R v Vallentgoed (ABCA): Crown not required to disclose Intoxilyzer maintenance records

By |2017-09-22T22:53:29-06:0016/11/2016|Breath Testing, Disclosure, Impaired Driving|

The Criminal Code contains evidentiary presumptions relating to the accuracy of evidentiary breath tests. The only path to defend against this presumption is for the accused to raise a reasonable doubt on the issues of whether the instrument was malfunctioning or whether it was operated improperly. The materials which an accused person is entitled to receive from the Crown in order to attempt to raise such a doubt has been the subject of debate in Alberta courts (and elsewhere in Canada) for several years. In January 2013, an Alberta Court of Queen's bench decision on a summary conviction appeal held that maintenance logs for evidentiary breath testing instruments (such as the Intoxilyzer 5000C) must be disclosed by the Crown to an accused person on request: R. v. Kilpatrick, 2013 ABQB 5. The Crown sought leave to appeal the decision of the summary conviction appeal court. Leave was denied, with Justice O'Brien concluding that the evidentiary record from the courts below was not sufficient for the Court of Appeal to properly consider the questions on which the Crown sought leave to [...]

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R v Gibson (ABCA): Two year sentence for impaired driving causing death was inadequate

By |2017-09-28T23:53:27-06:0003/02/2015|Impaired Driving, Sentencing|

In this case, the Court of Appeal upheld the decision of a sentencing judge to reject a joint submission for a two year sentence for an accused convicted of impaired driving causing death and upheld the sentence imposed of two years and eight months; noting, however, that a sentence of no less than four years ought to have been imposed: R v Gibson, 2015 ABCA 41 (CanLII). Gibson had pleaded guilty to impaired driving causing death and impaired driving causing bodily harm. Gibson was driving a large pick-up truck on a highway after visiting friends and consuming alcohol. The highway had one lane of travel in each direction. After he passed two semi tractor-trailers by pulling around them using the oncoming traffic lane, he did not return to his own lane of travel, but continued on the wrong side of the road for some distance. An oncoming vehicle took to the shoulder to avoid a serious collision, but was struck on the side by Gibson's vehicle. A second oncoming vehicle was struck more severely and [...]

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R v Redford (ABCA): Service of certificate of analyses is to be proven on a balance of probabilities

By |2017-09-28T23:56:41-06:0029/10/2014|Evidence, Impaired Driving, Procedure and Practice, Standard of Proof|

The Criminal Code requires the Crown, where it seeks to enter a certificate of analyses of breath samples as evidence at trial, to prove that a copy of the certificate was given to the accused along with notice of the Crown's intention to rely upon the analyses: Criminal Code, s. 258(7). Until this decision, R v Redford, 2014 ABCA 336, there were conflicting lines of authority in Alberta as to whether proof of service of the certificate of analyses and the notice of intention to tender that certificate at trial was required to be proven on a balance of probabilities or beyond a reasonable doubt. The three member panel divided on this issue in Redford, delivering majority and minority reasons for judgment reserved. The majority decision was written by Justice Paperny, who held that the Crown's obligation is to prove service of the certificate and notice beyond a balance of probabilities, and not on the more onerous standard of beyond a reasonable doubt. Justice Paperny reasoned as follows: In general, though the ultimate burden of the Crown is to prove [...]

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R v Flight (ABCA): Admission of consumption equals reasonable suspicion “in most cases”

By |2017-09-29T00:16:33-06:0001/06/2014|Breath Testing, Impaired Driving, Reasonable Suspicion|

Section 254(2) of the Criminal Code permits a peace officer to demand that a person supply a sample of their breath into an approved screening device (also known as a roadside screening device) if the officer has a reasonable suspicion that the person: (a) has alcohol in his or her body; and (b) has operated a motor vehicle in the past three hours (typically, of course, such demands are made in the context of a motor vehicle stop where the second part of the test is abundantly clear). R v Flight, 2014 ABCA 185 (CanLII), is a reserved judgment  of the Court of Appeal that addresses a question which has been a subject of considerable debate in the lower courts: Is an admission of consumption of alcohol by a driver sufficient to ground a reasonable suspicion? The bulk of recent authority in lower-level courts in Alberta has held that an admission of consumption of alcohol by a driver is sufficient to ground a reasonable suspicion: See, e.g. R v Thomas, 2008 ABQB 610 (CanLII). It has also [...]

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R v Sutton: Intoxilyzer maintenance logs are not first party records

By |2016-11-16T20:46:24-07:0029/11/2013|Breath Testing, Disclosure, Impaired Driving|

A battle is underway in Alberta over whether maintenance logs for evidentiary breath testing instruments must be disclosed by the Crown to defendants as first party records, or whether they are third party records that must be sought from the police on an O'Connor application. Back in January 2013, an Alberta Court of Queen's Bench decision on a summary conviction appeal held that maintenance logs for these instruments must be disclosed to an accused person on request: R. v. Kilpatrick, 2013 ABQB 5. The Crown sought leave to appeal the decision of the summary conviction appeal court. Leave was denied, with Justice O'Brien concluding that the evidentiary record from the courts below was not sufficient for the Court of Appeal to properly consider the questions on which the Crown sought leave to appeal: 2013 ABCA 168. In R. v. Sutton, 2013 ABPC 308, Judge Henderson of the Provincial Court of Alberta had the more comprehensive evidentiary record that the Court of Appeal felt was lacking on the Kilpatrick leave application. Testimony was given by two experts called by the Crown with respect to evidentiary [...]

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