R. v. Jenkins, (1978) 32 N.S.R.(2d) 557 (CoCt)

• Case Date: December 12, 1978
• Jurisdiction: Nova Scotia
• Citations: (1978), 32 N.S.R.(2d) 557 (CoCt)

R. v. Jenkins (1978), 32 N.S.R.(2d) 557 (CoCt);

    54 A.P.R. 557

MLB headnote and full text

R. v. Jenkins

(CH 25765)

Indexed As: R. v. Jenkins

Nova Scotia County Court

District Number One

O Hearn, C.C.J.

December 12, 1978.

Summary:

This case arose out of a charge of driving after consuming an excessive amount of alcohol, contrary to s. 236 of the Criminal Code. The Crown relied on certificate evidence under s. 237. The accused was given a breathalyzer test in a heated van. The technician heated the standard alcohol solution so that it would be within 1 degree centigrade of the room temperature in the van. The accused argued that this was improper procedure and amounted to "evidence to the contrary" within s. 237(1)(c) of the Criminal Code. The trial judge convicted the accused. The accused appealed.

The Nova Scotia County Court dismissed the appeal.

Criminal Law - Topic 1374

Motor vehicles - Impaired driving - Breathalyzer - Certificate evidence of results of analysis of breath sample - What constitutes "evidence to the contrary" in s. 237(1)(c) of the Criminal Code - The Crown relied on certificate evidence under s. 237 and the accused was convicted of driving after consuming an excessive amount of alcohol, contrary to s. 236 of the Criminal Code - The operator of the breathalyzer machine heated the standard alcohol solution on a heating register to raise the temperature of the solution to that of the room temperature of the van in which the test was conducted - The accused argued that this procedure was not proper and amounted to "evidence to the contrary" within s. 237 - The Nova Scotia County Court dismissed the accused's appeal and held that "evidence to the contrary" amounts to a prima facie case by the defence sufficient to meet the Crown's prima facie case - See paragraph 7 - The County Court held that speculative possibilities of error do not amount to such evidence - See paragraph 9.

Cases Noticed:

R. v. Bausman (1976), 31 C.C.C. 267, refd to. [para. 5].

R. v. Dygdala (1977), 1 A.R. 359, appld. [para. 5].

R. v. Sherman (1979), 29 N.S.R.(2d) 355; 45 A.P.R. 355, refd to. [para. 6].

R. v. MacDonald (1979), 29 N.S.R.(2d) 635; 45 A.P.R. 635, refd to. [para. 6].

R. v. Proudlock (1979), 24 N.R. 199; (1978), 5 C.R.(3d) 21 (S.C.C.), appld. [para. 6].

R. v. Moreau (1978), 23 N.R. 541, refd to. [para. 9].

Statutes Noticed:

Criminal Code of Canada, R.S.C. 1970, c. C-34, sect. 237(1)(c) [para. 6].

Counsel:

Brian Norton, for the Crown;

Peter M. Landry, and Michael Leblanc, for the defendant, appellant.

This case was heard at Halifax, Nova Scotia, before O HEARN, C.C.J., of the Nova Scotia County Court.

On December 12, 1978, O HEARN, C.C.J., delivered the following judgment: