R. v. Creig, 2012 ABQB 79

Court of Queen ’ s Bench of Alberta Citation: R. v. Creig, 2012 ABQB 79 Date: 20100131 Docket: 071580880S1 Registry: Calgary Between: Her Majesty the Queen Crown - and - David Anthony Creig Accused _______________________________________________________ Reasons for Judgment of the Honourable Mr. Justice P.M. Clark _______________________________________________________ Background [ 1 ] Mr. Creig was charged with impaired driving and drive over 80 on December 13, 2007. He was stopped at a Calgary Checkstop at 9:32 p.m, failed a roadside screening test, and was arrested.

He spoke to a lawyer in private, and then gave breath samples at 10:09 and 10:33. His blood/alcohol level was 110 milligrams of alcohol in 100 millilitres of blood. [ 2 ] The matter came to trial on October 14, 2009 before Judge Gaschler. Mr. Creig’s counsel opposed the admission of the breath test results on the grounds that (

i) there was too much delay in conducting the screening test (this ground relied on testimony of the accused, which the judge rejected); (ii) when explaining what a “fail” reading meant, the officer failed to use the precise language of the Criminal Code ; (iii) the screening instrument may have been an “Intoxilyzer 400” instead of an “Intoxilyzer 4000”; and (iv) there was a delay of four minutes between arrival at the Checkstop bus and Mr. Creig being given access to a phone.

[ 3 ] Judge Gaschler rejected all these arguments and admitted the breath test results. Creig’s counsel said that there were no further arguments, and Mr. Creig was convicted. Statement of Facts [ 4 ] The Appellant was charged with: Count #1: On or about the 13th day of December, 2007, at or near Calgary, Alberta having consumed alcohol in such a quantity that the concentration thereof in his blood exceeded eighty milligrams of alcohol in one hundred milliliters of blood did unlawfully have care and control of a motor vehicle, contrary to

section 253 (

b) of the Criminal Code of Canada . Count #1: On or about the 13th day of December, 2007, at or near Calgary, Alberta while his ability to operate a motor vehicle was impaired by alcohol did have care and control of a motor vehicle contrary to

section 253 (

a) of the Criminal Code of Canada . [ 5 ] The matter came to trial on the afternoon of October 14, 2009. At the start of the hearing Mr. Creig’s counsel advised the court that he had filed a Charter notice and suggested that all evidence be heard in a voir dire . There was an agreement that all evidence heard in the voir dire that was ruled admissible would be applied to the trial proper. [ 6 ] The Crown called the evidence of Constable Miranda Dilschneider. She described being part of a Checkstop that was set up in the 3600 block of Edmonton Trail on December 13, 2007. She stopped Mr. Creig at 9:32 p.m.

He admitted to drinking some alcohol, and she demanded that he provide a sample of his breath for the roadside screening device. He did so, and the result was a fail. The following exchange then took place in direct examination: A He provided a sample into the device. Q And what was the result? A The result was an ‘F’ for fail Q What does a fail mean to you? A It means that the accused has consumed alcohol in excess of 100 milligrams percent.

Q Sorry, what’s in excess of one - A Oh, pardon me, that the accused has consumed alcohol in his body, and that in his - that the device is reading the quantity of alcohol consumed over 100 milligrams. Q Okay. So this device, what exactly does it measure? A It measures the bread to bleff (sic) - pardon me - the blood to breath ratio. [ 7 ] The Crown tried to follow up on this evidence, but there was an objection. After ruling on the objection, the evidence continued: Q. Constable, I’d asked you the question what does a fail mean to you, and I’m a bit confused. What does a fail mean to you? A Yes sir.

It means that the accused has consumed alcohol in his body. Q Okay. So you’re saying that a fail means that he has consumed alcohol? A Yes that’s correct.

[8] Constable Dilschneider continued her evidence, and when she was finished the Crown said that he had no further evidenceon the voir dire. The defence called Mr. Creig to testify in the voir dire. His testimony was not particularly significant except that hedisagreed with Constable Dilschneider on the timing of when he was read the screening device demand. He admitted that he had beendrinking alcohol. After his evidence the defence said that there would be no further evidence on the voir dire. [9] The accused raised several challenges to the admissibility of the breath samples.

After some oral submissions in which heoutlined the issues he intended to raise, he offered to prepare written arguments. The Crown offered to do the same. With that the casewas adjourned. [10] It turned out that the written submissions were quite extensive. The defence submitted a 31-page brief citing 13 cases. TheCrown responded with a 49-page brief citing 12 cases. Judge Gaschler gave an oral decision on October 26, 2010. In that decision herejected all the issues raised by the defence and found that the breath samples were admissible. He explained that he had not beenimpressed with the evidence of Mr.

