R. v. Magee, (1979) 20 A.R. 10 (ProvCt)

• Judge: Stevenson, P.C.J.
• Court: Provincial Court of Alberta (Canada)
• Case Date: August 10, 1979
• Citations: (1979), 20 A.R. 10 (ProvCt)

R. v. Magee (1979), 20 A.R. 10 (ProvCt)

MLB headnote and full text

R. v. Magee

Indexed As: R. v. Magee

Alberta Provincial Court

Judicial District of Calgary

Stevenson, P.C.J.

August 10, 1979.

Summary:

This headnote contains no summary.

Criminal Law - Topic 1374

Motor vehicles - Impaired driving - Breathalyzer - Certificate evidence of results of analysis of breathalyzer solution and breath sample - The accused was charged with driving after consuming an excessive amount of alcohol, contrary to section 235 of the Criminal Code - The Crown tendered as evidence: (1) the technician's certificate of analysis and (2) the analyst's certificate of analysis - The analyst's certificate indicated that the solution was analyzed on October 4, 1978 while the notice of intention to introduce certificate evidence was dated April 8, 1978 - The accused argued that the discrepancy in the dates was a substantial and misleading error - The Alberta Provincial Court convicted the accused on the basis of the technician's certificate - The Provincial Court held that an analyst's certificate was not necessary to prove a section 236 offence - The Provincial Court held that the analyst's certificate was not admissible in evidence, because the notice of intention to produce was dated prior to the date of the laying of the charge - See paragraphs 9 to 18.

Criminal Law - Topic 1374

Motor vehicles - Impaired driving - Breathalyzer - Certificate evidence of results of analysis of breathalyzer solution and breath sample - The Alberta Provincial Court stated that the prerequisites for evidence of the analysis of breath samples to be proof of the proportion of alcohol in the blood of the accused were that: (1) the analysis was made within two hours of the alleged offence or as soon as practicable, (2) an approved instrument was used and (3) a qualified technician operated the instrument - See paragraph 22.

Cases Noticed:

R. v. Mabee (1972), 6 C.C.C.(2d) 467, refd to. [para. 3].

R. v. Glass (1973), 12 C.C.C.(2d) 450, refd to. [para. 6].

R. v. Dunphy (1971), 1 Nfld. & P.E.I.R. 570; 17 C.R.N.S. 70, refd to. [para. 24].

R. v. Zanetti (1970), 2 N.S.R.(2d) 566; 1 C.C.C.(2d) 414, refd to. [para. 25].

R. v. Arakcheyev (1971), 2 C.C.C.(2d) 279, refd to. [para. 26].

R. v. Brady (1972), 5 C.C.C.(2d) 361, appld. [para. 27].

R. v. Arseniuk (1972), 7 C.C.C.(2d) 238, refd to. [para. 28].

R. v. Gorgichuk (1971), 1 C.C.C.(2d) 492, refd to. [para. 30].

R. v. Manysiak, [1971] 3 W.W.R. 530, refd to. [para. 31].

Re Criminal Code of Canada, Sections 222, 224, 224A (1971), 3 N.B.R.(2d) 511 (N.B.C.A.), refd to. [para. 33].

Statutes Noticed:

Criminal Code of Canada, R.S.C. 1970, c. C-34, sect. 236 [para. 14]; sect. 237 [para. 22].

Counsel:

B. Newton, for the Crown;

C.G. Docken, for the accused.

This case was heard by STEVENSON, P.C.J., of the Alberta Provincial Court, Judicial District of Calgary.

On August 10, 1979, STEVENSON, P.C.J., delivered the following judgment: