R. v. Zaccaria (N.G.),

• Judge: Bielby,C,Picard
• Neutral Citation: 2005 ABCA 130
• Date: 01 March 2005
• Subject Matter: CRIMINAL LAW
• Court: Court of Appeal (Alberta)

R. v. Zaccaria (N.G.) (2005), 363 A.R. 343 (CA);

    343 W.A.C. 343

MLB headnote and full text

Temp. Cite: [2005] A.R. TBEd. AP.011

Her Majesty the Queen (respondent) v. Natale Gesu Zaccaria (appellant)

(0403-0232-A3; 2005 ABCA 130)

Indexed As: R. v. Zaccaria (N.G.)

Alberta Court of Appeal

Côté and Picard, JJ.A., and Bielby, J.(ad hoc)

March 1, 2005.

Summary:

The accused was convicted of the summary conviction offences of impaired driving and over .08. The accused appealed. He argued, inter alia, that the police officer did not have reasonable and probable grounds to make a breathalyzer demand and that he had not received reasonable notice of the Crown's intention to seek greater punishment under s. 727(1) of the Criminal Code.

The Alberta Court of Queen's Bench dismissed the appeal. The accused sought leave to appeal on the grounds that the summary conviction appeal court erred in ruling that, without evidence from the accused, of ambiguity or confusion, a finding of compliance with s. 727(1) of the Criminal Code was justified.

The Alberta Court of Appeal, per Ritter, J.A., in a decision reported at [2004] A.R. Uned. 320, granted leave to appeal respecting the issue of the adequacy of the notice given to Zaccaria pursuant to s. 727(1) of the Criminal Code.

The Alberta Court of Appeal dismissed the appeal.

Criminal Law - Topic 5606

Punishments (sentence) - Increased punishment for prior convictions - Reasonable notice of - Section 727(1) of the Criminal Code stated that "where an offender is convicted of an offence for which a greater punishment may be imposed by reason of previous convictions, no greater punishment shall be imposed on the offender by reason thereof unless the prosecutor satisfies the court that the offender, before making a plea, was notified that a greater punishment would be sought by reason thereof" - The Alberta Court of Appeal stated that, taking a purposive approach to the interpretation of s. 727(1) and the meaning of the word "notified", the section was clearly intended by Parliament to "forewarn" or to act as a "warning" to a defendant before a plea was made, that a greater punishment would be sought by the Crown by reason of a previous conviction - The word "notified" in s. 727(1) required that the Crown must give the accused an adequate "warning" that a greater punishment would be sought - See paragraph 12.

Criminal Law - Topic 5606

Punishments (sentence) - Increased punishment for prior convictions - Reasonable notice of - Section 727(1) of the Criminal Code stated that "where an offender is convicted of an offence for which a greater punishment may be imposed by reason of previous convictions, no greater punishment shall be imposed on the offender by reason thereof unless the prosecutor satisfies the court that the offender, before making a plea, was notified that a greater punishment would be sought by reason thereof" - The Alberta Court of Appeal stated that an adequate warning that a greater punishment would be sought "is one that is 'reasonable in time and substance' and is 'not misleading, confusing or otherwise prejudicial' to the accused. Thus, the notice given must in some way mislead, confuse or otherwise prejudice the accused in its purpose of 'warning' of the potential liability for greater punishment by reason of a previous and similar conviction, before it can be considered unreasonable." - See paragraph 15.

Criminal Law - Topic 5606

Punishments (sentence) - Increased punishment for prior convictions - Reasonable notice of - The accused argued that a trial judge and the summary conviction appeal justice erred concerning the adequacy of the Crown's notice of intention to seek greater punishment as required by s. 727(1) of the Criminal Code - The accused argued that the arresting officer's verbal explanation of the notice was inconsistent with the written words of the notice (he said "may seek" instead of "would seek" and used the word "Court" instead of "Crown") and that this created an ambiguity making the notice unreasonable and inadequate - He did not testify respecting the ambiguity or his confusion - He conceded that the written notice complied with s. 727 - The Alberta Court of Appeal dismissed the appeal - A finding of confusion or ambiguity would be rare, in the absence of defence evidence to that effect -The fact that the accused was represented by counsel and counsel had knowledge of the notice was relevant to questions of whether the accused was misled, confused or prejudiced - A finding of confusion or ambiguity should be based on evidence, not supposition - The explanatory words "may" and "Court" used by the constable were not a direct contradiction to the written notice - The overall notice given by the Crown to the accused was an adequate warning which complied with s. 727 - See paragraphs 14 to 22.

Cases Noticed:

R. v. Good et al. (1983), 44 A.R. 393 (C.A.), refd to. [para. 5].

R. v. Hunter (1986), 70 A.R. 316 (C.A.), refd to. [para. 11].

R. v. Reid, [1970] 5 C.C.C. 368; 75 W.W.R.(N.S.) 183 (B.C.C.A.), refd to. [para. 12].

R. v. Taylor, [1964] 1 C.C.C. 207; 42 W.W.R.(N.S.) 692 (B.C.C.A.), refd to. [para. 12].

R. v. Morrison (1982), 42 N.B.R.(2d) 271; 110 A.P.R. 271; 70 C.C.C.(2d) 193 (C.A.), refd to. [para. 18].

R. v. Johnston (1977), 3 A.R. 181 (N.W.T.C.A.), affd. [1978] 2 S.C.R. 391; 19 N.R. 476; 9 A.R. 22, refd to. [para. 19].

R. v. Napoleon (1987), 82 A.R. 180 (Q.B.), refd to. [para. 19].

R. v. Cornelssen, [1983] A.J. No. 128 (C.A.), refd to. [para. 20].

Statutes Noticed:

Criminal Code, R.S.C. 1985, c. C-46, sect. 727(1) [para. 10].

Counsel:

A.R. Schlayer, for the respondent;

R.S. Prithipaul, for the appellant.

This appeal was heard on March 1, 2005, by Côté and Picard, JJ.A., and Bielby, J.(ad hoc), of the Alberta Court of Appeal. Picard, J.A., delivered the following memorandum of judgment orally from the Bench for the court on March 1, 2005, and written reasons were filed on March 29, 2005.