R. v. Branscombe (W.D.), (1989) 97 N.B.R.(2d) 206 (PC)

• Judge: Harper, P.C.J.
• Court: Provincial Court of New Brunswick (Canada)
• Case Date: March 16, 1989
• Jurisdiction: New Brunswick
• Citations: (1989), 97 N.B.R.(2d) 206 (PC)

R. v. Branscombe (W.D.) (1989), 97 N.B.R.(2d) 206 (PC);

    97 R.N.-B.(2e) 206; 245 A.P.R. 206

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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Her Majesty The Queen v. Warren Dale Branscombe

Indexed As: R. v. Branscombe (W.D.)

New Brunswick Provincial Court

Harper, P.C.J.

March 16, 1989.

Summary:

The accused pleaded guilty to a charge under s. 237(b) of the Criminal Code. On sentencing, the Crown sought to rely on a notice of intention to seek greater punishment because of prior convictions, allegedly given to the accused pursuant to s. 592(1) of the Code.

The New Brunswick Provincial Court held that the accused was too intoxicated to be legally capable of receiving the Crown's notice of intention. Accordingly, the court held that the sentencing of the accused must proceed as if no notice had been given.

Criminal Law - Topic 1374

Motor vehicles - Impaired driving - Breathalyzer - Certificate evidence - The New Brunswick Provincial Court held that an accused whose blood-alcohol level was between .300 and .310 would be so intoxicated so as to render unreasonable service of a notice of intention to produce a breathalyzer certificate, as required by s. 237(5) of the Criminal Code - The court further held that a similarly intoxicated accused could not be said to have been "notified" by the Crown respecting the seeking of greater punishment for prior convictions within the meaning of s. 592(1) of the Code.

Criminal Law - Topic 5606

Punishments (sentence) - Increased punishment for prior convictions - Notice of intention to seek - [See Criminal Law - Topic 1374 above].

Evidence - Topic 1687

Hearsay rule - Exceptions and exclusions - Official statements - Certificates - Notice of intention to offer - [See Criminal Law - Topic 1374 above].

Cases Noticed:

R. v. Hamm (1976), 8 N.R. 253; 14 N.S.R.(2d) 627; 11 A.P.R. 627; 28 C.C.C.(2d) 257 (S.C.C.), consd. [para. 8].

Statutes Noticed:

Criminal Code, R.S.C. 1970, c. C-34, sect. 237(5) [paras. 6-7, 23, 25, 28]; sect. 592 [paras. 3, 6, 25-29].

Criminal Code, R.S.C. 1985, c. C-46, sect. 258(7) [paras. 6-7, 23, 25, 28]; sect. 665 [paras. 3, 6, 25-29].

Counsel:

[Not disclosed].

This sentencing was heard before Harper, P.C.J., of the New Brunswick Provincial Court, at Fredericton, New Brunswick, whose decision was delivered on March 16, 1989.