R. v. Ali, (1979) 21 Nfld. & P.E.I.R. 361 (SCC)

• Judge: Ritchie, Pigeon, Dickson, Beetz, Estey, Pratte and McIntyre, JJ.
• Court: Supreme Court (Canada)
• Case Date: June 14, 1979
• Jurisdiction: Canada (Federal)
• Citations: (1979), 21 Nfld. & P.E.I.R. 361 (SCC);3 WCB 363;21 Nfld & PEIR 361;2 MVR 75;56 APR 361;51 CCC (2d) 282;27 NR 243;10 CR (3d) 136;[1980] 1 SCR 221;1979 CanLII 174 (SCC);108 DLR (3d) 41

R. v. Ali (1979), 21 Nfld. & P.E.I.R. 361 (SCC);

    56 A.P.R. 361

MLB headnote and full text

R. v. Ali

Indexed As: R. v. Ali

Supreme Court of Canada

Ritchie, Pigeon, Dickson, Beetz, Estey, Pratte and McIntyre, JJ.

June 14, 1979.

Summary:

This case arose out of a charge against the accused of driving with an excessive blood-alcohol content contrary to s. 236 of the Criminal Code of Canada, R.S.C. 1970. c. C-34. The accused submitted to a breathalyzer test on April 22, 1976. On May 7, 1976, an amendment to s. 237(1)(c) of the Criminal Code was proclaimed, which required two or more samples of breath to be taken, instead of only one. The information against the accused was laid in June, 1976, and he was convicted. The accused appealed by way of a stated case. The Newfoundland Supreme Court, Trial Division, in a judgment reported 14 Nfld. & P.E.I.R. 202; 33 A.P.R. 202, dismissed the appeal. The Trial Division held that the trial judge was correct in ruling that the new requirement for two or more breath samples did not apply retroactively to breathalyzer tests taken before the amendment became effective. The accused appealed.

The Newfoundland Court of Appeal in a judgment reported 15 Nfld. & P.E.I.R. 104; 38 A.P.R. 104, allowed the appeal and acquitted the accused. The Court of Appeal held that the new requirement was procedural and applied retroactively to breathalyzer tests taken before the amendment became effective. The Crown appealed.

The Supreme Court of Canada allowed the appeal and held that the new requirement was not retroactive to breathalyzer tests taken before the amendment became effective. See paragraphs 1 to 34.

Ritchie and Estey, JJ., dissenting, would have dismissed the appeal and were of the opinion that, where the new requirement was procedural in nature, it should be applied retroactively. See paragraphs 35 to 49.

Criminal Law - Topic 1374

Motor vehicles - Impaired driving - Breathalyzer - Certificate evidence of results of analysis of breath sample - Criminal Code of Canada, R.S.C. 1970, c. C-34, s. 237(1)(c) - The Supreme Court of Canada held that the new requirement of s. 237(1)(c) of two or more breath samples was not retroactive to breathalyzer tests taken before the amendment became effective - See paragraphs 1 to 34.

Statutes - Topic 6703

Operation and effect - Retrospective enactments - What constitutes - The Supreme Court of Canada held that the new requirement of s.237(1)(c) of the Criminal Code of Canada, R.S.C. 1970, c. C-34, of two or more breath samples was not retroactive to breathalyzer tests taken before the amendment became effective - The Supreme Court of Canada held that, even if the enactment was procedural, it was not to be applied retroactively, where Parliament plainly intended that it operate only prospectively - See paragraphs 17 to 24.

Statutes - Topic 6907

Repeal - Effect of repeal on operation of repealed statute - Interpretation Act, R.S.C. 1970, c. I-23, s. 35(b) - The accused submitted to a breathalyzer test at a time when the Criminal Code required that only one breath sample be given - Before the trial of the accused on a charge of impaired driving the Criminal Code of Canada was amended to require two or more breath samples - The Supreme Court of Canada held that the subsequent repeal of the provision applicable to the accused at the time when he submitted to the test did not affect the operation of the repealed provision with regard to the charge against the accused - See paragraphs 25 to 27.

Cases Noticed:

R. v. Noble (1977), 17 N.R. 555; 19 N.B.R.(2d) 417; 30 A.P.R. 417; [1978] 1 S.C.R. 632, refd to. [para. 5].

Moon v. Durden (1848), 2 Ex. 22, appld. [para. 17].

Kimbray v. Draper (1868), L.R. 3 Q.B. 160, appld. [para. 17].

Republic of Costa Rica v. Erlanger (1876), 3 Ch. D. 62, appld. [para. 17].

Gardner v. Lucas (1878), 3 A.C. 582, appld. [para. 17].

Hickson v. Darlow (1883), 23 Ch. D. 690, appld. [para. 21].

Upper Canada v. Smith, 61 S.C.R. 413, appld. [para. 21].

R. v. LeSarge, 26 C.C.C.(2d) 388, appld. [para. 21].

R. v. MacGregor (1978), 9 A.R. 141; 39 C.C.C.(2d) 401, folld. [para. 23].

Surtees v. Ellison (1829), 9 B. & C. 750, refd to. [para. 26].

R. v. The Leeds and Bradford Railway Company (1852), 18 Q.B. 343, not folld. [para. 28].

Re Athlumney, [1898] 2 Q.B. 547, consd. [para. 29].

Howard Smith Paper Mills Ltd. v. The Queen, [1957] S.C.R. 403, dist. [para. 32].

R. v. Lesarge, 26 C.C.C.(2d) 388, consd. [para. 43].

R. v. Bourassa (1978), 38 C.C.C.(2d) 110, consd. [para. 47].

Statutes Noticed:

Criminal Code of Canada, R.S.C. 1970, c. C-34, sect. 235 [para. 20]; sect. 237 [para. 19].

Interpretation Act, R.S.C. 1970, c. I-23, sect. 35(b) [para. 26]; sect. 36(d) [para. 24].

Authors and Works Noticed:

Craies on Statute Law (7th Ed.), p. 395 [para. 30].

Odger's Construction of Deeds and Statutes (5th Ed.), p. 291 [para. 30].

Maxwell on Interpretation of Statutes (12th Ed.), p. 227 [para. 30].

Counsel:

David F. Hurley, for the appellant;

David C. Day, for the respondent.

This case was heard on February 6, 1979, at Ottawa, Ontario, before RITCHIE, PIGEON, DICKSON, BEETZ, ESTEY, PRATTE and McINTYRE, JJ., of the Supreme Court of Canada.

On June 14, 1979, the judgment of the Supreme Court of Canada was delivered and the following opinions were filed:

PRATTE, J. - see paragraphs 1 to 34;

RITCHIE, J., dissenting - see paragraphs 35 to 49.

PIGEON, DICKSON, BEETZ and McINTYRE, JJ., concurred with PRATTE, J.

ESTEY, J., concurred with RITCHIE, J.