R. v. Redford (B.S.),

• Judge: C,Hillier,Paperny
• Neutral Citation: 2014 ABCA 336
• Subject Matter: CRIMINAL LAW
• Citation: (2014), 584 A.R. 284,2014 ABCA 336,584 AR 284,(2014), 584 AR 284,584 A.R. 284
• Date: 22 October 2014
• Court: Court of Appeal (Alberta)

R. v. Redford (B.S.) (2014), 584 A.R. 284; 623 W.A.C. 284 (CA)

MLB headnote and full text

Temp. Cite: [2014] A.R. TBEd. OC.105

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

(1303-0016-A; 2014 ABCA 336)

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

Alberta Court of Appeal

Côté and Paperny, JJ.A., and Hillier, J.(ad hoc)

October 22, 2014.

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, in a judgment reported (2012), 549 A.R. 183, allowed the appeal. Service of the notice and a copy of the certificate had to be proved beyond a reasonable doubt. Absent such proof, the court substituted verdicts of acquittal. The Crown appealed.

The Alberta Court of Appeal, Hillier, J.(ad hoc), dissenting, allowed the appeal and restored the conviction. The standard of proving service of the notice and the certificate was on a balance of probabilities, not beyond a reasonable doubt. The preconditions to the admissibility of a certificate (including service of the notice) were to be established on a balance of probabilities. In any event, service was proved both on a balance of probabilities and beyond a reasonable doubt.

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 service 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 summary conviction appeal court held that the Crown was required to prove service of the notice and certificate beyond a reasonable doubt - Absent such proof, the court allowed the accused's conviction appeal and substituted acquittals - The Alberta Court of Appeal allowed the Crown's appeal - The standard of proving service of the notice and certificate was on a balance of probabilities, not beyond a reasonable doubt - The court stated that "preliminary matters governing the use of evidence are established on a balance of probabilities, even where the evidence is crucial to a finding of guilt. In the absence of compelling policy reasons that make a particular matter a 'vital issue', there is no principled reason to depart from that general rule" - Service was a procedural matter respecting admissibility - It did not trigger the presumption - The preconditions to the admissibility of a certificate were to be proved on a balance of probabilities - In any event, service was proved both on a balance of probabilities and beyond a reasonable doubt.

Criminal Law - Topic 1382.1

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

Cases Noticed:

R. v. Garson, [1982] S.J. No. 366 (Q.B.), refd to. [para. 7].

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. 8].

R. v. St-Onge Lamoureux (A.) (2012), 436 N.R. 199; 2012 SCC 57, refd to. [para. 8].

R. v. Morin, [1988] 2 S.C.R. 345; 88 N.R. 161; 30 O.A.C. 81, refd to. [para. 13].

R. v. Evans (C.D.), [1993] 3 S.C.R. 653; 158 N.R. 278; 145 A.R. 81; 55 W.A.C. 81, refd to. [para. 14].

R. v. Arp (B.), [1998] 3 S.C.R. 339; 232 N.R. 317; 114 B.C.A.C. 1; 186 W.A.C. 1, refd to. [para. 14].

R. v. Sekhon (A.S.), [2014] 1 S.C.R. 272; 454 N.R. 41; 351 B.C.A.C. 1; 599 W.A.C. 1; 2014 SCC 15, refd to. [para. 14].

R. v. White (R.G.) and Côté (Y.), [1998] 2 S.C.R. 72; 227 N.R. 326; 112 O.A.C. 1, refd to. [para. 15].

R. v. Singh (J.) (2007), 369 N.R. 1; 249 B.C.A.C. 1; 414 W.A.C. 1; 2007 SCC 48, refd to. [para. 16].

R. v. L.T.H. (2008), 379 N.R. 247; 268 N.S.R.(2d) 200; 857 A.P.R. 200; 2008 SCC 49, refd to. [para. 16].

R. v. Northcott (J.E.) (1995), 177 A.R. 94 (Q.B.), refd to. [para. 28].

R. v. Duplessis, [2006] A.J. No. 660 (Q.B.), refd to. [para. 28].

R. v. Kurich (A.), [2007] A.R. Uned. 66; 2007 ABPC 11, refd to. [para. 28].

R. v. Nitschke, 2007 Carswell Alta 1874 (Q.B.), disagreed with [para. 28].

R. v. Buffalo (M.D.) (2009), 480 A.R. 268; 13 Alta. L.R.(5th) 180; 2009 ABPC 261, affd. (2010), 480 A.R. 284; 2010 ABQB 325, refd to. [para. 29].

R. v. Johns (B.C.) (1994), 155 A.R. 231; 73 W.A.C. 231 (C.A.), refd to. [para. 31].

R. v. MacKinnon (R.) (2003), 177 O.A.C. 188 (C.A.), refd to. [para. 32].

R. v. Good, Schmidt and Winnipeg; R. v. Neubert (1983), 44 A.R. 393 (C.A.), refd to. [para. 40].

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. 41].

Counsel:

J.R. Russell, for the appellant;

D.F. Bullerwell, for the respondent.

This appeal was heard on September 3, 2014, at Edmonton, Alberta, before Côté and Paperny, JJ.A., and Hillier, J.(ad hoc), of the Alberta Court of Appeal.

On October 22, 2014, the judgment of the Court of Appeal was delivered and the following reasons were filed:

Paperny, J.A. (Côté, J.A., concurring) - see paragraphs 1 to 43;

Hillier, J.(ad hoc), dissenting - see paragraphs 44 to 58.