Case information
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37395
Kevin Patrick Gubbins v. Her Majesty the Queen
(Alberta) (Criminal) (By Leave)
Docket
Judgments on applications for leave to appeal are rendered by the Court, but are not necessarily unanimous.
| Date | Proceeding | Filed By (if applicable) |
|---|---|---|
| 2018-11-21 | Appeal closed | |
| 2018-10-29 | Formal judgment sent to the registrar of the court of appeal and all parties | |
| 2018-10-29 | Judgment on appeal and notice of deposit of judgment sent to all parties | |
| 2018-10-26 |
Judgment on the appeal rendered, CJ Abe Mo Ka Ga Côt Br Row Mar, The appeal from the judgment of the Court of Appeal of Alberta (Edmonton), Number 1503-0099-A, 2016 ABCA 358, dated November 15, 2016, heard on February 6, 2018, is dismissed. Côté J. dissents. Dismissed |
|
| 2018-02-21 | Transcript received, (joint with 37403) (153 pages) | |
| 2018-02-06 | Judgment reserved OR rendered with reasons to follow | |
| 2018-02-06 |
Hearing of the appeal, 2018-02-06, CJ Abe Mo Ka Ga Côt Br Row Mar Judgment reserved |
|
| 2018-02-06 | Respondent's condensed book, (Book Form), (Joint with 37403)(14 copies)submitted in court room | Her Majesty the Queen |
| 2018-02-06 | Appellant's condensed book, (Book Form), (14 copies) submitted in court room | Kevin Patrick Gubbins |
| 2018-01-23 | Notice of appearance, Thimothy E. Foster, Q.C. and Katherine Beyak will be appearing. Mr. Foster,Q.C. will present oral argument. | Kevin Patrick Gubbins |
| 2018-01-19 | Notice of appearance, (Letter Form), Robert J. Palser and Jason R. Russell will be appearing. Mr. Palser will present oral argument. | Her Majesty the Queen |
| 2018-01-19 | Notice of appearance, (Letter Form), Michael Fawcett and Philip Perlmutter will be appearing. Mr. Fawcett will present oral argument. | Attorney General of Ontario |
| 2017-11-22 | Notice of hearing sent to parties | |
| 2017-11-22 |
Appeal hearing scheduled, 2018-02-06, (Previously scheduled for December 8, 2017) Judgment reserved |
|
| 2017-11-08 | Letter advising the parties of tentative hearing date and filing deadlines (Leave granted), (Tentatively scheduled for February 6, 2018) | |
| 2017-11-01 | Intervener's book of authorities, (Book Form), Joint with 37403, Completed on: 2017-11-01 | Attorney General of Ontario |
| 2017-11-01 | Intervener's factum, (Book Form), Joint with 37403, Completed on: 2017-11-01 | Attorney General of Ontario |
| 2017-10-12 |
Order by, CJ, IT IS HEREBY ORDERED THAT the above appeals scheduled to be heard on December 8, 2017, are traversed to the 2018 Winter session. The Registrar shall fix a new hearing date. Adjourned |
|
| 2017-09-29 | Appeal perfected for hearing | |
| 2017-09-22 | Respondent's book of authorities, (Book Form), Joint with 37403, Completed on: 2017-09-22 | Her Majesty the Queen |
| 2017-09-22 | Respondent's factum, (Book Form), Joint with 37403, Completed on: 2017-09-22 | Her Majesty the Queen |
| 2017-09-20 | Order on motion for leave to intervene, (by GASCON J.) | |
| 2017-09-20 |
Decision on the motion for leave to intervene, Ga, UPON APPLICATION by the Attorney General of Ontario for leave to intervene in the above appeals; AND UPON APPLICATION by the Director of criminal and penal prosecutions for leave to intervene in the appeal Darren John Chip Vallentgoed v. Her Majesty the Queen (37403); AND THE MATERIAL FILED having been read; IT IS HEREBY ORDERED THAT: The motion for leave to intervene of the Attorney General of Ontario is granted and the said intervener shall be entitled to serve and file a single factum common to both appeals not to exceed ten (10) pages in length, on or before November 1, 2017. The motion for leave to intervene of the Director of criminal and penal prosecutions is granted and the said intervener shall be entitled to serve and file a factum not to exceed ten (10) pages in length, on