The fate of two Central Alberta men who claim their constitutional rights were violated because they were limited by three-year-old legislation will be decided by the Supreme Court of Canada.
Justice John McCarthy of Calgary granted a request for an adjournment of a summary appeal conviction in Red Deer Court of Queen’s Bench on Wednesday, pending the October high court case in Ottawa.
Defence lawyer Kevin Sproule said that it would be a waste of time and effort to argue the appeal since two cases from Quebec and Ontario have been granted leave to be heard by the high court.
“It simply makes sense to hold off,” said Sproule, who is representing Kevin Kondro and Christopher Adams on the appeal.
Both men were convicted and sentenced last fall of impaired driving following provincial court trials in Stettler.
They were among a group of more than a dozen people charged with impaired driving and represented by Sproule, who argued that their constitutional rights were violated because a possible technical defence was limited.
Sproule then used two of the cases to appeal to Queen’s Bench.
Legislation passed in 2008 places the onus on the defence to prove that breathalyzer machines weren’t working properly when blood-alcohol readings were taken by police.
Previously, the defence could call an expert on blood-alcohol absorption rates and its expulsion from the body to theorize that readings may not have been as high as recorded.
It was then up to the judge to weigh the facts from the readings and the expert’s evidence to form his decision.
The defence theory is that the information in the machine could be flawed and Sproule argued for a private expert to test the data.
Provincial court Judge Bart Rosborough ruled last October in at least two of Sproule’s cases that the rights of the accused weren’t violated.
It was the first ruling in Alberta and the fifth in Canada upholding the constitutionality of the new legislation, Chief Red Deer Crown prosecutor Anders Quist said at the time.
Quist said the courts in different provinces don’t have to listen to each other.
“The only one court everyone has to listen to is the Supreme Court,” Quist said.
The court determined that the Crown didn’t have to turn over the internal computer of the breathalyzer machines for defence analysis.
Richard Albert Duff and Kevin Kondro of the Stettler area were convicted of impaired driving. Duff was fined $1,800 and had his licence suspended for 15 months. Kondro was jailed for 14 days and had his licence suspended for 15 months.
Although Duff’s case wasn’t before the court on Wednesday, the ruling in his case is expected to be used by the Alberta Attorney General’s Department, which is expected to act as an intervenor in the Supreme Court case.
Sproule said it then could be another six months before the high court delivers its decision.
jwilson@www.reddeeradvocate.com