R. v. Thompson (J.A.C.), (2008) 322 Sask.R. 64 (QB)

• Judge: M-E. Wright, J.
• Court: Court of Queen's Bench of Saskatchewan (Canada)
• Case Date: April 11, 2008
• Jurisdiction: Saskatchewan
• Citations: (2008), 322 Sask.R. 64 (QB);2008 SKQB 159

R. v. Thompson (J.A.C.) (2008), 322 Sask.R. 64 (QB)

MLB headnote and full text

Temp. Cite: [2008] Sask.R. TBEd. AP.039

John Alvin Curtis Thompson (appellant) v. Her Majesty the Queen (respondent)

(2006 QBA No. 15; 2008 SKQB 159)

Indexed As: R. v. Thompson (J.A.C.)

Saskatchewan Court of Queen's Bench

Judicial Centre of Prince Albert

M-E. Wright, J.

April 11, 2008.

Summary:

The accused appealed his summary conviction for having care and control of a motor vehicle while having an excessive blood-alcohol level.

The Saskatchewan Court of Queen's Bench dismissed the appeal.

Courts - Topic 5

Stare decisis - Authority of judicial decisions - Authority and use of precedents - General - The accused appealed his conviction for having care and control of a motor vehicle while having an excessive blood-alcohol level - He argued that the trial judge erred in failing to follow and apply the decision of R. v. Elliott (Sask. Q.B.) - The Crown relied on R. v. Feiifer (Sask. Q.B.) that apparently was not brought to the attention of the summary conviction appeal judge in Elliott - An appeal of Feiffer to the Court of Appeal was dismissed and leave to appeal to the Supreme Court of Canada was refused - There had been no appellate consideration of Elliott - The Saskatchewan Court of Queen's Bench rejected the argument - Failure to follow the doctrine of stare decisis and to apply the ratio decidendi of a superior court decision within the same jurisdiction would ordinarily constitute an error in law - However, in the circumstances of this case, and given the respective judicial histories of Feiffer and Elliott, the court could not conclude that such an error had occurred in this case - See paragraphs 26 to 30.

Criminal Law - Topic 137

General principles - Rights of accused - Right to cross-examine - The accused appealed his conviction for having care and control of a motor vehicle while having an excessive blood-alcohol level - He argued that the trial judge erred by ruling that the accused's counsel would be required to examine the arresting police officer as a witness in chief on a voir dire raising the issue of ss. 8, 9 and 10(b) of the Charter, rather than permitting her the opportunity to cross-examine that witness - The Saskatchewan Court of Queen's Bench rejected the argument - The accused was put to no disadvantage as a result of the manner in which the voir dire proceeded - There was no injustice - Defence counsel's "direct examination" on the voir dire was better described as "cross-examination" - Counsel was afforded great latitude in the nature and scope of her questioning - Further, at the request of the defence, the trial judge delayed his ruling on the Charter application until the conclusion of the trial - In so doing, he also left it open to the defence to request to reopen the voir dire, if, during cross-examination of the officer on the trial proper, further evidence was elicited that would be relevant to the application - See paragraphs 13 to 18.

Criminal Law - Topic 1372

Motor vehicles - Impaired driving - Breathalyzer or blood sample - Demand - Reasonable grounds - [See Criminal Law - Topic 1386.4 ].

Criminal Law - Topic 1386.4

Motor vehicles - Impaired driving - Roadside screening test - Evidence and proof - The accused appealed his conviction for having care and control of a motor vehicle while having an excessive blood-alcohol level - He argued that the arresting officer could not be confident of the veracity of the results of the roadside screening test since she did not first ensure that 15 minutes had elapsed since the accused had last consumed alcohol - Without those results, there were insufficient other indicia of impairment for the officer to make the breathalyzer demand - The accused relied on R. v. Bernshaw (S.C.C.) - The Saskatchewan Court of Queen's Bench rejected the argument - The court held that Bernshaw did not stand for the broad proposition advanced by the accused - Rather, absent evidence that would suggest otherwise, a police officer was entitled to rely on the results of a roadside screening test to support an opinion that reasonable and probable grounds existed to make a demand for a breathalyzer test - Here, there was no evidence which would call into question the reliability of the roadside screening test result - There was no evidence of recent consumption of liquor which would affect the result - There was no evidence of burping, belching or regurgitation which could potentially skew the result - Without such evidence, the trial judge did not err in concluding that the officer could rely on the test result, along with other indicia of alcohol consumption, in support of her opinion that she had reasonable and probable grounds to demand that the accused submit to a breathalyzer test - See paragraphs 19 to 24.

Criminal Law - Topic 4485

Procedure - Trial - Adjournments - The accused appealed his conviction for having care and control of a motor vehicle while having an excessive blood-alcohol level - He argued that the trial judge erred in refusing to grant the accused an adjournment of the trial to permit the accused to call an auxiliary constable - The Saskatchewan Court of Queen's Bench rejected the argument - In all of these circumstances, including the time that had elapsed in having this matter proceed to trial, the numerous times that trial dates had been set, the timing of the request for the adjournment, the fact that the accused was aware, or should have been aware, of the nature of the Crown's case, and that the last adjournment had been peremptory on the defence, it could not be said that the trial judge's discretionary decision not to grant yet another adjournment was not taken judicially - See paragraphs 7 to 11.

Criminal Law - Topic 5416

Evidence and witnesses - Witnesses - Cross-examination of Crown witnesses - [See Criminal Law - Topic 137 ].

Cases Noticed:

R. v. Elliott (D.W.) (2005), 268 Sask.R. 317; 2005 SKQB 376, refd to. [para. 1].

R. v. Leask (C.R.) (2005), 268 Sask.R. 135; 2005 SKQB 315, refd to. [para. 9].

R. v. Houben (K.) (2006), 289 Sask.R. 118; 382 W.A.C. 118; 2006 SKCA 129, refd to. [para. 20].

R. v. Doell (Q.) (2007), 293 Sask.R. 262; 397 W.A.C. 262; 2007 SKCA 61, refd to. [para. 20].

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. 22].

R. v. Uphill (F.) (1995), 133 Sask.R. 194 (Q.B.), refd to. [para. 27].

R. v. Butchko (C.L.) (2004), 250 Sask.R. 222; 2004 SKQB 140, refd to. [para. 27].

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.), refd to. [para. 28].

Counsel:

T.R. Olenchuk, for the appellant;

J.E. Syrnick, for the respondent.

This appeal was heard by M-E. Wright, J., of the Saskatchewan Court of Queen's Bench, Judicial Centre of Prince Albert, who delivered the following judgment on April 11, 2008.