R. v. Turchet (T.C.), 2013 ABQB 609

• Judge: Millar, J.
• Court: Court of Queen's Bench of Alberta (Canada)
• Case Date: August 07, 2013
• Citations: 2013 ABQB 609;(2013), 571 A.R. 386 (QB)

R. v. Turchet (T.C.) (2013), 571 A.R. 386 (QB)

MLB headnote and full text

Temp. Cite: [2013] A.R. TBEd. OC.134

Her Majesty the Queen (respondent) v. Thor Cavaliere Turchet (appellant)

(100840297S1; 2013 ABQB 609)

Indexed As: R. v. Turchet (T.C.)

Alberta Court of Queen's Bench

Judicial District of Calgary

Millar, J.

October 17, 2013.

Summary:

The accused was convicted of driving with a blood-alcohol level over the legal limit. He appealed, arguing that the trial judge erred in law by (1) referring to the Notice of Intention to Produce the Certificate of Analyses when it had not yet been admitted into evidence; and (2) finding that the Crown had proven beyond a reasonable doubt that notice of the Certificate of Analyses had been given.

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

Criminal Law - Topic 1374

Offences against person and reputation - Motor vehicles - Impaired driving - Breathalyzer or blood sample - Evidence and certificate evidence - The accused was convicted of driving with a blood-alcohol level over the legal limit - He appealed, arguing that the trial judge erred in law by referring to the Certificate of Analysis when it had only been marked for identification and had not yet been admitted into evidence - The Alberta Court of Queen's Bench dismissed the appeal, stating that "I am cognizant of the fact that this document was not read into the record, however I do not believe that this is fatal to the case. In my view the trial judge was entitled to have regard to the Notice document in deciding the admissibility of the document issued to the accused which is comprised of the Certificate and Notice documents. ... I agree with the trial judge's characterization of the Notice and Certificate as two separate documents even though they are on the same page. In determining the document's admissibility the trial judge correctly reviewed the contents of the Notice. A review of the notice portion of the document satisfied the reasonable notice precondition required by section 258(7) [of the Criminal Code] allowing the second document, the Certificate, to be admitted into the trial proper. ... the failure to make the Certificate a formal exhibit is not fatal. The admissibility of the Certificate is clear, supported by the evidence of the arresting constable; Crown and Defence counsel were provided with ample opportunity to question the constable." - See paragraphs 27 to 44.

Criminal Law - Topic 1382.1

Offences against person and reputation - Motor vehicles - Impaired driving - Breathalyzer - Service of certificate and copy - The accused was convicted of driving with a blood-alcohol level over the legal limit - He appealed, arguing that the trial judge erred in law by finding that the Crown had proven beyond a reasonable doubt that notice of the Certificate of Analyses had been given - The accused conceded that he was given a copy of the Certificate, but argued that service was not the same as notice, and the Crown should have adduced evidence to demonstrate that he was provided with an explanation of the Certificate - The Alberta Court of Queen's Bench dismissed the appeal, stating that "I find the combination of the officer's evidence that he filled out the bottom portion of the Certificate paper (the Notice to Produce the Certificate in Court) and gave it to the Appellant, the clear wording of the Notice, and the absence of any evidence establishing the Appellant was misled, confused or prejudice satisfies the Crown's burden to prove notice on either standard. The purpose of the notice is to ensure the accused received adequate warning of the Crown's intention to rely on the Certificate in the prosecution. I find that the Appellant received adequate notice." - See paragraphs 45 to 52.

Criminal Law - Topic 5574

Evidence and witnesses - Exhibits - Admission of exhibits marked only for identification - [See Criminal Law - Topic 1374 ].

Cases Noticed:

R. v. Good et al. (1983), 44 A.R. 393 (C.A.), refd to. [para. 9].

R. v. Farrell (L.A.) (2012), 540 A.R. 34; 2012 ABQB 274, refd to. [para. 14].

R. v. Thivierge (D.A.) (2010), 486 A.R. 366; 2010 ABQB 29, refd to. [para. 14].

Housen v. Nikolaisen et al., [2002] 2 S.C.R. 235; 286 N.R. 1; 219 Sask.R. 1; 272 W.A.C. 1; 2002 SCC 33, refd to. [para. 15].

