R. v. Zink, (1977) 7 A.R. 553 (CA)

• Judge: McDermid, Lieberman and Morrow, JJ.A.
• Court: Court of Appeal (Alberta)
• Case Date: November 29, 1977
• Citations: (1977), 7 A.R. 553 (CA)

R. v. Zink (1977), 7 A.R. 553 (CA)

MLB headnote and full text

R. v. Zink

Indexed As: R. v. Zink

Alberta Supreme Court

Appellate Division

McDermid, Lieberman and Morrow, JJ.A.

November 29, 1977.

Summary:

This case arose out of a charge of impaired driving contrary to s. 234 of the Criminal Code and a charge of failing to provide a breath sample contrary to s. 235(2) of the Criminal Code. The trial judge found the accused guilty of impaired driving under s. 234 but acquitted the accused of the charge of failing to provide the breath sample under s. 235(2). The accused appealed his conviction. The Crown did not appeal from the accused's acquittal.

On the accused's appeal by way of trial de novo to the Alberta District Court the Crown offered evidence to show that the accused refused to provide a breath sample. The evidence was offered for the purpose of inviting the court to draw an unfavourable inference thereupon pursuant to s. 237(3) of the Criminal Code. The District Court admitted the evidence offered by the Crown, drew an adverse inference from the evidence against the accused pursuant to s. 237(3) and affirmed the conviction of the accused of impaired driving. The judgment of the District Court is set out below - see paragraphs 35 to 42.

On appeal to the Alberta Court of Appeal the appeal was allowed, conviction of the accused was set aside and a rehearing was ordered. The Alberta Court of Appeal held that the Crown was precluded in the circumstances from offering evidence before the District Court that the accused refused to provide a breath sample. The Alberta Court of Appeal stated that it was improper to admit such evidence because it was relevant to an issue which was decided adverse to the Crown in a prior trial.

Criminal Law - Topic 90

General principles - Estoppel - Issues decided in prior proceedings - The accused was charged and found guilty of impaired driving; he was also charged and acquitted of a refusal to provide a breath sample - The accused appealed his conviction of impaired driving but the Crown did not appeal the acquittal of refusing to provide a breath sample - On the accused's appeal by way of trial de novo the Crown offered evidence to show that the accused refused to provide a breath sample and was offered for the purpose of inviting the court to draw an unfavourable inference therefrom pursuant to s. 237(3) of the Criminal Code - The Alberta Court of Appeal held that the Crown was precluded from offering such evidence - The Alberta Court of Appeal stated that it was improper to admit such evidence because it was relevant to an issue which was decided adverse to the Crown in a prior trial - The Alberta Court of Appeal stated that the evidence of refusal was not relevant or necessary evidence respecting the charge against the accused of impaired driving - See paragraph 29.

Cases Noticed:

Director of Public Prosecutions v. Humphrys, [1976] 2 All E.R. 497; 63 Cr.App.R. 95, refd to. [paras. 4, 26].

Attorney General of Quebec v. Begin, [1955] 5 D.L.R. 394, folld. [para. 14].

Validity of Section 92(4) of the Vehicles Act 1957 (Sask.), [1958] S.C.R. 608, folld. [para. 15].

R. v. Sinclaire (1962), 37 C.R. 77, refd to. [para. 16].

Re R. v. Beauvais, [1965] 3 C.C.C. 281, refd to. [para. 16].

Re Lapinsky (1966), 47 C.R. 346, refd to. [para. 16].

R. v. Casson, [1976] 4 W.W.R. 561, refd to. [para. 21].

R. v. Cormier, [1976] 1 W.W.R. 34, refd to. [para. 21].

Sambasivam v. Public Prosecutor, [1950] A.C. 458, folld. [para. 25].

Kemp v. R. (1951), 83 C.L.R. 341, folld. [para. 26].

R. v. Welyk, [1975] 6 W.W.R. 689, refd to. [para. 33].

R. v. Kienapple, 1 N.R. 322; [1975] 1 S.C.R. 729, refd to. [para. 39].

R. v. Connelly, [1964] A.C. 1254, refd to. [para. 40].

Statutes Noticed:

Criminal Code of Canada, R.S.C. 1970, c. C-34, sect. 237(3) [para. 20].

Counsel:

L.L. Ross, for the appellant;

I.F. Kirkpatrick, for the Crown.

This appeal was heard by McDERMID, LIEBERMAN and MORROW, JJ.A.

The judgment of the Alberta Court of Appeal was delivered at Calgary, Alberta on November 29, 1977, by MORROW, J.A.