Creig and that on the points where there was any conflict he preferred the evidence of the officer. [11] The Accused has appealed Judge Gaschler’s decision. The issues on appeal are: 1. Did the Learned Trial Judge err in law in rendering unreasonable credibility findings against the Appellant? 2. Did the Learned Trial Judge fail to consider the submissions raised relative to the insufficiency of the information raised by the CPSmember’s governing the “F” or “Fail” results from the Road-Side, rendering her subjective belief, objectively unreasonable? 3.

Did the trial judge fail to consider the argument raised at trial that the Crown, through repetitive questioning, in the face of a valid andtimely objection, had improperly questioned the CPS Member on her understanding on this issue? [12] Both counsel filed written briefs and the argument on appeal was heard on December 16, 2011. [13] The Appellant argues that the learned trial judge erred in the findings of credibility that he made on the voir dire.

He saysthat even though the trial judge found the accused’s evidence to be unreliable, the judge should have continued through the test in R. v.W(D), (SCC), [1991] 1 SCR 742 and asked whether his evidence raised a reasonable doubt. In making this argument,the appellant attempts to bleld or fuse together the burden of proof on the Crown at trial with the burden on a party applying to haveevidence excluded under the Charter. The brief filed by the Appellant was very difficult to follow and the Appellant’s oral argumentdidn’t provide much elucidation.

The thrust of the Appellant’s position might be found at page 7 of the transcript of the proceedings,commencing at line 30 where the Appellant states: Now, the question that comes to the fore is, why is this of any significance? So the argument that’s being advanced by the appellant isthat the learned trial judge had failed to invoke or invince (phonetic) a W.D. analysis, the – the credibility test when a defendant testifiesin the context of a voir dire – or a trial rather.

The Appellant does not provide any case or textbook authority in support of his position. [14] The Crown, on the other hand, was well prepared to meet the Appellant’s argument. The Crown argued that the standard ofproof at a trial is that every element of a defence must be proved beyond a reasonable doubt. On a voir dire on the admissibility ofevidence under the Charter, the burden of proof is very different. The Crown takes the position of the Supreme Court of Canada hassettled the issue in R. v.

Collins, (SCC), [1987] 1 SCR 265 where it is stated at para 21: The appellant, in my view, bears the burden of persuading the court that her Charter rights or freedoms have been infringed or denied.That appears from the wording of s. 24(1) and (2), and most courts which have considered the issue have come to that conclusion (see R.v. Lundrigan (1985), (MB CA), 19 C.C.C. (3d) 499 (Man. C.A.), and the cases cited therein and Gibson, The Law ofthe Charter: General Principles (1986), p. 278). The appellant also bears the initial burden of presenting evidence.

The standard ofpersuasion required is only the civil standard of the balance of probabilities and, because of this, the allocation of the burden ofpersuasion means only that, in a case where the evidence does not establish whether or not the appellant’s rights were infringed, the court

must conclude that they were not. [15] I have had the benefit of finding two provincial court cases, R. v. Kicovic, 2004 ABPC 190. In that case, Judge Semenuksummarized the principles that apply when assessing the credibility of an accused in a Charter voir dire. In R. v. Russell, 2008 ABPC166, he states, at para. 65, as follows: This court’s view on the assessment of credibility of an accused testifying in a Charter voir dire was fully expressed in R. v. Kocovic,2004 ABPC 190. In that case, I decided that the principles enunciated in the Supreme Court of Canada in R. v.

W.(D.), (1991) (SCC), 63 CCC (3d) 397, do not apply. The Accused on a Charter application carries both an evidentiary and a legal orpersuasive burden of proof on the balance of probabilities. Guilt or innocence is not in issue at this stage of the proceedings, and thereasonable doubt principle has no application. If the evidence of the Accused conflicts with that given by an investigating police officer,the Court must determine the probabilities of who is telling the truth. It is much the same as the Court assessing credibility in a civilcase.

If the Court is left in the position of not knowing who to believe, the application cannot, in law, succeed. The Defence will havefailed to discharge its evidentiary burden. [16] Kicovic was referred to and followed in the decision of the Honourable Judge C.M. Skene in R. v. Hill. Conclusion [17] This appeal should be dismissed. The learned trial judge made reasonable credibility findings which are entitled to deference,and he applied the proper onus of proof on the voir dire. He also correctly interpreted the evidence about the “fail” reading based onevidence of Constable Dilschneider.

His decision to accept Constable Dilschneider’s evidence despite the allegedly repetitivequestioning of the Crown was also reasonable and the matter that was within his discretion. There is no basis for this Court to interferewith any of the learned judge’s rulings. Heard on the 16th day of December, 2011. Dated at the City of Calgary, Alberta this 31st day of January, 2012. P.M. Clark J.C.Q.B.A. Appearances: Andrew Barg for the Crown Jeinis S. Patel Barrister & Solicitor

for the Defendant