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. 19].

R. v. Buffalo (M.D.) (2009), 480 A.R. 268; 2009 ABPC 261, affd. (2010), 480 A.R. 284; 2010 ABQB 325, refd to. [para. 22].

R. v. MacKinnon (R.) (2003), 177 O.A.C. 188; 42 M.V.R.(4th) 205 (C.A.), refd to. [para. 22].

R. v. Mokelky (D.S.) (2008), 451 A.R. 346; 2008 ABPC 343, refd to. [para. 22].

R. v. Viravong (T.), [2011] A.R. Uned. 486; 2011 ABPC 111, refd to. [para. 22].

R. v. Singh (S.), [2012] A.R. Uned. 287; 2012 ABPC 91, refd to. [para. 22].

R. v. Northcott (J.E.) (1995), 177 A.R. 94 (Q.B.), refd to. [para. 23].

R. v. Duplessis (2006), 49 M.V.R.(5th) 252 (Q.B.), refd to. [para. 23].

R. v. Nitschke, [2007] A.J. No. 1579 (Q.B.), refd to. [para. 23].

R. v. Mario (M.J.), [2010] A.R. Uned. 812; 2010 ABPC 305, refd to. [para. 23].

R. v. Redford (B.S.) (2012), 549 A.R. 183; 2012 ABQB 768, refd to. [para. 23].

R. v. Cunningham (D.J.) (2006), 401 A.R. 35; 391 W.A.C. 35; 2006 ABCA 345, refd to. [para. 24].

R. v. Angus (G.A.) (2013), 564 A.R. 252; 2013 ABQB 195, refd to. [para. 25].

R. v. Smalridge (K.G.) (2000), 272 A.R. 59 (Q.B.), refd to. [para. 30].

R. v. Jackson (S.J.) (2005), 381 A.R. 294; 2005 ABQB 268, refd to. [para. 31].

R. v. Smith (B.D.) (2007), 419 A.R. 129; 2007 ABPC 170, refd to. [para. 37].

R. v. Schlegel (1985), 22 C.C.C.(3d) 436 (B.C.C.A.), refd to. [para. 37].

R. v. Andraishek (1988), 9 M.V.R.(2d) 121 (Alta. C.A.), refd to. [para. 40].

R. v. Park (S.J.) (2009), 465 A.R. 20; 2009 ABQB 470, affd. (2010), 482 A.R. 153; 490 W.A.C. 153; 2010 ABCA 248, refd to. [para. 41].

R. v. Spreen (1987), 82 A.R. 318 (C.A.), refd to. [para. 47].

R. v. Filewich (R.) (1995), 167 A.R. 228 (Q.B.), refd to. [para. 49].

R. v. Gazica (A.W.) (2002), 317 A.R. 219; 284 W.A.C. 219; 2002 ABCA 217, refd to. [para. 51].

R. v. Tunke (1975), 25 C.C.C.(2d) 518 (Alta. T.D.), dist. [para. 54].

R. v. Rose (E.) (2001), 143 O.A.C. 163; 53 O.R.(3d) 417 (C.A.), refd to. [para. 57].

R. v. Situ (X.Y.) (2005), 371 A.R. 170; 354 W.A.C. 170; 2005 ABCA 275, refd to. [para. 58].

R. v. Paquette (L.L.) (2008), 425 A.R. 4; 418 W.A.C. 4; 2008 ABCA 49, refd to. [para. 58].

Counsel:

Joni-Lynn Ellerton and K. Perrin, for the appellant;

Andrew Barg, for the respondent/Crown.

This appeal was heard on August 7, 2013, before Millar, J., of the Alberta Court of Queen's Bench, Judicial District of Calgary, who delivered the following memorandum of decision on October 17, 2013.