R. v. Clarke, (1977) 12 Nfld. & P.E.I.R. 182 (NFCA)

• Judge: Furlong, C.J.N., Morgan and Gushue, JJ.A.
• Court: Court of Appeal (Newfoundland)
• Case Date: April 28, 1977
• Jurisdiction: Newfoundland and Labrador
• Citations: (1977), 12 Nfld. & P.E.I.R. 182 (NFCA)

R. v. Clarke (1977), 12 Nfld. & P.E.I.R. 182 (NFCA);

    25 A.P.R. 182

MLB headnote and full text

R. v. Clarke

Indexed As: R. v. Clarke

Newfoundland Supreme Court

Court of Appeal

Furlong, C.J.N., Morgan and Gushue, JJ.A.

April 28, 1977.

Summary:

This case arose out of a charge of having care and control of a motor vehicle 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 was charged and acquitted before a magistrate and the Crown's appeal by way of a trial de novo was dismissed by the Newfoundland District Court. The Crown appealed.

The Newfoundland Court of Appeal allowed the appeal and convicted the accused. The Court of Appeal held that the trial judge was in error in refusing to admit the technician certificate into evidence and in failing to find that the accused was in care and control of his motor vehicle.

Criminal Law - Topic 1367

Motor vehicles - Impaired driving - Care and control - Meaning of - Criminal Code of Canada, R.S.C. 1970, c. C-34, s. 237(1)(a) - The accused was found impaired in the driver's seat of his motor vehicle - The accused admitted driving the vehicle and that he intended to do so again - The Newfoundland Court of Appeal held that the accused was in care and control - See paragraphs 9-14.

Criminal Law - Topic 1368

Motor vehicles - Impaired driving - Care and control - Burden of proof of care and control where accused found in driver's seat - Criminal Code of Canada, R.S.C. 1970, c. C-34, s. 237(1)(a) - The Newfoundland Court of Appeal held that the burden of proof on an accused that he did not enter the vehicle for the purpose of setting it in motion was on a balance of the probabilities or by a preponderance of the evidence - See paragraph 13.

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 Newfoundland Court of Appeal held that the trial judge was in error in refusing to admit a technician's certificate into evidence, where the one breathalyzer test required was properly performed and a notice of intention to use the certificate in evidence was given to the accused - See paragraphs 4-8.

Cases Noticed:

R. v. Appleby (1971), 21 D.L.R.(3d) 325, appld. [para. 9].

Statutes Noticed:

Criminal Code of Canada, R.S.C. 1970, c. C-34, sect. 236 [para. 4]; sect. 237(1)(a) [para. 11]; sect. 237(1)(c) [para. 5].

Counsel:

G.G. Sweezey, for the Crown;

Robert Wells, Q.C., for the accused.

This case was heard on January 19, 1977, at St. John's, Newfoundland, before FURLONG, C.J.N., MORGAN and GUSHUE, JJ.A., of the Newfoundland Court of Appeal.

On April 28, 1977, GUSHUE, J.A., delivered the following judgment of the Court of Appeal: