown's intention to produce it - The breathalyzer certificate was admissible - The Alberta Court of Queen's Bench held that the Crown was required to prove service of the breathalyzer certificate beyond a reasonable doubt - Absent such proof, the court allowed the accused's conviction appeal and substituted acquittals - The court stated that amendments to the Criminal Code made the issue of service and admissibility of a breathalyzer certificate more of a "vital" issue, because the amendments restricted an accused's ability to rebut the presumption of accuracy, leading to a finding of guilt even where the trier of fact had a reasonable doubt as to the accuracy of the breathalyzer test.

Criminal Law - Topic 1382.1

Motor vehicles - Impaired driving - Breathalyzer - Service of certificate and copy - [See Criminal Law - Topic 1374 ].

Cases Noticed:

Housen v. Nikolaisen et al., [2002] 2 S.C.R. 235; 286 N.R. 1; 219 Sask.R. 1; 272 W.A.C. 1; 2002 SCC 33, refd to. [para. 11].

R. v. Egger (J.H.), [1993] 2 S.C.R. 451; 153 N.R. 272; 141 A.R. 81; 46 W.A.C. 81, refd to. [para. 13].

R. v. Buffalo (M.D.) (2010), 480 A.R. 284; 2010 ABQB 325, affing. (2009), 480 A.R. 268; 2009 ABPC 261, refd to. [para. 17].

R. v. MacKinnon (R.) (2003), 177 O.A.C. 188 (C.A.), refd to. [para. 17].

R. v. Mokelky (D.S.) (2008), 451 A.R. 346; 2008 ABPC 343, refd to. [para. 17].

R. v. Viravong (T.), [2011] A.R. Uned. 486; 2011 ABPC 111, refd to. [para. 17].

R. v. Singh (S.), [2012] A.R. Uned. 287; 2012 ABPC 91, refd to. [para. 17].

R. v. Nelson (D.B.), [2006] A.R. Uned. 162; 2006 ABQB 297, refd to. [para. 17].

R. v. Northcott (J.E.) (1995), 177 A.R. 94 (Q.B.), refd to. [para. 18].

R. v. Duplessis (2006), 49 M.V.R.(5th) 252 (Alta. Q.B.), refd to. [para. 18].

R. v. Nitschke, [2007] A.J. No. 1579 (Q.B.), refd to. [para. 18].

R. v. Mario (M.J.), [2010] A.R. Uned. 812; 2010 ABPC 305, refd to. [para. 18].

R. v. St-Onge Lamoureux (A.) (2012), 436 N.R. 199; 2012 SCC 57, refd to. [para. 20].

R. v. Dineley (S.) (2012), 436 N.R. 59; 297 O.A.C. 50; 2012 SCC 58, refd to. [para. 20].

R. v. Carter (1985), 7 O.A.C. 344; 19 C.C.C.(3d) 174 (C.A.), refd to. [para. 21].

R. v. Stinchcombe, [1991] 3 S.C.R. 326; 130 N.R. 277; 120 A.R. 161; 8 W.A.C. 161, refd to. [para. 34].

R. v. Nicholson (1984), 52 A.R. 132 (C.A.), refd to. [para. 40].

R. v. Cunningham (D.J.) (2006), 401 A.R. 35; 391 W.A.C. 35; 2006 ABCA 345, refd to. [para. 42].

R. v. Hey (W.T.), [2009] A.R. Uned. 65; 81 M.V.R.(5th) 130; 2009 ABCA 204, refd to. [para. 43].

R. v. Good et al. (1983), 44 A.R. 393 (C.A.), refd to. [para. 44].

Authors and Works Noticed:

Boilard, J.-G., Guide to Criminal Evidence (1991), vol. 2, p. 3-267 [para. 36].

MacFarlane, Bruce A., Frater, Robert J., and Proulx, Chantal, Drug Offences in Canada (3rd Ed. 1996), p. 13-14 [para. 37].

Counsel:

B. Tralenberg, for the appellant/accused;

M. Rosborough, for the respondent/Crown.

This appeal was heard on November 22, 2012, before Macklin, J., of the Alberta Court of Queen's Bench, Judicial District of Edmonton, who delivered the following judgment on December 19, 2012.