or before November 1, 2017, in the appeal Darren John Chip Vallentgoed v. Her Majesty the Queen (37403). The said (2) two interveners are each granted permission to present oral argument not exceeding five (5) minutes at the hearing of the appeals. The interveners are not entitled to raise new issues or to adduce further evidence or otherwise to supplement the record of the parties. Pursuant to Rule 59(1)(a) of the Rules of the Supreme Court of Canada, the interveners shall pay to the appellants and respondent any additional disbursements occasioned to them by theinterventions. Granted |
|
| 2017-09-20 | Submission of motion for leave to intervene, Ga | |
| 2017-09-05 | Response to the motion for leave to intervene, (Letter Form), Completed on: 2017-09-05 | Kevin Patrick Gubbins |
| 2017-08-29 | Response to the motion for leave to intervene, (Letter Form), Joint with 37403, Completed on: 2017-08-29 | Her Majesty the Queen |
| 2017-08-28 | Motion for leave to intervene, (Book Form), Completed on: 2017-08-28 | Attorney General of Ontario |
| 2017-08-18 | Notice of hearing sent to parties | |
| 2017-07-31 | Certificate of counsel (attesting to record) | Kevin Patrick Gubbins |
| 2017-07-31 | Appellant's book of authorities, (Book Form), 2 copies, Completed on: 2017-07-31 | Kevin Patrick Gubbins |
| 2017-07-31 | Appellant's record, (Book Form), Completed on: 2017-07-31 | Kevin Patrick Gubbins |
| 2017-07-31 | Appellant's factum, (Book Form), Completed on: 2017-07-31 | Kevin Patrick Gubbins |
| 2017-06-05 | Notice of appeal, Completed on: 2017-06-05 | Kevin Patrick Gubbins |
| 2017-05-10 | Letter advising the parties of tentative hearing date and filing deadlines (Leave granted) | |
| 2017-05-05 | Copy of formal judgment sent to Registrar of the Court of Appeal and all parties | |
| 2017-05-05 | Judgment on leave sent to the parties | |
| 2017-05-04 |
Judgment of the Court on the application for leave to appeal, The application for leave to appeal from the judgment of the Court of Appeal of Alberta (Edmonton), Number 1503-0099-A, 2016 ABCA 358, dated November 15, 2016, is granted. The appeal will be heard with Darren John Chip Vallentgoed v. Her Majesty the Queen (37403). Granted |
|
| 2017-03-27 | All materials on application for leave submitted to the Judges, for consideration by the Court | |
| 2017-02-14 | Certificate (on limitations to public access) | Her Majesty the Queen |
| 2017-02-14 | Respondent's response on the application for leave to appeal, (Book Form), Joint with 37403, Completed on: 2017-02-14 | Her Majesty the Queen |
| 2017-01-16 | Letter acknowledging receipt of a complete application for leave to appeal, File opened on 2017-01-16 | |
| 2017-01-13 | Certificate (on limitations to public access) | Kevin Patrick Gubbins |
| 2017-01-13 | Application for leave to appeal, (Book Form), Completed on: 2017-01-13 | Kevin Patrick Gubbins |
Parties
Please note that in the case of closed files, the “Status” column reflects the status of the parties at the time of the proceedings. For more information about the proceedings and about the dates when the file was open, please consult the docket of the case in question.
Main parties
| Name | Role | Status |
|---|---|---|
| Gubbins, Kevin Patrick | Appellant | Active |
v.
| Name | Role | Status |
|---|---|---|
| Her Majesty the Queen | Respondent | Active |
Other parties
| Name | Role | Status |
|---|---|---|
| Attorney General of Ontario | Intervener | Active |
Counsel
Party: Gubbins, Kevin Patrick
Counsel
Katherin J. Beyak
100, 224 11th Avenue S.W.
Calgary, Alberta
T2R 0C3
Telephone: (403) 233-9239
FAX: (403) 263-9239
Email: tfoster@roadlawyers.ca
Agent
100- 340 Gilmour Street
Ottawa, Ontario
K2P 0R3
Telephone: (613) 695-8855 Ext: 102
FAX: (613) 695-8580
Email: mfmajor@supremeadvocacy.ca
Party: Her Majesty the Queen
Counsel
Robert J. Palser
3rd Floor, 9833 - 109 Street N.W.
