R. v. Nichol, (1979) 5 Man.R.(2d) 192 (CoCt)

• Court: Provincial Court of Manitoba (Canada)
• Case Date: December 28, 1979
• Jurisdiction: Manitoba
• Citations: (1979), 5 Man.R.(2d) 192 (CoCt)

R. v. Nichol (1979), 5 Man.R.(2d) 192 (CoCt)

MLB headnote and full text

R. v. Nichol

Indexed As: R. v. Nichol

Manitoba County Court

Lockwood, C.C.J.

December 28, 1979.

Summary:

This headnote contains no summary.

Criminal Law - Topic 1386

Offences against person and reputation - Motor vehicles - Impaired driving - Roadside screening tests - Excuse for refusal - The accused appealed his conviction and sentence of refusing to comply with a demand to provide a breath sample for a roadside alert test contrary to s. 234.1(2) of the Criminal Code - The accused was given six opportunities to blow into the roadside screening device, but failed to produce a result - The passenger in the accused's vehicle, who had the same amount to drink as the accused, then was given the test and passed - The accused then asked for and was given another opportunity to provide a sample but was still unsuccessful - At trial the constable testified that in his opinion the accused was faking, and the accused gave evidence that he had had bronchitis and on the day in question had a cold - The trial judge stated that he was satisfied that there was no reason for not providing a proper sample and the accused's "feeble" result constituted a refusal - The Manitoba County Court, in allowing the appeal, held that as the explanation given by the accused could reasonably have been true, the verdict at trial was unreasonable because the charge had not been proved beyond a reasonable doubt - See paragraphs 9 and 10.

Statutes Noticed:

Criminal Code of Canada, R.S.C. 1970, c. C-34, sect. 234.1(2).

Authors and Works Noticed:

McWilliams, Canadian Criminal Evidence, pp. 653 [para. 7]; 652 [para. 8].

Counsel:

[None disclosed].

This case was heard before LOCKWOOD, C.C.J., of the Manitoba County Court.

The decision of LOCKWOOD, C.C.J., was delivered on December 28, 1979: