R. v. So (U.),

• Judge: C,Jeffrey,Rowbotham
• Neutral Citation: 2014 ABCA 451
• Citation: (2014), 588 A.R. 307,2014 ABCA 451,588 AR 307,(2014), 588 AR 307,588 A.R. 307
• Date: 08 October 2014
• Court: Court of Appeal (Alberta)

R. v. So (U.) (2014), 588 A.R. 307; 626 W.A.C. 307 (CA)

MLB headnote and full text

Temp. Cite: [2015] A.R. TBEd. JA.011

Her Majesty the Queen (respondent) v. Udell So (appellant)

(1301-0274-A; 2014 ABCA 451)

Indexed As: R. v. So (U.)

Alberta Court of Appeal

Côté and Rowbotham, JJ.A., and Jeffrey, J.(ad hoc)

December 23, 2014.

Summary:

The accused was charged with driving while "over .08" contrary to s. 253(1)(b) of the Criminal Code. At trial, the accused attempted to displace the Criminal Code presumption that the breathalyzer analysis was accurate. He argued that the approved breath sample instrument (an Intoxilyzer 5000C) was improperly operated because the technician did not follow certain procedures in the technician's operator's manual. Specifically, the manual directed technicians to "make sure" a test subject's mouth was free of mouth alcohol before taking a breath sample. Here, the technician allegedly failed to keep the accused under observation for 20 minutes prior to testing and thus failed to ensure that his mouth remained free of alcohol which may have entered his mouth due to burping as required by the manual.

The Alberta Provincial Court, in a decision reported [2013] A.R. Uned. 316, convicted the accused, holding that he failed to establish evidence to the contrary on the balance of probabilities and, therefore, failed to rebut the presumption of accuracy. Absent that rebuttal, the certificate of analysis stood as conclusive evidence that the accused operated his motor vehicle while having an excessive blood alcohol content. The accused appealed, arguing that there was reasonable doubt that the breathalyzer instrument was properly operated due to the qualified technician failing to follow the testing procedure set out in operator's manual.

The Alberta Court of Queen's Bench (summary conviction appeal court), in a decision reported 570 A.R. 379, dismissed the appeal. The accused applied for leave to appeal.

The Alberta Court of Appeal, per O'Ferrall, J.A., in a decision reported 569 A.R. 59; 606 W.A.C. 59, granted leave. The appeal proceeded.

The Alberta Court of Appeal dismissed the appeal.

Criminal Law - Topic 11

Interpretation of Criminal Code of Canada - General principles - The Alberta Court of Appeal stated that "Issues of criminal statutory interpretation, such as the interpretation and legal effect of the phrase 'evidence tending to show' as used in s 258(1)(c) [of the Criminal Code], are questions of law for which the standard of review is correctness ..." - See paragraph 23.

Criminal Law - Topic 1374

Motor vehicles - Impaired driving - Breathalyzer or blood sample - Evidence and certificate evidence (incl. evidence tending to show) - An accused appealed his .08 conviction, claiming that because he was burping, non-compliance with the 20-minute delay period specified in the instrument's operation manual was "evidence tending to show" improper operation of the breathalyzer machine and raised a reasonable doubt sufficient to rebut the presumption that the instrument's results were accurate (presumption of accuracy) - The technician was unaware of the burping - The Alberta Court of Appeal stated that to rebut the statutory presumptions an accused had to establish to the reasonable doubt standard: (a) a deficiency in the functioning or operation of the instrument; and (b) that the deficiency directly related to the reliability of the breath test results - The accused failed to raise a reasonable doubt on both (a) and (b) above, that there was "evidence tending to show ... that the approved instrument was ... operated improperly" - Therefore the appeal was dismissed.

Criminal Law - Topic 1374

Motor vehicles - Impaired driving - Breathalyzer or blood sample - Evidence and certificate evidence (incl. evidence tending to show) - The Alberta Court of Appeal stated that in light of the decision in R. v. St-Onge Lamoureaux (SCC 2012), "'[T]he only evidence that can be tendered to raise a reasonable doubt about the reliability of breathalyzer test results is now evidence that the instrument was malfunctioning or was operated improperly ... The burden on the accused has thus been increased, as he or she can no longer ask the judge to draw an inference of malfunction or improper operation from indirect evidence by raising a Carter defence. Evidence related directly to the instrument itself is now required' ..." - See paragraph 13.

Criminal Law - Topic 1374

Motor vehicles - Impaired driving - Breathalyzer or blood sample - Evidence and certificate evidence (incl. evidence tending to show) - The Alberta Court of Appeal stated that the standard of proof for "evidence tending to show" as that phrase was used in s. 258(1)(c) of the Criminal Code was reasonable doubt - The "evidence tending to show" did not have to come from an expert - It could come from a Crown witness - See paragraphs 15 and 16.

Cases Noticed:

R. v. St-Onge Lamoureux (A.), [2012] 3 S.C.R. 187; 436 N.R. 199; 2012 SCC 57, refd to. [para. 11].

Canada (Attorney General) v. Mossop, [1993] 1 S.C.R. 554; 149 N.R. 1, refd to. [para. 23].

R. v. Kasim (R.Y.) (2011), 515 A.R. 254; 532 W.A.C. 254; 2011 ABCA 336, refd to. [para. 23].

R. v. Bernshaw (N.), [1995] 1 S.C.R. 254; 176 N.R. 81; 53 B.C.A.C. 1; 87 W.A.C. 1, refd to. [para. 25].

R. v. Crosthwait, [1980] 1 S.C.R. 1089; 31 N.R. 603; 25 Nfld. & P.E.I.R. 509; 68 A.P.R. 509; 111 D.L.R.(3d) 431, refd to. [para. 25].

R. v. Petrin (P.) (2013), 553 A.R. 28; 583 W.A.C. 28; 2013 NWTCA 1, refd to. [para. 34].

Statutes Noticed:

Criminal Code, R.S.C. 1985, c. C-46, sect. 258(1)(c) [para. 10].

Authors and Works Noticed:

Canadian Society of Forensic Science, Recommended Standards and Procedures of the Canadian Society of Forensic Science Alcohol Test Committee (2009), 42 Can. Soc. Forensic Sci. J. 1, generally [para. 26].

Counsel:

M.D. Dalidowicz, for the respondent;

T.E. Foster and K.J. Perrin, for the appellant.

This appeal was heard on October 8, 2014, before Côté and Rowbotham, JJ.A., and Jeffrey, J.(ad hoc), of the Alberta Court of Appeal. The following memorandum of judgment was delivered by the court on December 23, 2014.