R. v. Flynn (B.P.), (1996) 138 Sask.R. 315 (QB)

• Judge: MacLean, J.
• Court: Court of Queen's Bench of Saskatchewan (Canada)
• Case Date: January 03, 1996
• Jurisdiction: Saskatchewan
• Citations: (1996), 138 Sask.R. 315 (QB)

R. v. Flynn (B.P.) (1996), 138 Sask.R. 315 (QB)

MLB headnote and full text

Bernard Paul Flynn (appellant) v. Her Majesty The Queen (respondent)

(1995 Q.B. No. 45)

Indexed As: R. v. Flynn (B.P.)

Saskatchewan Court of Queen's Bench

Judicial Centre of Moose Jaw

MacLean, J.

January 3, 1996.

Summary:

The accused appealed his conviction for operating a motor vehicle while his blood­alcohol level exceeded the legal limit.

The Saskatchewan Court of Queen's Bench allowed the appeal.

Criminal Law - Topic 1362

Motor vehicles - Impaired driving - Evi­dence and proof - The accused was con­victed of operating a motor vehicle with an excessive blood-alcohol level - Because the breathalyzer tests were not taken with­in the two hour time limit, the statutory presumption did not arise and the Crown had to prove that the accused's blood­alcohol level was over .08 at the relevant time - A Crown expert testified respecting the accused's blood-alcohol level - The trial judge noted the expert's assumption that there was a normal rate of alcohol con­sumption by the accused and concluded that if the consumption was other than normal, the burden was on the accused to establish that fact - The Saskatchewan Court of Queen's Bench set aside the conviction - There was no burden upon the accused to rebut the Crown's evidence.

Evidence - Topic 7009

Opinion evidence - Expert evidence - General - Proof of assumptions - [See Criminal Law - Topic 1362 ].

Cases Noticed:

R. v. Nelson (1982), 16 Sask.R. 391 (Dist. Ct.), consd. [para. 10].

R. v. Reed (1982), 18 Sask.R. 357 (Q.B.), consd. [para. 11].

R. v. English (1982), 47 Alta. L.R.(2d) 372 (C.A.), consd. [para. 12].

R. v. Dean (1992), 127 A.R. 376; 20 W.A.C. 376; 37 M.V.R.(2d) 238 (C.A.), consd. [para. 14].

R. v. Lavallee, [1990] 1 S.C.R. 852; 108 N.R. 321; 67 Man.R.(2d) 1, refd to. [para. 14].

R. v. Isleifson (1986), 42 M.V.R. 309 (Ont. H.C.), refd to. [para. 16].

Counsel:

J.F. Rybchuk, for the appellant;

W.A. Wall, Q.C., for the respondent.

This appeal was heard before MacLean, J., of the Saskatchewan Court of Queen's Bench, Judicial Centre of Moose Jaw, who delivered the following judgment on January 3, 1996.