R. v. Carter, (1985) 7 O.A.C. 344 (CA)

• Judge: Martin, Lacourcière and Finlayson, JJ.A.
• Court: Court of Appeal (Ontario)
• Case Date: January 24, 1985
• Jurisdiction: Ontario
• Citations: (1985), 7 O.A.C. 344 (CA);1985 CanLII 168 (ON CA);1985 CanLII 168 (NS CA);19 CCC (3d) 174;[1985] CarswellOnt 2;[1985] OJ No 1390 (QL);31 MVR 1;7 OAC 344

R. v. Carter (1985), 7 O.A.C. 344 (CA)

MLB headnote and full text

R. v. Carter

Indexed As: R. v. Carter

Ontario Court of Appeal

Martin, Lacourcière and Finlayson, JJ.A.

February 15, 1985.

Summary:

The accused was charged with driving while having an excessive blood-alcohol content, contrary to s. 236 of the Criminal Code of Canada. The accused was also charged with impaired driving, contrary to s. 234 of the Code. The trial judge acquitted the accused on both charges. The Crown appealed to the County Court pursuant to s. 748 of the Code, respecting the s. 236 charge.

The Ontario County Court allowed the appeal and ordered a new trial. The accused applied for leave to appeal.

The Ontario Court of Appeal granted leave, allowed the appeal, and restored the verdict of acquittal.

Criminal Law - Topic 1374

Motor vehicles - Impaired driving - Breathalyzer - Certificate evidence - Evidence to the contrary - The Ontario Court of Appeal held that since the breathalyzer instrument was intended to measure the quantity of alcohol in the person being tested, any evidence as to how much alcohol that person in fact consumed was relevant evidence and if accepted could raise a doubt as to the accuracy of the breathalyzer reading - The court held that a similar conclusion was possible if the reading came from a blood sample - See paragraphs 13 to 17.

Cases Noticed:

R. v. Crosthwait (1980), 31 N.R. 603; 52 C.C.C.(2d) 129, refd to. [para. 14].

R. v. Colbeck (1978), 42 C.C.C.(2d) 117 (Ont. C.A.), refd to. [para. 17].

Regina v. Davis (1974), 14 C.C.C.(2d) 513 (B.C.C.A.), consd. [para. 18].

Statutes Noticed:

Criminal Code of Canada, R.S.C. 1970, c. C-34, sect. 236 [paras. 13, 17]; sect. 613(4) [para. 17]; sect. 755(4) [para. 17].

Counsel:

V.I. Balaban, for the appellant;

David H. Doherty, for the respondent.

This appeal was heard before Martin, Lacourcière and Finlayson, JJ.A., of the Ontario Court of Appeal on January 24, 1985. The decision of the Court of Appeal was delivered by Finlayson, J.A., and released on February 15, 1985.