R. v. Egger (J.H.) (1993), 141 A.R. 81 (SCC);
46 W.A.C. 81
MLB headnote and full text
[French language version follows English language version]
[La version française vient à la suite de la version anglaise]
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Josef Hans Egger (appellant) v. Her Majesty the Queen (respondent)
(22816)
Indexed As: R. v. Egger (J.H.)
Supreme Court of Canada
L’Heureux-Dubé, Sopinka, Cory,
McLachlin and Iacobucci, JJ.
June 10, 1993.
Summary:
The accused was charged with impaired driving causing bodily harm and driving while having an excessive blood alcohol level.
The Alberta Provincial Court refused to admit the certificate of analysis of a blood sample and dismissed the charges. The Crown appealed.
The Alberta Court of Appeal, in a decision reported 120 A.R. 360; 8 W.A.C. 360; 69 C.C.C.(3d) 97; 32 M.V.R.(2d) 161, allowed the appeal and ordered a new trial. The accused appealed.
The Supreme Court of Canada allowed the appeal and acquitted the accused.
Criminal Law – Topic 128
Rights of accused – Right to make full answer and defence – Two blood samples were taken from the accused – He was served with the certificate of analysis of one sample – He was only served with the certificate of qualified technician, which referred to the second sample, the day before his trial – The Supreme Court of Canada affirmed that lack of timely disclosure of the second sample denied the accused of his right to make full answer and defence – Accordingly, the Crown could not rely on the statutory presumption in s. 258(1)(d) of the Criminal Code that the blood alcohol content at the time of testing was the same as at the time of driving – See paragraphs 18 to 34.
Criminal Law – Topic 1374
Motor vehicles – Impaired driving – Breathalyzer – Evidence and certificate evidence of results of analysis – The Supreme Court of Canada stated that the admissibility in evidence of certificates of analysis and of a qualified technician was unrelated to the availability of the statutory presumption in s. 258(1)(d) of the Criminal Code – Under s. 258(7), the admissibility of the certificates was subject to reasonable notice to the accused – See paragraphs 6, 14.
Criminal Law – Topic 1374
Motor vehicles – Impaired driving – Breathalyzer – Evidence and certificate evidence of results of analysis – Two blood samples were taken from an accused – He was served with the certificate of analysis four months before trial – Through inadvertence, he was not served with notice of intention to produce the certificate of the qualified technician until the day before trial – The Supreme Court of Canada stated that the certificate of analysis was admissible – See paragraph 16 – The court stated that the certificate of the qualified technician was not admissible, where reasonable notice had not been given to the accused pursuant to s. 258(7) of the Criminal Code – See paragraph 15.
Criminal Law – Topic 1376
Motor vehicles – Impaired driving – Breathalyzer – Proof of blood alcohol content – Presumption – [See
Criminal Law – Topic 128
].
Criminal Law – Topic 1376
Motor vehicles – Impaired driving – Breathalyzer – Proof of blood alcohol content – Presumption – The Supreme Court of Canada stated that the availability of the statutory presumption in section 258(1)(d) of the Criminal Code (that the blood alcohol concentration at the time of testing of blood samples is the same as at the time of driving) required that an accused know the charge against him, know of the certificate of analysis evidence and be notified of the availability of a second sample for independent analysis – See paragraph 27.
Criminal Law – Topic 1376
Motor vehicles – Impaired driving – Breathalyzer – Proof of blood alcohol content – Two blood samples were taken from the accused – He was served with the certificate of analysis within three months – He was not served with the certificate of the qualified technician, which referred to a second sample, until the day before trial – The trial judge excluded the certificate evidence and acquitted the accused – The Supreme Court of Canada affirmed the acquittal – The Crown was not entitled to rely on the statutory presumption of proof of the accused’s blood alcohol content (Criminal Code, s. 258(1)(d)) where the accused did not have timely notice of the availability of the second sample.
Criminal Law – Topic 1383.1
Motor vehicles – Impaired driving – Breathalyzer – Application that police provide blood sample – Section 258 of the Criminal Code allowed an accused from whom blood samples had been taken, three months to apply for production of a sample for independent analysis – The Alberta Court of Appeal held that an accused’s failure to apply for the second sample for his own use did not prevent the use of the certificate of analysis of the first sample – The Supreme Court of Canada affirmed that the certificate of analysis was admissible because the accused received reasonable notice – See paragraph 16.
Criminal Law – Topic 1383.1
Motor vehicles – Impaired driving – Breathalyzer – Application that police provide blood sample – Two blood samples were taken from the accused – He was served with the certificate of analysis respecting one sample – He was not notified of the availability of the second sample for his independent testing until he was served with the certificate of a qualified technician on the day before his trial – The Supreme Court of Canada held that the Crown was not entitled to rely on the statutory presumption (Criminal Code, s. 258(1)(d)), where the accused did not have reasonable notice of the availability of the second sample for independent analysis – See paragraphs 18 to 34.
Criminal Law – Topic 1383.1
Motor vehicles – Impaired driving – Breathalyzer – Application that police provide blood sample – [See
Statutes – Topic 1205
].
