R. v. Nelson, (1979) 3 Sask.R. 45 (CA)

• Judge: Woods, Brownridge and Bayda, JJ.A.
• Court: Court of Appeal (Saskatchewan)
• Case Date: February 26, 1979
• Jurisdiction: Saskatchewan
• Citations: (1979), 3 Sask.R. 45 (CA);1979 CanLII 2332 (SK CA);[1979] 3 WWR 97;3 Sask R 45

R. v. Nelson (1979), 3 Sask.R. 45 (CA)

MLB headnote and full text

R. v. Nelson

Indexed As: R. v. Nelson

Saskatchewan Court of Appeal

Woods, Brownridge and Bayda, JJ.A.

February 26, 1979.

Summary:

This case arose out of a charge of driving with an excessive blood alcohol content contrary to s. 236 of the Criminal Code. The trial court acquitted the accused. The Crown appealed under s. 748(b) of the Criminal Code.

The Saskatchewan District Court allowed the appeal, set aside the acquittal of the accused and convicted the accused. The accused appealed to the Saskatchewan Court of Appeal.

The Saskatchewan Court of Appeal dismissed the appeal and affirmed the conviction of the accused.

Criminal Law - Topic 1374

Motor vehicles - Impaired driving - Breathalyzer - Evidence of results of analysis of breath sample, statutory presumption - Evidence to the contrary, what constitutes - Criminal Code, s. 237(1) - The Saskatchewan Court of Appeal held that evidence that a technician failed to flush the breathalyzer machine before testing the accused, and that two certificates prepared for the same test had different lot numbers, did not constitute "evidence to the contrary" for the purpose of rebutting the statutory presumption under s. 237(1)(c) of the Criminal Code - See paragraphs 17 to 24.

Criminal Law - Topic 7544

Summary conviction proceedings - Appeal on record to "appeal court" - Scope or powers of judge on appeal - The Saskatchewan Court of Appeal stated that a judge sitting on an appeal under s. 755 of the Criminal Code may take his own view of the evidence and may reverse findings of fact by the trial court - See paragraph 15.

Cases Noticed:

R. v. Antonelli (1978), 38 C.C.C.(2d) 206, folld. [para. 15].

Schafer v. The Queen, [1971] 5 W.W.R. 692, refd to. [para. 27].

Reference Re Sections 222, 224 and 224A of the Criminal Code, 1971, 3 N.B.R.(2d) 511; 3 C.C.C.(2d) 243, refd to. [para. 27].

R. v. Duke (1971), 4 C.C.C.(2d) 504, refd to. [para. 28].

R. v. Davis (1974), 14 C.C.C.(2d) 513, refd to. [para. 28].

R. v. Ryckman (1976), 25 C.C.C.(2d) 294, refd to. [para. 28].

R. v. Moreau, 23 N.R. 541, refd to. [para. 29].

R. v. Gosby (1974), 6 N.S.R.(2d) 345; 26 C.R.N.S. 161, dist. [para. 34].

Statutes Noticed:

Criminal Code of Canada, R.S.C. 1970, c. C-34, sect. 237(1) [para. 18]; sect. 755.

Counsel:

Dr. Morris C. Shumiatcher, Q.C., for the appellant;

Kenneth W. MacKay, for the Crown.

This appeal was heard by WOODS, BROWNRIDGE and BAYDA, JJ.A., of the Saskatchewan Court of Appeal, on January 16, 1979.

The judgment of the Court of Appeal was delivered by BAYDA, JJ.A., at Regina, Saskatchewan, on February 26, 1979.