R. v. Hynes (A.J.A.), (1990) 86 Nfld. & P.E.I.R. 266 (NFPC)

JudgeGoulding, P.C.J.
CourtNewfoundland and Labrador Provincial Court (Canada)
Case DateOctober 23, 1990
JurisdictionNewfoundland and Labrador
Citations(1990), 86 Nfld. & P.E.I.R. 266 (NFPC)

R. v. Hynes (A.J.A.) (1990), 86 Nfld. & P.E.I.R. 266 (NFPC);

    268 A.P.R. 266

MLB headnote and full text

Her Majesty The Queen v. Alexander Joseph Aloysius Hynes

Indexed As: R. v. Hynes (A.J.A.)

Newfoundland Provincial Court

Judicial Centre of Grand Falls

Goulding, P.C.J.

October 23, 1990.

Summary:

The accused was stopped on the highway and given an A.L.E.R.T. demand. The accused could not provide a breath sample for medical reasons. The police then demanded a blood sample. The accused provided the sample as requested. However, the kit used to take the samples had expired. Also, the vials used to ship the blood samples for analysis were not approved containers as required by s. 258(1)(d), (iv) and (v) of the Criminal Code. The accused was charged with impaired driving on the basis of the test results. At the trial, the accused submitted that the certificate of analysis and the presumption of impairment in s. 258 could not be relied upon because of the use of unapproved containers. The Crown also attempted to prove impairment on the basis of the analyst's expert opinion based on the alcohol level in the blood sample, the accused's weight and the time that the alcohol was consumed. The accused claimed that the opinion was invalid because there was no proof of the accused's weight or when the alcohol was consumed.

The Newfoundland Provincial Court acquitted the accused.

Criminal Law - Topic 1362

Offences against person and reputation - Motor vehicles - Impaired driving - Evidence - Expert opinion - The accused was charged with impaired driving on the basis of a blood sample - The presumption of impairment contained s. 258(1)(d) of the Code could not be relied upon because the container used was not an approved type - The Crown attempted to prove impairment on the basis of the analyst's expert opinion - The analyst submitted that the accused would be impaired given the alcohol level in the blood sample, provided the accused's weight was "X" and that no alcohol was consumed within a half an hour of the offence - The Newfoundland Provincial Court acquitted the accused - See paragraphs 14 to 16.

Criminal Law - Topic 1374

Motor vehicles - Impaired driving - Breathalyzer - Evidence - Certificate evidence of results of blood test - The accused was charged with impaired driving on the basis of a blood sample - The vials used to send the blood for analysis were not an approved type of container - The accused submitted that the presumption of impairment provided by the certificate of analysis could not be relied upon because the containers were not approved - The Crown claimed that the blood sample analyzed was received in perfect condition - The Newfoundland Provincial Court held that the Crown could not rely upon the presumption in s. 258(1)(d) of the Code - See paragraph 13.

Statutes Noticed:

Criminal Code, R.S.C. 1985, c. C-46, sect. 253(b) [para. 1]; sect. 254(1)(b) [para. 11]; sect. 258(1)(d) [paras. 12, 13, 16]; sect. 258(1)(i) [para. 17].

Counsel:

Counsel not disclosed.

This matter was heard by Goulding, P.C.J., of the Newfoundland Provincial Court, in Harbour Breton, who delivered the following judgment orally on October 23, 1990.

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