Decision Content
R. v. Parker, 2015 NWTSC 69 S-1-CR-2015-000066
IN THE SUPREME COURT OF THE NORTHWEST TERRITORIES
IN THE MATTER OF:
HER MAJESTY THE QUEEN
- v -
COLTON DENNIS PARKER
__________________________________________________________
Transcript of the Oral Decision delivered by The Honourable
Justice A. M. Mahar, sitting in Yellowknife, in the
Northwest Territories, on the 10th day of December, 2015.
__________________________________________________________
APPEARANCES:
Mr. M. Lecorre: Counsel for the Crown
Ms. S. Prithipaul: Counsel for the Accused
(Charges under s. 253(1)(a), 253(1)(b) and 249.1(1) of
the Criminal Code of Canada)
1 THE COURT: Good morning, everybody.
2 MR. LECORRE: Good morning. Your Honour.
3 THE COURT: Ms. Prithipaul, you're on the
4 phone?
5 MS. PRITHIPAUL: I am, My Lord.
6 THE COURT: All right. Mr. Lecorre, this
7 is the Colton Dennis Parker matter.
8 BACKGROUND
9 At trial on a charge under Section 253(1)(b)
10 of the Criminal Code of Canada, a voir dire was
11 held under Section 8 and 10 of the Charter to
12 determine the admissibility of the breathalyzer
13 readings. Several issues were raised and dealt
14 with, but the trial judge raised a separate issue
15 under Section 8 of the Charter; that the
16 reasonable and probable grounds on which the
17 police officer based the demand for a breath
18 sample relied on the use of a roadside screening
19 device that was not approved by Parliament.
20 One of the devices listed as approved is the
21 "Alcotest 7410 GLC". At trial, the officer
22 identified the device as a "Drager
23 Alcotest 7410 GLC". The trial judge made the
24 following findings as a result, at page 217:
25 I find it interesting that the case
law, as I understand it, is that the
26 peace officer can say an approved
screening device, and that is the
27 end of it unless there is a
challenge, and then it is proved it
1
1 was an approved screening device.
In this case the peace officer
2 describes the device he used as a
Drager Alcotest GLC and effectively
3 proved that it was not an approved
screening device.
4
5 And, in conclusion at page 236:
6 ... how reliable can the officer's
evidence be if I cannot rely on him
7 to describe and use the regulated
approved screening device. It seems
8 to me and I find that it could bring
the administration of justice into
9 disrepute if Parker in particular
was convicted based on a peace
10 officer running around with an
instrument that the Crown has not
11 proven is an approved screening
device. So it is an issue of
12 reliability, not credibility, and I
am going to exclude the certificate.
13
14 Defence counsel at trial adopted the judge's
15 reasoning for obvious reasons. Crown counsel
16 argued, at page 192 of the transcript, that:
17 ... in describing the device as a
Drager Alcotest 7410 GLC the officer
18 is just providing additional
information. It would be no
19 different than saying the Alcotest
7410 GLC made by Drager. It's a
20 descriptor.
21 ANALYSIS
22 The law dealing with drinking and driving
23 offences has become highly technical and complex.
24 We have not reached the point, however, where the
25 ordinary meaning of words and the commonly
26 understood rules of semantic construction no
27 longer apply. A Drager Alcotest 7410 GLC is an
2
1 Alcotest 7410 GLC. The words used by Parliament
2 in the order - "Alcotest 7410 GLC" - are
3 sufficient and the addition of a modifier before
4 or after the specific required words does not
5 make them any less sufficient. In finding that
6 the addition of the word Drager turned the device
7 described into one that was not approved, the
8 learned trial judge was drawing a legal
9 conclusion and made a clear error of law.
10 I disagree, respectfully, with the position
11 of the respondent that the trial judge's findings
12 are findings of credibility with respect to the
13 police witness. Any such findings flow from the
14 error of law and are not in any true sense
15 findings of credibility.
16 I cannot state the principles in this appeal
17 more clearly than was stated by Justice Durno in
18 R. v. Neziol [2001] O.J. No. 4372, at paragraph
19 27.
20 It is not necessary to resolve the
conflicting decisions in the Supreme
21 Court where something is missing
from the "approved" designation. In
22 this case, there is a word before.
Parliament has approved the Alcotest
23 7410 GLC. It was not unreasonable
for the trial judge to conclude the
24 name, Drager, was a manufacturer,
judicial notice aside. By approving
25 the Alcotest 7410 GLC without a
manufacturer's name, it is an
26 approved instrument regardless of
the manufacturer's name.
27
3
1 DECISION
2 The error in this case was not trivial or
3 insignificant. It formed the basis for the trial
4 judge's decision to exclude the certificate. The
5 appeal is allowed.
6 The appellant asks that I substitute a
7 finding of guilt in this case. While there does
8 not appear to be much dispute about the basic
9 facts and the defence did not call evidence at
10 trial, the parties do not agree about the legal
11 conclusions to be drawn from these facts. I
12 would only move to substitute a verdict in the
13 clearest of cases and this case is not quite at
14 that threshold. A new trial is ordered.
15 Thank you both for your attendance here this
16 morning. We will close court.
17 .................................
18
19
20 Certified Pursuant to Rule 723
of the Rules of Court
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23
Jane Romanowich, CSR(A)
24 Court Reporter
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