Criminal Law – Topic 4975
Appeals – Indictable offences – Powers of Court of Appeal – Appeal from an acquittal – A trial judge found that an accused was not notified of the availability of a second blood sample for independent analysis until the day before trial and acquitted the accused – The Alberta Court of Appeal, in allowing the Crown’s appeal, held that the accused had notice of the second sample at the time it was taken – The Supreme Court of Canada stated that section 676(1)(a) of the Criminal Code limited the Crown’s appeal to questions of law and the Appeal Court was not entitled to overturn a trial judge’s finding of fact which was supported by evidence – See paragraph 13.
Statutes – Topic 1205
Interpretation – Construction where meaning plain – Where plain meaning inconsistent with purpose of statute – The plain meaning of s. 258(1)(d)(i) of the Criminal Code suggested that the Crown could not avail itself of the statutory presumption respecting the blood alcohol level of an accused unless the accused requested the second sample of blood within three months – The Supreme Court of Canada interpreted the section in line with the legislative intent, namely, that the presumption was available upon notice to the accused of the availability of the second sample to permit reasonable time for an informed choice as to the exercise of the right to demand production of the sample – See paragraphs 35 to 40.
Cases Noticed:
R. v. Aujla (1989), 47 C.C.C.(3d) 481 (B.C.C.A.), refd to. [para. 9].
R. v. Frizzell (1971), 6 N.S.R.(2d) 293; 5 C.C.C.(2d) 499 (C.A.), refd to. [para. 15].
R. v. Stinchcombe, [1991] 3 S.C.R. 326; 130 N.R. 277; 120 A.R. 161; 8 W.A.C. 161; 68 C.C.C.(3d) 1, refd to. [para. 19].
R. v. Montgomery (1992), 52 O.A.C. 81; 70 C.C.C.(3d) 229 (C.A.), refd to. [para. 23].
R. v. Corning (1987), 81 N.S.R.(2d) 53; 203 A.P.R. 53 (C.A.), refd to. [para. 24].
R. v. Hackie (1988), 8 M.V.R.(2d) 222 (Man. Prov. Ct.), refd to. [para. 29].
R. v. Lightfoot, [1981] 1 S.C.R. 566; 36 N.R. 349; 59 C.C.C.(2d) 414; 123 D.L.R.(3d) 104, refd to. [para. 31].
R. v. K.G.B., [1993] 1 S.C.R. 740; 148 N.R. 241; 61 O.A.C. 1, refd to. [para. 32].
R. v. Gardiner, [1982] 2 S.C.R. 368; 43 N.R. 361; 68 C.C.C.(2d) 477, refd to. [para. 32].
R. v. Ward, [1979] 2 S.C.R. 30; 25 N.R. 514; 14 A.R. 412; 44 C.C.C.(2d) 498; 7 C.R.(3d) 153, refd to. [para. 32].
R. v. Rothman, [1981] 1 S.C.R. 640; 35 N.R. 485; 59 C.C.C.(2d) 30, refd to. [para. 32].
R. v. Appleby, [1972] S.C.R. 303; [1971] 4 W.W.R. 601; 21 D.L.R.(3d) 325; 16 C.R.N.S. 35; 3 C.C.C.(2d) 354, refd to. [para. 32].
R. v. Whyte, [1988] 2 S.C.R. 3; 86 N.R. 328; 42 C.C.C.(3d) 97, refd to. [para. 32].
R. v. Redmond (1990), 37 O.A.C. 133 (C.A.), refd to. [para. 40].
R. v. Morin, [1988] 2 S.C.R. 345; 88 N.R. 161; 30 O.A.C. 181; 44 C.C.C.(3d) 193; 66 C.R.(3d) 1, refd to. [para. 42].
Savard v. R., [1946] S.C.R. 20, refd to. [para. 43].
Wexler v. R., [1939] S.C.R. 350, refd to. [para. 43].
Statutes Noticed:
Canadian Charter of Rights and Freedoms, 1982, sect. 7 [para. 19].
Criminal Code, R.S.C. 1985, c. C-46, sect. 253(b), sect. 255(2) [para. 3]; sect. 258(1)(d) [para. 5]; sect. 258(1)(h), sect. 258(1)(i) [para. 6]; sect. 258(4) [para. 5]; sect. 258(7) [para. 6]; sect. 605(1) [para. 29]; sect. 676(1)(a) [para. 13].
Criminal Law Amendment Act, S.C. 1985, c. 19, generally [para. 37].
Supreme Court Act, R.S.C. 1985, c. S-26, sect. 45 [para. 42].
Authors and Works Noticed:
Driedger, E.A., Construction of Statutes (2nd Ed. 1983), p. 105 [para. 38].
Libman, Rick, Annotation: R. v. Aujla (1989), 13 M.V.R.(2d) 276, p. 279 [para. 38].
Pomerance, Renee M., “Over 80” and Under Scrutiny: Selected Charter Issues in Drinking and Driving Cases (1992), 4 J.M.V.L. 121, p. 167 [para. 35].
Counsel:
David F. Younggren, for the appellant;
Peter W.L. Martin, Q.C., for the Crown.
Solicitors of Record:
Dunphy Calvert, Calgary, Alberta, for the appellant;
Office of the Attorney General for Alberta, Calgary, Alberta, for the respondent.
This appeal was heard on October 9, 1992, before L’Heureux-Dubé, Sopinka, Cory, McLachlin and Iacobucci, JJ., of the Supreme Court of Canada. On June 10, 1993, Sopinka, J., delivered the following judgment in both official languages for the court.