Edmonton, Alberta
T5K 2E8
Telephone: (780) 422-5402
FAX: (780) 422-1106
Email: jason.russell@gov.ab.ca
Agent
160 Elgin Street
Suite 2600
Ottawa, Ontario
K1P 1C3
Telephone: (613) 786-8695
FAX: (613) 788-3509
Email: lynne.watt@gowlingwlg.com
Party: Attorney General of Ontario
Counsel
Philip Perlmutter
720 Bay Street, 10th Floor
Toronto, Ontario
M5G 2K1
Telephone: (416) 326-4600
FAX: (416) 326-4656
Email: michael.fawcett@ontario.ca
Agent
World Exchange Plaza
100 Queen Street, suite 1300
Ottawa, Ontario
K1P 1J9
Telephone: (613) 787-3562
FAX: (613) 230-8842
Email: neffendi@blg.com
Summary
Keywords
Criminal law - Evidence - Disclosure - Criminal Code offences - Motor vehicles - Impaired driving or driving over the legal limit - Breathalyzer or blood sample demand - Approved instrument or device - Crown refused disclosure of maintenance records for breathalyzer devices to accused charged with driving with blood alcohol level exceeding limit - Whether maintenance records for breathalyzer devices subject to first party disclosure rules.
Summary
Case summaries are prepared by the Office of the Registrar of the Supreme Court of Canada (Law Branch). Please note that summaries are not provided to the Judges of the Court. They are placed on the Court file and website for information purposes only.
The appellant, Mr. Gubbins, was detained on March 10, 2014. Samples of his breath were analysed, which showed two blood alcohol readings of 120 mg/%, and he was charged with driving “over 80”. The respondent Crown provided the standard breathalyzer disclosure package, and Mr. Gubbins then demanded the maintenance records for the approved instrument since it was imported into Canada and first put into use. The Crown took the view that these records were not in the possession of the Crown, or even the police, but were actually held by the third party contractor that maintained the equipment. A voir dire was held, in which the Crown called expert evidence to demonstrate that the requested records were irrelevant to making full answer and defence. The trial judge concluded that she was bound by R. v. Kilpatrick, 2013 ABQB 5, and that the records were subject to first party Stinchcombe disclosure. She entered a stay. The Crown’s appeal of the stay was dismissed. The Court of Appeal, however, allowed the Crown’s further appeal, lifted the stay and sent the matter for trial.
Lower court rulings
Provincial Court of Alberta
140367152P1, 2014 ABPC 195
Stay of proceedings ordered.
Court of Queen’s Bench of Alberta
1140367152S1, 2015 ABQB 206
The Crown’s appeal of the stay was dismissed.
Court of Appeal of Alberta (Edmonton)
1503-0099-A; 2016 ABCA 358
The Crown’s further appeal was allowed, the stay lifted and the matter sent for trial.
Memorandums of argument on application for leave to appeal
The memorandums of argument on an application for leave to appeal will be posted here 30 days after leave to appeal has been granted unless they contain personal information, information that is subject to a publication ban, or any other information that is not part of the public record. You may also obtain copies of the memorandum by filing out the Request for Court records form or by contacting the Court’s Records Centre either by email at records-dossiers@scc-csc.ca or by telephone at 613‑996‑7933 or at 1‑888‑551‑1185.
If you have questions about a memorandum of argument or want to use a memorandum of argument, please contact the author of the memorandum of argument directly. Their name appears at the end of the memorandum of argument. The contact information for counsel is found in the “Counsel” tab of this page.
Downloadable PDFs
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Related links
Factums on appeal
The factums of the appellant, the respondent and the intervener will be posted here at least 2 weeks before the hearing unless they contain personal information, information that is subject to a publication ban, or any other information that is not part of the public record. You may also obtain copies of factums by filling out the Request for Court records form or by contacting the Court’s Records Centre either by email at records-dossiers@scc-csc.ca or by telephone at 613‑996‑7933 or at 1‑888‑551‑1185.
If you have questions about a factum or want permission to use a factum, please contact the author of the factum directly. Their contact information appears on the first page of each factum.
Downloadable PDFs
Not available