R. v. Shim (G.C.), [2015] A.R. TBEd. OC.080

• Judge: Semenuk, P.C.J.
• Court: Provincial Court of Alberta (Canada)
• Case Date: October 13, 2015
• Citations: [2015] A.R. TBEd. OC.080;2015 ABPC 217

R. v. Shim (G.C.), [2015] A.R. TBEd. OC.080

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Temp. Cite: [2015] A.R. TBEd. OC.080

Her Majesty the Queen v. Gabriel Chae Shim

(150139012P1; 2015 ABPC 217)

Indexed As: R. v. Shim (G.C.)

Alberta Provincial Court

Semenuk, P.C.J.

October 13, 2015.

Summary:

The accused was charged with driving while over 80 and impaired driving. Defence counsel filed a Charter notice alleging a violation of s. 8 of the Charter. More specifically, he submitted that the breath samples were not taken from the accused "as soon as practicable" as required by ss. 254(3)(a) and 258(1)(c)(ii) of the Criminal Code and the Certificate of Qualified Technician ought to be excluded from evidence under s. 24(2) of the Charter. Aside from the s. 8 Charter issue, defence counsel submitted that the Crown had not proven beyond a reasonable doubt that the breath samples were taken from the accused "as soon as practicable" as required by ss. 254(3)(a) and 258(1)(c)(ii) of the Code, and as a result, the Crown should lose the benefit of the "presumption of identity" relating the accused's blood/alcohol level at the time of testing back to the time of driving. Finally, defence counsel submitted that the identity of the accused as being the offender on the date in question had not been proven beyond a reasonable doubt.

The Alberta Provincial Court found a s. 8 Charter violation in this case. However, pursuant to s. 24(2) of the Charter, the court declined to exclude the Certificate of Qualified Technician from evidence. The court also rejected the alternative argument as not being available to the accused as a remedy in law. The court also rejected the argument that the identity of the accused as being the offender had not been proven beyond a reasonable doubt. The accused was found guilty of the over 80 charge. He was found not guilty on the impaired driving charge.

Civil Rights - Topic 1217

Security of the person - Lawful or reasonable search - What constitutes unreasonable search and seizure - See paragraphs 69 to 78.

Civil Rights - Topic 1404.1

Security of the person - Law enforcement - Breath or blood samples - See paragraphs 69 to 78.

Civil Rights - Topic 8368

Canadian Charter of Rights and Freedoms - Denial of rights - Remedies - Exclusion of evidence - See paragraphs 79 to 86.

Criminal Law - Topic 1374

Motor vehicles - Impaired driving - Breathalyzer or blood sample - Evidence and certificate evidence (incl. evidence tending to show) - See paragraphs 87 to 88.

Criminal Law - Topic 1379.2

Offences against person and reputation - Motor vehicles - Impaired driving - Breathalyzer - Admissibility where Charter right breached - See paragraphs 79 to 86.

Criminal Law - Topic 5253

Evidence and witnesses - Identification - Proof of - See paragraphs 89 to 93.

Counsel:

M. Kai, for the Crown;

G. Dunn, for the accused.

This matter was heard before Semenuk, P.C.J., of the Alberta Provincial Court, who delivered the following decision on October 13, 2015.