R. v. Shambel (J.), 2009 SKPC 41

• Judge: Koskie, P.C.J.
• Court: Provincial Court of Saskatchewan (Canada)
• Case Date: March 16, 2009
• Jurisdiction: Saskatchewan
• Citations: 2009 SKPC 41;(2009), 330 Sask.R. 140 (PC)

R. v. Shambel (J.) (2009), 330 Sask.R. 140 (PC)

MLB headnote and full text

Temp. Cite: [2009] Sask.R. TBEd. MR.056

Her Majesty the Queen v. Jason Shambel

(Information No. 24311026; 2009 SKPC 41)

Indexed As: R. v. Shambel (J.)

Saskatchewan Provincial Court

Koskie, P.C.J.

March 16, 2009.

Summary:

The accused was charged with impaired driving offences.

The Saskatchewan Provincial Court found the accused guilty and entered a judicial stay on one of the two counts.

Criminal Law - Topic 1374

Motor vehicles - Impaired driving - Breathalyzer or blood sample - Evidence and certificate evidence (incl. evidence tending to show) - The accused provided two breath samples which resulted in readings of 130 mg of alcohol per 100 ml of blood and 120 mg of alcohol in 100 ml of blood - The defence evidence was directed toward building a foundation for an evidence to the contrary defence, namely, a straddle reading - Several witnesses verified the amount of alcohol the accused had consumed while in their company - The defence expert concluded there was a 90% certainty that the accused's blood-alcohol content was below the legal limit at the time he was stopped by police - The Saskatchewan Provincial Court, applying R. v. Eddingfield (2008 SKCA), held that the straddle reading did not constitute a defence in Saskatchewan - The court also noted that the defence expert's evidence was based on an estimate of what the accused drank from a 40 ounce bottle of vodka when ice fishing and would not form a reliable basis to constitute evidence to the contrary - The expert opinion was only as good as the estimate of unmeasured alcohol consumption - See paragraphs 8 to 13.

Criminal Law - Topic 1374

Motor vehicles - Impaired driving - Breathalyzer or blood sample - Evidence and certificate evidence (incl. evidence tending to show) - A Certificate of Analyses stated that the first sample was taken at 0222 hours and the second sample was taken at 0243 hours - The defence submitted that the Certificate should show the time of completion of the first sample and the time of the commencement of the second sample to clearly demonstrate that a 15 minute interval elapsed between the taking of the two samples - The defence relied on R. v. Elliott (2005 SKQB) where the court held that the Certificate of Analyses had to show the time of the commencement of the taking of the second sample, as that was the only way in which it could be properly demonstrated that at least a 15 minute interval had elapsed between the two samples as required pursuant to s. 258(1)(c)(ii) of the Criminal Code - The Saskatchewan Provincial Court rejected the defence argument - In this case, the Certificate used the words "was taken at" for both the first and second samples - That wording mirrored the wording set out in the Criminal Code - The court noted that there had been no appellate consideration of Elliott as distinguished from R. v. Feiffer and R. v. Scott - The court stated that it was bound by the decisions in R. v. Feiffer, R.v. Scott and R. v. Marcellus - See paragraphs 14 to 39.

Cases Noticed:

R. v. Eddingfield (R.G.) (2008), 311 Sask.R. 61; 428 W.A.C. 61; 2008 SKCA 84, appld. [para. 12].

R. v. Elliott (D.W.) (2005), 268 Sask.R. 317; 2005 SKQB 376, not folld. [para. 18].

R. v. Hardy (T.) (2008), 321 Sask.R. 156; 2008 SKPC 132, consd. [para. 19].

R. v. Gunn (G.A.) (2009), 329 Sask.R. 106; 2009 SKQB 57, refd to. [para. 20].

R. v. Feiffer (1984), 35 Sask.R. 196 (Q.B.), affd. [1985] S.J. No. 334 (C.A.), leave to appeal refused (1985), 60 N.R. 240; 41 Sask.R. 160 (S.C.C.), folld. [para. 38].

R. v. Taylor (1983), 22 M.V.R. 295 (Ont. C.A.), not folld. [para. 21].

R. v. Scott (1984), 36 Sask.R. 216; 1984 CarswellSask 20 (C.A.), folld. [para. 23].

R. v. Thompson (J.A.C.) (2008), 322 Sask.R. 64; 2008 SKQB 159, folld. [para. 24].

R. v. Kornak (1984), 51 A.R. 93; 1984 CarswellAlta 18 (C.A.), folld. [para. 28].

R. v. Hepditch (L.) (1989), 75 Nfld. & P.E.I.R. 201; 234 A.P.R. 201; 1989 CarswellNfld 1 (C.A.), folld. [para. 28].

R. v. Hache (1985), 63 N.B.R.(2d) 72; 164 A.P.R. 72; 1985 CarswellNB 5 (C.A.), folld. [para. 28].

R. v. DeCoste (1984), 65 N.S.R.(2d) 61; 147 A.P.R. 61; 1984 CarswellNS 142 (C.A.), folld. [para. 28].

R. v. Moore, 1984 CarswellBC 487 (C.A.), folld. [para. 28].

R. v. Guichon, 1994 CarswellBC 3068 (Prov. Ct.), folld. [para. 34].

R. v. Marcellus (G.W.) (1999), 214 N.B.R.(2d) 72; 547 A.P.R. 72; 1999 CarswellNB 602 (C.A.), folld. [para. 35].

R. v. Eggen (1988), 66 Sask.R. 124; 1988 CarswellSask 7 (C.A.), consd. [para. 36].

Statutes Noticed:

Criminal Code, R.S.C. 1985, c. C-46, sect. 258(1)(c)(ii) [para. 18].

Authors and Works Noticed:

Kenkel, Joseph F., Impaired Driving In Canada, p. 313 [para. 11].

Counsel:

Darren Grindle, for the Crown;

Dave Kreklewich, for the accused.

This matter was heard before Koskie, P.C.J., of the Saskatchewan Provincial Court, who delivered the following judgment on March 16, 2009.