R. v. Dunlop, (1981) 36 A.R. 531 (QB)

• Judge: Wachowich, J.
• Court: Court of Queen's Bench of Alberta (Canada)
• Case Date: November 26, 1981
• Citations: (1981), 36 A.R. 531 (QB)

R. v. Dunlop (1981), 36 A.R. 531 (QB)

MLB headnote and full text

R. v. Dunlop

(No. 8111-0065A)

Indexed As: R. v. Dunlop

Alberta Court of Queen's Bench

Judicial District of Vegreville

Wachowich, J.

November 26, 1981

Summary:

An accused was convicted of driving with an excessive blood-alcohol content, contrary to s. 236(1) of the Criminal Code. The accused appealed against conviction. The Alberta Court of Queen's Bench allowed the appeal and acquitted the accused on the ground that the breathalyzer technician's certificates were inadmissible, because they were not properly served.

Criminal Law - Topic 1374

Motor vehicles - Impaired driving - Breathalyzer - Certificate evidence - As soon as practicable - An accused agreed at 1:54 a.m. to blow into a breathalyzer, but only if he could first contact his lawyer - He provided the breath sample at 2:27 a.m. - The Alberta Court of Queen's Bench held that the breath sample was taken "as soon as practicable" under s. 237(1)(c)(i) - See paragraph 10.

Criminal Law - Topic 4361

Procedure - Jury charge - Directions regarding identification - The Alberta Court of Queen's Bench set out the rules to be used by a judge instructing a jury on the issue of the identity of the accused - See paragraph 7.

Criminal Law - Topic 5253

Evidence - Identification - Proof of - The Alberta Court of Queen's Bench stated that it was unsafe to rely on testimony identifying the accused as the culprit, unless the witness could establish on what characteristics of the offender his impression of identity was based - See paragraph 6.

Evidence - Topic 1693

Hearsay rule - Exceptions - Official statements - Certificates - Admission of - An accused was given copies of the certificates of analysis and notice of the Crown's intention to produce them at trial - Before he had an opportunity to inspect the documents, they were taken from him when he was locked up - The Alberta Court of Queen's Bench held that the certificates were inadmissible, because there was improper service pursuant to s. 237(5) of the Criminal Code - See paragraphs 11 to 15.

Cases Noticed:

R. v. Smith, [1952] O.R. 432 (Ont. C.A.), ref'd to. [para. 6].

R. v. Turnbull and others, [1976] 3 All E.R. 549 (Cr. Crim. App.), consd. [para. 7].

R. v. Dunlop, Douglas and Sylvester (1976), 33 C.C.C.(2d) 342 (Ont. C.A.), ref'd to. [para. 8].

R. v. Lin and Lin (1979), 13 A.R. 597 (Alta. C.A.), ref'd to. [para. 8].

R. v. Duhamel (1980), 24 A.R. 215 (Alta. C.A.), ref'd to. [para. 8].

R. v. Fitzpatrick (1978), 2 M.V.R. 216; 22 A.R. 349 (Alta. S.C.T.D.), consd. [para. 10].

R. v. Mudry (1979), 19 A.R. 379 (Alta. C.A.), consd. [para. 10].

R. v. Carter (1980), 8 M.V.R. 108 (B.C.C.A.), consd. [para. 10].

R. v. Ashby (1980), 57 C.C.C.(2d) 348 (Ont. C.C.A.), consd. [para. 10].

R. v. Casagranda (1980), 25 A.R. 275 (Alta. Q.B.), consd. [para. 10].

Brownridge v. The Queen (1972), 7 C.C.C.(2d) 417; 18 C.R.N.S. 308; 28 D.L.R.(3d) 1 (S.C.C.), revg. 4 C.C.C.(2d) 462; 15 C.R.N.S. 387, consd. [para. 10].

R. v. Tunke (1975), 25 C.C.C.(2d) 518 (Alta. S.C.T.D.), appld. [para. 14].

Statutes Noticed:

Criminal Code, R.S.C. 1970, c. C-34, sect. 237(1)(c)(i) [paras. 10, 15]; sect. 237(5) [paras. 14 to 15].

Counsel:

E.M. Crane, for the appellant;

B.R. Fraser, for the respondent.

This appeal was heard before WACHOWICH, J., of the Alberta Court of Queen's Bench, Judicial District of Vegreville. The decision of WACHOWICH, J., was delivered at Edmonton, Alberta, on November 26, 1981.