R. v. Wyman (D.), 2014 SKQB 224

• Judge: Mills, J.
• Court: Court of Queen's Bench of Saskatchewan (Canada)
• Case Date: July 22, 2014
• Jurisdiction: Saskatchewan
• Citations: 2014 SKQB 224;(2014), 450 Sask.R. 211 (QB)

R. v. Wyman (D.) (2014), 450 Sask.R. 211 (QB)

MLB headnote and full text

Temp. Cite: [2014] Sask.R. TBEd. SE.006

Don Wyman (appellant) v. Her Majesty the Queen (respondent)

(2013 Q.B.C.A. No. 31; 2014 SKQB 224)

Indexed As: R. v. Wyman (D.)

Saskatchewan Court of Queen's Bench

Judicial Centre of Saskatoon

Mills, J.

July 22, 2014.

Summary:

The accused was convicted of operating a motor vehicle while having an excessive blood-alcohol level. He appealed his conviction.

The Saskatchewan 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 (incl. evidence tending to show) - The accused appealed his conviction for operating a motor vehicle while having an excessive blood-alcohol level - He asserted that the trial judge erred when he held that the accused had not adduced evidence to the contrary respecting the expected blood-alcohol concentration of the accused at the last time of driving - The Saskatchewan Court of Queen's Bench dismissed the appeal - "Expert evidence from the Crown and the defence agreed that if the pattern and amount of alcohol consumption as testified to by the accused was accepted, then he would not have exceeded 80 milligrams of alcohol in 100 millilitres of blood at the time of driving" - The learned trial judge accepted the expert opinion, but did not accept the evidence of the accused - It was the evidence of the accused with respect to the pattern and amount of his consumption of alcohol that forms the basis of the expert's opinion - The learned trial judge found the evidence of the accused in this regard not to be credible - Therefore, the foundation for satisfying this defence was absent - There was no error - See paragraphs 15 to 18.

Criminal Law - Topic 7471.1

Summary conviction proceedings - Appeals - General - Transcripts - The accused appealed his conviction for operating a motor vehicle while having an excessive blood-alcohol level - He asserted that the trial judge erred when he held that the failure of the court to maintain complete recordings of the evidence heard at trial should not result in a mistrial - The evidence missing from the transcript involved the police officer's description of the initial stop of the accused, the interaction with the accused at the accused's vehicle and the police vehicle, including any conversation that occurred up until the point in time where the police officer escorted the accused to the RCMP detachment for the purpose of taking a breath test - The Saskatchewan Court of Queen's Bench dismissed the appeal - There was no charge of impaired driving before the court, and, therefore, the manner of the accused's driving, his physical mobility and any other issue related were irrelevant - The issue at the trial that would relate to the evidence of the investigating officer involved the drinking pattern of the accused as discussed between the officer and the accused at that point of contact - The missing transcript did not deprive the accused of a ground of appeal, nor, more importantly, a thorough review of the factual basis for the appeal - See paragraphs 1 to 14.

Cases Noticed:

R. v. Ewen (S.W.) (1998), 173 Sask.R. 79 (Q.B.), refd to. [para. 8].

R. v. Hayes, [1989] 1 S.C.R. 44; 89 N.R. 138; 89 N.S.R.(2d) 286; 227 A.P.R. 286; 48 C.C.C.(3d) 161, refd to. [para. 9].

R. v. Speir (J.) (2007), 301 Sask.R. 284; 2007 SKQB 280, refd to. [para. 10].

R. v. St-Onge Lamoureux (A.), [2012] 3 S.C.R. 187; 436 N.R. 199; 2012 SCC 57, refd to. [para. 16].

R. v. Gibson (R.A.), [2008] 1 S.C.R. 397; 373 N.R. 1; 429 A.R. 327; 421 W.A.C. 327; 264 N.S.R.(2d) 331; 847 A.P.R. 331; 2008 SCC 16, refd to. [para. 18].

Counsel:

Michael W. Owens, for the appellant;

Franklin G. Impey, for the respondent.

This appeal was heard by Mills, J., of the Saskatchewan Court of Queen's Bench, Judicial Centre of Saskatoon, who delivered the following judgment on July 22, 2014.