R. v. MacGregor, (1978) 9 A.R. 141 (CA)

• Judge: Clement, Moir and Morrow, JJ.A.
• Case Date: April 06, 1978
• Citations: (1978), 9 A.R. 141 (CA)

R. v. MacGregor (1978), 9 A.R. 141 (CA)

MLB headnote and full text

R. v. MacGregor

Indexed As: R. v. MacGregor

Alberta Supreme Court

Appellate Division

Clement, Moir and Morrow, JJ.A.

April 6, 1978.

Summary:

This case arose out of a charge against the accused of driving with an excessive blood-alcohol content contrary to s. 236 of the Criminal Code of Canada, R.S.C. 1970, c. C-34. The accused was convicted in October, 1975, on the basis of a certificate of analysis respecting only one sample of breath. The accused appealed from conviction by way of trail de novo. Before the appeal by way of trial de novo was heard s. 237(1)(c) was amended to require two or more breath samples. At the trial de novo the same certificate of analysis was admitted into evidence and the accused was convicted. The accused appealed on the ground that the certificate of analysis at the trial de novo was inadmissible, because it did not refer to two or more samples pursuant to the new requirement.

The Alberta Court of Appeal dismissed the appeal and affirmed the conviction of the accused. The Court of Appeal held that the new requirement for two or more breath samples was not retroactive to breathalyzer tests taken before the amendment became effective.

Criminal Law - Topic 1374

Motor vehicles - Impaired driving - Breathalyzer - Certificate evidence of results of analysis of breath sample - Criminal Code of Canada, R.S.C. 1970, c. C-34, s. 237(1)(c) - The Alberta Court of Appeal held that the new requirement of s. 237(1)(c) for two or more breath samples was not retroactive to breathalyzer tests taken before the amendment became effective.

Statutes - Topic 6703

Operation and effect - Retrospective enactments - What constitutes retrospective operation - The Alberta Court of Appeal held that the new requirement of s. 237(1)(c) of the Criminal Code of Canada, R.S.C. 1970, c. C-34, for two or more breath samples did not apply retroactively to breathalyzer tests taken before the amendment became effective.

Cases Noticed:

R. v. Noble (1978), 17 N.R. 555; 19 N.B.R.(2d) 417; 30 A.P.R. 417; 37 C.C.C.(2d) 193, dist. [para. 5].

R. v. Johnston (1977), 3 A.R. 181; 34 C.C.C.(2d) 325, affirmed 19 N.R. 476; 9 A.R. 22 (S.C.C.), dist. [para. 10].

Pardo v. Bingham (1869), L.R. 4 Ch. App. 735, appld. [para. 11].

Lauri v. Renad, [1892] 3 Ch. 420, appld. [para. 11].

West v. Gwynne, [1911] 2 Ch. D. 1, appld. [para. 11].

Smith v. Callander, [1901] A.C. 297, appld. [para. 11].

R. v. Chandra Dharma, [1905] 2 K.B. 335, appld. [para. 12].

R. v. LeSarge (1976), 26 C.C.C.(2d) 388, folld. [para. 13].

Statutes Noticed:

Criminal Code of Canada, R.S.C. 1970, c. C-34, sect. 237(1)(c) [para. 4].

Interpretation Act, R.S.C. 1970, c. I-23, sect. 36(c) [para. 12].

Counsel:

P.B. Gunn, for the appellant MacGregor;

S. Doz, for the appellant Reeves;

W.J. Kenny, for the appellant Quick;

Y. Roslak, Q.C., for the respondent.

This case was heard before CLEMENT, MOIR and MORROW, JJ.A., of the Alberta Supreme Court, Appellate Division.

On April 6, 1978, CLEMENT, J.A., delivered the following judgment for the Appellate Division: