R. v. LeBlanc, (1972) 4 N.S.R.(2d) 29 (CA)

• Judge: McKinnon, C.J.N.S., Coffin and Cooper, JJ.A.
• Court: Supreme Court of Nova Scotia (Canada)
• Case Date: June 20, 1972
• Jurisdiction: Nova Scotia
• Citations: (1972), 4 N.S.R.(2d) 29 (CA)

R. v. LeBlanc (1972), 4 N.S.R.(2d) 29 (CA)

MLB headnote and full text

R. v. LeBlanc

Indexed As: R. v. LeBlanc

Nova Scotia Supreme Court

Appeal Division

Crown Side

McKinnon, C.J.N.S., Coffin and Cooper, JJ.A.

June 20, 1972.

Summary:

The appeal court dismissed the appeal and affixed the conviction of an accused on a charge of having care and control of a motor vehicle when his blood alcohol content exceeded 80 milligrams of alcohol, 100 millilitres of blood contrary to S. 224 of the Criminal Code.

The appeal was brought before the appeal court way of stated case and the appeal court answered questions raised as follows:

1. The trial judge could not take judicial notice of the designation of a police officer as a "qualified technician" to operate a breathalyzer machine. However, the court stated that the testimony of the police officer of his appointment raised a rebuttable presumption of his due appointment as a "qualified technician".

2. The trial judge could take judicial notice of the fact that the Borkenstein Breathalyzer is an "approved instrument" within the meaning of S. 224A(6)(c) of the Criminal Code.

3. The trial court was correct in holding that the appointment of the police officer as a "qualified technician" was properly made even though the appointment was made by regulation prior to the effective date of the statute conferring the regulation making power.

4. The trial court was correct in holding that the designation of the Borkenstein breathalyzer as an "approved" instrument was properly made even though the regulation making the designation was made prior to the effective date of the statute conferring the regulation making power.

5. The trial court was correct in holding that the Crown had proved its case beyond a reasonable doubt. The appeal court stated that whether there was a reasonable doubt was a question of fact to be decided by the trial judge and was not for consideration of the appeal court.

Criminal Law - Topic 1374

Motor vehicles - Impaired driving - Breathalyzer test - Evidence - Proof of appointment of operator of breathalyzer machine - The Nova Scotia Court of Appeal held that the testimony of the operator of his appointment establishes a rebuttable presumption that he was properly appointed - Paragraphs 20 - 26.

Criminal Law - Topic 7517

Jurisdiction to consider points of law not stated - Appeal by way of stated case - The Nova Scotia Court of Appeal held that it was proper for it to consider points of law not stated by the parties so long as no evidence could alter the point of law - Paragraphs 27 & 28.

Evidence - Topic 2282

Special modes of proof - Judicial notice - Machines or instruments - Impaired driving - Breathalyzer test - The Nova Scotia Court of Appeal took judicial notice of the fact that the borkenstein breathalyzer machine is an "approved instrument" within the meaning of s. 224A(6)(c) of the Criminal Code - Paragraphs 29-32.

Evidence - Topic 2515

Special modes of proof - Judicial notice - Public officials, capacity and appointment of - Appointment by an Attorney General of a police officer as a "qualified technician" to operate a breathalyzer machine to test blood alcohol content - The Nova Scotia Court of Appeal held that an appointment of a police officer for such purpose was not of such wide notoriety that it can be judicially noticed at common law or under s. 687 of the Criminal Code - Paragraphs 4-15.

Evidence - Topic 2515

Special modes of proof - Presumptions - Regularity - Public officials - Capacity and appointment of - Testimony of a police officer that he was appointed by the attorney general as a "qualified technician" to operate a breathalyzer machine to test blood alcohol content - The Nova Scotia Court of Appeal held that such testimony establishes a rebuttable presumption of his due appointment to that office - Paragraphs 20-26.

Statutes - Topic 5384

Regulations - Effective date - Power to enact regulations necessary to make a statute effective upon its commencement - Interpretation Act, s. 7 - The Nova Scotia Court of Appeal held valid regulations which were made prior to the commencement date of the statute granting the regulation making power - Paragraphs 33-38.

Words and Phrases

Proclamation, order, rule, regulation - The Nova Scotia Court of Appeal discussed the meaning of "proclamation, order, rule, regulation" as found in s. 687(1)(c) Of the Criminal Code, S.C. 1953-54, c. 51 - paragraphs 10 & 11.

Cases Noticed:

Regina v. Hodgins, [1971] 4 C.C.C.(2d) 87, folld.

R. v. Markin, [1970] 1 C.C.C. 14, folld.

Regina v. Gibbens, [1972] 5 C.C.C.(2d) 104, folld.

The State v. Circuit Court Judge of Wicklow, [1951] Ir. R. 311, folld.

Belzberg v. The Queen (1962), 131 C.C.C. 281, folld.

Rex v. Smith (1930), 54 C.C.C. 355, folld.

Regina v. Leavitt, [1972] 5 C.C.C.(2d) 141, folld.

Regina v. Russell, 3 N.S.R.(2d) 23, [1971] 4 C.C.C. 2d) 494, folld.

R. v. Jones (Reginald), [1969] 3 All E.R. 1559, folld.

Statutes Noticed:

Criminal Code, S.C. 1953-54, c. 51, sect. 680, sect. 687(1), sect. 687(2), sect. 734.

Criminal Code Regulations, S.O.R. (Canada) 69-583.

Interpretation Act, S.C. 1967-68, c. 7, sect. 2(1)(b), sect. 7.

Counsel:

C.W. MacIntosh, Q.C., for the Appellant;

D.W. MacDonald, for the Respondent.