R. v. Novis, (1987) 22 O.A.C. 244 (CA)

• Judge: Howland, C.J.O., Brooke and Blair, JJ.A.
• Court: Court of Appeal (Ontario)
• Case Date: August 18, 1987
• Jurisdiction: Ontario
• Citations: (1987), 22 O.A.C. 244 (CA)

R. v. Novis (1987), 22 O.A.C. 244 (CA)

MLB headnote and full text

R. v. Douglas Maxwell Novis

Indexed As: R. v. Novis

Ontario Court of Appeal

Howland, C.J.O., Brooke and Blair, JJ.A.

August 18, 1987.

Summary:

The accused was convicted of driving with an excessive blood-alcohol content, but on appeal was acquitted by the Summary Conviction Appeal Court on the ground that the breathalyzer technician's designation was not published in the Ontario Gazette until after the accused's test. The Crown appealed.

The Ontario Court of Appeal allowed the appeal and restored the conviction, holding that there was no requirement that the breathalyzer technician's designation be published in the Ontario Gazette.

Criminal Law - Topic 1374

Motor vehicle - Impaired driving - Breathalyzer - Certificate of evidence - Designation of technician - A breathalyzer technician was designated under s. 237(6) of the Criminal Code - In 1985 the Criminal Code was amended and the technician was redesignated under the new s. 238(1), but his redesignation was not published in the Ontario Gazette until after the accused's breathalyzer test - The Ontario Court of Appeal held that the technician's redesignation was not required to be published in the Ontario Gazette - See paragraphs 10 to 18 - The court held that, even if publication was required, his old designation was still effective - See paragraphs 19 to 25 - The court held that the technician's certificate was sufficient proof of designation and independent proof was not required in the absence of a challenge at trial by the accused - See paragraphs 26 to 32.

Cases Noticed:

R. v. Ware (1975), 30 C.R.N.S. 308, appld. [para. 5].

R. v. Lightfoot, [1981] 1 S.C.R. 566; 36 N.R. 349, appld. [para. 5].

R. v. Bowell (1975), 27 C.C.C.(2d) 311 (B.C.S.C.), appld. [para. 18].

R. v. MacLeod (1974), 20 C.C.C.(2d) 503; 7 Nfld. & P.E.I.R. 10, appld. [para. 10].

R. v. Shannon (1981), 15 Sask.R. 380; 64 C.C.C.(2d) 349 (Q.B.), appld. [paras. 16, 30].

R. v. Green (1986), 75 N.S.R.(2d) 18; 186 A.P.R. 18, appld. [para. 23].

R. v. Evanson (1973), 11 C.C.C.(2d) 275, appld. [para. 28].

R. v. Hiltz (1976), 18 N.S.R.(2d) 1; 20 A.P.R. 1 (C.A.), appld. [para. 30].

R. v. Tolley (1974), 21 C.C.C.(2d) 380 (Alta. C.A.), appld. [para. 30].

R. v. Richard (1979), 26 N.B.R.(2d) 16; 55 A.P.R. 16 (C.A.), appld. [para. 30].

Statutes Noticed:

Canada Evidence Act - see Evidence Act.

Criminal Code, R.S.C. 1970, c. C-34, sect. 238(1) [para. 7].

Evidence Act, R.S.C. 1970, c. E-10, sect. 22 [para. 18].

Interpretation Act, R.S.C. 1970, c. I-23, sect. 2(1), sect. 36(a), sect. 36(f), sect. 36(g), sect. 36(h) [para. 20].

Regulations Act, R.S.O. 1970 c. 446, sect. 1(d) [para. 13]; sect. 5(1) [para. 12].

Counsel:

Rick Libman, for the Crown appellant;

T.J. Keilb, for the respondent.

This case was heard on June 25, 1987, at Toronto, Ontario, before Howland, C.J.O., Brooke and Blair, JJ.A., of the Ontario Court of Appeal.

On August 18, 1987, Howland, C.J.O., delivered the following judgment for the Court of Appeal.