R. v. Zaccaria (N.G.), 2004 ABQB 518

• Judge: Lee, J.
• Court: Court of Queen's Bench of Alberta (Canada)
• Case Date: June 05, 2004
• Citations: 2004 ABQB 518;(2004), 362 A.R. 317 (QB)

R. v. Zaccaria (N.G.) (2004), 362 A.R. 317 (QB)

MLB headnote and full text

Temp. Cite: [2004] A.R. TBEd. JL.122

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

(017327636S1; 2004 ABQB 518)

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

Alberta Court of Queen's Bench

Judicial District of Edmonton

Lee, J.

July 12, 2004.

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.

Courts - Topic 583

Judges - Duties - Re reasons for decisions - The accused was convicted of driving with an excessive blood alcohol level - He appealed, arguing that the trial judge failed to deliver adequate reasons for judgment respecting whether or not reasonable and probable grounds for the breathalyzer demand had been proven - The trial judge had made no mention of the accused's verbal or written submissions on this issue - The Alberta Court of Queen's Bench rejected the argument - The court was able to review the correctness of the trial judge's decision - A failure to reference trial counsel's submissions in the trial judge's reasons for judgment did not amount to a reversible error - While the trial Judge gave only brief reasons for his decision on the voir dire, there was only one issue on the voir dire, whether the arresting police officer had reasonable and probable grounds - The officer was the only person to testify on the voir dire so his evidence did not need to be reconciled with other evidence - Credibility was not at issue and it did not appear that the underlying facts were in dispute - See paragraphs 72 to 84.

Criminal Law - Topic 1372

Offences against person and reputation - Motor vehicles - Impaired driving - Breathalyzer sample - Demand - Reasonable grounds - A police officer received a radio call reporting an impaired driver who was drinking and driving and driving "all over the road" - The officer located the vehicle and quickly pulled it over - At 22:03 the officer observed that the accused driver exhibited very slow movements, had glossy eyes and would not roll the window down - The officer opened the door and that there was an overwhelming odour of alcohol - The accused ignored the officer's instruction to not put a piece of gum in his mouth - The officer did not personally observe any erratic driving - At 22:04 the officer arrested the accused and took physical control of the accused so that he would put not gum in his mouth - The officer later made a breathalyzer demand - The accused was convicted of driving with an excessive blood alcohol level - He appealed, arguing that the trial judge erred in finding that the police officer had reasonable and probable grounds to make a breathalyzer demand given, inter alia, that the officer only observed him for one minute and an abnormal driving pattern noted and many of the other usual indicia of impairment were not noted - The Alberta Court of Queen's Bench rejected the argument - See paragraphs 49 to 71.

Criminal Law - Topic 4684

Procedure - Judgments and reasons for judgment - Reasons for judgment - Sufficiency of - [See Courts - Topic 583 ].

Criminal Law - Topic 5606

Punishments (sentence) - Increased punishment for prior convictions - Reasonable notice of - An accused was convicted of impaired driving and over .08 - One issue was whether an officer's verbal explanation of the Notice of Intention to Seek Greater Punishment under s. 727 of the Criminal Code, which accompanied the service of the written notice, complied with s. 727 - The accused argued that explanation was unacceptably ambiguous - However, the accused did not testify as to whether he was confused by the alleged ambiguity - The trial judge held that the Crown had complied with s. 727(1) - The Alberta Court of Queen's Bench dismissed the accused's appeal - There was a near pre-requisite of evidence of ambiguity or confusion from the accused - Without the presence of such evidence, a finding of confusion or ambiguity would be "rare indeed" - See paragraphs 87 to 100.

Cases Noticed:

R. v. McClelland (B.L.) (1995), 165 A.R. 332; 89 W.A.C. 332; 98 C.C.C.(3d) 509 (C.A.), refd to. [para. 28].

R. v. Brezinski (C.C.) (2000), 268 A.R. 310 (Q.B.), refd to. [para. 28].

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; 95 C.C.C.(3d) 193, refd to. [para. 30].

R. v. Cooper, [1993] O.J. No. 501 (Prov. Ct.), refd to. [para. 31].

R. v. Khanataev, [1998] O.J. No. 2589 (Prov. Ct.), refd to. [para. 31].

R. v. Hopkie (D.M.) (1994), 126 Sask.R. 44 (Q.B.), refd to. [para. 31].

R. v. C.R.M. (1998), 165 Sask.R. 95 (Q.B.), refd to. [para. 31].

R. v. Hendel, [1997] O.J. No. 2849 (Gen. Div.), refd to. [para. 31].

R. v. Harper, [1982] 1 S.C.R. 2; 40 N.R. 255; 65 C.C.C.(2d) 193, refd to. [para. 36].

R. v. Sheppard (C.), [2002] 1 S.C.R. 869; 284 N.R. 342; 211 Nfld. & P.E.I.R. 50; 633 A.P.R. 50, refd to. [para. 37].

R. v. Hunter (1986), 70 A.R. 316 (C.A.), refd to. [para. 41].

R. v. Riley (1982), 69 C.C.C.(2d) 245 (Ont. H.C.), refd to. [para. 45].

Housen v. Nikolaisen et al., [2002] 2 S.C.R. 235; 286 N.R. 1; 219 Sask.R. 1; 272 W.A.C. 1, refd to. [para. 52].

R. v. Oduneye (S.O.) (1995), 169 A.R. 353; 97 W.A.C. 353 (C.A.), refd to. [para. 56].

R. v. Musurichan (1990), 107 A.R. 102 (C.A.), refd to. [para. 57].

R. v. Huddle (1989), 102 A.R. 144 (C.A.), refd to. [para. 58].

R. v. Storrey, [1990] 1 S.C.R. 241; 105 N.R. 81; 37 O.A.C. 161; 53 C.C.C.(3d) 316, refd to. [para. 60].

R. v. Dwernychuk (M.K.) (1992), 135 A.R. 31; 33 W.A.C. 31 (C.A.), refd to. [para. 64].

R. v. Burns (R.H.), [1994] 1 S.C.R. 656; 165 N.R. 374; 42 B.C.A.C. 161; 67 W.A.C. 161, refd to. [para. 73].

R. v. Good et al. (1983), 44 A.R. 393 (C.A.), refd to. [para. 86].

R. v. Corbett, [1975] 2 S.C.R. 275; 1 N.R. 258; 14 C.C.C.(2d) 385, refd to. [para. 88].

R. v. Brulotte (N.) (2003), 331 A.R. 186 (Q.B.), refd to. [para. 96].

Counsel:

R.S. Prithipaul, for the appellant;

R. Fata, for the respondent Crown.

This appeal was heard on June 5, 2004, by Lee, J., of the Alberta Court of Queen's Bench, Judicial District of Edmonton, who delivered the following reasons for judgment on July 12, 2004.