R. v. Andrews (M.A.) (1996), 178 A.R. 182 (CA);

    110 W.A.C. 182

MLB headnote and full text

Her Majesty The Queen (respondent) v. Mark Anthony Andrews (appellant)

(Appeal No. 9503-0024-A)

Indexed As: R. v. Andrews (M.A.)

Alberta Court of Appeal

Harradence, Hetherington and

Conrad, JJ.A.

January 8, 1996.


The accused was charged with driving with an excessive blood alcohol level (Criminal Code, s. 253(b)) and driving while impaired (Criminal Code, s. 253(a)). The trial judge acquitted the accused on the s. 253(b) charge, but convicted him of driving while impaired. The accused appealed his convic­tion.

The Alberta Court of Queen’s Bench dis­missed the appeal. The accused appealed.

The Alberta Court of Appeal, Hether­ington, J.A., dissenting, allowed the appeal, quashed the conviction and ordered a new trial.

Criminal Law – Topic 1362

Motor vehicles – Impaired driving – Evi­dence and proof – The trial judge con­victed the accused of impaired driving, stating that the evidence established “slight impairment by the accused at the particular time” – The Alberta Court of Appeal, in allowing the accused’s appeal, held that the trial judge erred by failing “to focus the issue upon the question of whether [the accused’s]
ability to operate a motor vehicle
was impaired” – The court stated that there was a distinction between “slightly impaired” generally, and “slight impairment of one’s ability to operate a motor vehicle” – See paragraph 19 – The marked departure from the norm test was a method of proof of impairment of driv­ing ability, although, any degree of im­pairment of “ability to operate a motor vehicle” was sufficient to found a convic­tion under s. 253(a) of the Criminal Code – See paragraphs 17 to 36.

Criminal Law – Topic 1362

Motor vehicles – Impaired driving – Evi­dence and proof – The Alberta Court of Appeal discussed the general principles in an impaired driving charge under s. 253(a) of the Criminal Code – The court stated that “[w]here it is necessary to prove im­pairment of ability to drive by observation of the accused and his conduct, those observations must indicate behaviour that deviates from normal behaviour to a degree that the required onus of proof be met. To that extent the degree of deviation from normal conduct is a useful tool in the appropriate circumstances to utilize in assessing the evidence and arriving at the required standard of proof that the
ability to drive
is actually impaired.” – See para­graph 31.

Criminal Law – Topic 1363

Motor vehicles – Impaired driving – Meaning of impairment “by alcohol or a drug” – [See both
Criminal Law – Topic 1362

Cases Noticed:

R. v. Stellato (T.) (1993), 61 O.A.C. 217; 78 C.C.C.(3d) 380 (C.A.), affd. [1994] 2 S.C.R. 478; 168 N.R. 190; 72 O.A.C. 140; 90 C.C.C.(3d) 160, consd. [paras. 2, 38].

R. v. McKenzie (1955), 111 C.C.C. 317; 20 C.R. 412 (Alta. Dist. Ct.), consd. [paras. 2, 38].

R. v. Campbell (W.S.) (1991), 87 Nfld. & P.E.I.R. 269; 271 A.P.R. 269 (P.E.I.C.A.), refd to. [para. 20].

R. v. Graat, [1982] 2 S.C.R. 819; 45 N.R. 451, refd to. [para. 21].

R. v. Conlon (1977), 12 A.R. 267; 6 Alta. L.R.(2d) 97 (Dist. Ct.), refd to. [paras. 25, 53].

R. v. Winlaw (1988), 13 M.V.R.(2d) 112 (Ont. Dist. Ct.), refd to. [paras. 26, 54].

R. v. Smith (S.M.) (1994), 44 B.C.A.C. 302; 71 W.A.C. 302; 90 C.C.C.(3d) 283 (C.A.), refd to. [para. 28].

R. v. Geerligs (R.J.) (1994), 159 A.R. 254 (Prov. Ct.), refd to. [para. 28].

R. v. Smith (K.M.) (1992), 131 A.R. 59; 25 W.A.C. 59; 73 C.C.C.(3d) 285 (C.A.), refd to. [paras. 29, 50].

Statutes Noticed:

Criminal Code, R.S.C. 1985, c. C-46, sect. 253(a), sect. 253(b) [para. 1]; sect. 839(1)(a) [para. 39].


S. Creagh, for the respondent;

A.L. Zebak, for the appellant.

This appeal was heard before Harradence, Hetherington and Conrad, JJ.A., of the Alberta Court of Appeal. The decision of the court was delivered on January 8, 1996, including the following opinions:

Conrad, J.A. (Harradence, J.A., concur­ring) – see paragraphs 1 to 36;

Hetherington, J.A., dissenting – see paragraphs 37 to 64.


R. v. Andrews (M.A.)

(1996), 178 A.R. 182 (CA)

Court of Appeal (Alberta)
Reading Time:
27 minutes
Conrad, Harradence, Hetherington 
[1] Conrad, J.A.
: Mr. Andrews was acquitted of a charge under s. 253(b) of the
Criminal Code of Canada
, R.S.C. 1985, c. C-46, of operating a motor vehicle while the concentration of alcohol in his blood exceeded the proper limits (“over .08”), but convicted of s. 253(a), namely, driving while his ability to drive was impaired by alcohol (“impaired driving”). His appeal to the sum­mary conviction appeal court was dismissed and he now appeals that decision.

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