R. v. Dauphine, (1977) 18 N.B.R.(2d) 148 (CA)

• Judge: Hughes, C.J.N.B., Bugold and Ryan, JJ.A.
• Court: Court of Appeal (New Brunswick)
• Case Date: June 17, 1977
• Jurisdiction: New Brunswick
• Citations: (1977), 18 N.B.R.(2d) 148 (CA)

R. v. Dauphine (1977), 18 N.B.R.(2d) 148 (CA);

    18 R.N.-B.(2e) 148; 26 A.P.R. 148

MLB headnote and full text

Sommaire et texte intégral

R. v. Dauphine

Indexed As: R. v. Dauphine

Répertorié: R. v. Dauphine

New Brunswick Court of Appeal

Hughes, C.J.N.B., Bugold and Ryan, JJ.A.

June 17, 1977.

Summary:

Résumé:

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. Samples of the breath of the accused were taken for analysis in the breathalyzer machine at 2:35 and 2:50. At the accused's trial the judge of the Provincial Court accepted certificate evidence of the analysis of the breath samples of the accused and convicted the accused. The accused appealed by way of a stated case.

The New Brunswick Court of Appeal allowed the appeal and acquitted the accused. The Court of Appeal held that the certificate evidence was inadmissible because "at least fifteen minutes" had not elapsed between tests within the meaning of s. 237(1)(c)(ii).

Criminal Law - Topic 1374

Motor vehicle - 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)(ii) - Time interval between breath tests - Meaning of "at least fifteen minutes" - The breath of the accused was analyzed at 2:35 and 2:50 - The New Brunswick Court of Appeal acquitted the accused on a charge of impaired driving on the ground that certificate evidence was inadmissible because at least 15 minutes had not elapsed between tests.

Time - Topic 783

Computation of time - Particular terms - "At least" - S. 237(1) (c)(ii) of the Criminal Code of Canada, R.S.C. 1970, c. C-34, provided that the two breath tests of a person suspected of impaired driving must be taken "at least fifteen minutes" apart - The breath of the accused was analyzed at 2:35 and 2:50 - The New Brunswick Court of Appeal acquitted the accused on a charge of impaired driving on the ground that certificate evidence was inadmissible because at least 15 minutes had not elapsed between tests.

Words and Phrases

At least fifteen minutes - The New Brunswick Court of Appeal discussed the meaning of "at least fifteen minutes" in Criminal Code of Canada, R.S.C. 1970, c. C-34, s. 237(1)(c)(ii).

Cases Noticed:

Ashton v. Powers (1921), 51 O.L.R. 309, folld. [para. 5].

Rightside Properties Ltd. v. Gray, [1974] 2 All E.R. 1169, folld. [para. 5].

R. v. Staiger, [1977] 1 W.W.R. 457; 2 A.R. 427, folld. [para. 6].

Statutes Noticed:

Criminal Code of Canada, R.S.C. 1970, c. C-34, sect. 237(1)(c)(ii) [para. 4].

Counsel:

Earl A. Brewer, for the accused;

Manu C. Patel, for the Crown.

This case was heard on April 12, 1977, at Fredericton, N.B., before HUGHES, C.J.N.B., BUJOLD and RYAN, JJ.A., of the New Brunswick Supreme Court, Appeal Division.

On June 17, 1977, HUGHES, C.J.N.B., delivered the following judgment for the Appeal Division: