R. v. Nyeste, (1983) 32 Sask.R. 250 (ProvCt)

• Judge: Lee, P.C.J.
• Court: Provincial Court of Saskatchewan (Canada)
• Case Date: December 20, 1983
• Jurisdiction: Saskatchewan
• Citations: (1983), 32 Sask.R. 250 (ProvCt)

R. v. Nyeste (1983), 32 Sask.R. 250 (ProvCt)

MLB headnote and full text

R. v. Nyeste

Indexed As: R. v. Nyeste

Saskatchewan Provincial Court

Lee, P.C.J.

December 20, 1983.

Summary:

The accused was charged with driving a motor vehicle while having an excessive blood-alcohol content, contrary to s. 236 of the Criminal Code of Canada. The certificate of analysis stated that the first sample was taken at 21:31, the second at 21:55, an interval of 24 minutes. The accused submitted that the form of the certificate used did not establish 15 clear minutes between the taking of the samples, and that radio frequency interference constituted evidence to the contrary.

The Saskatchewan Provincial Court reluctantly dismissed the charge, because the certificate did not establish 15 clear minutes between the completion of the first test and the start of the second. The court also held that there was no evidence that the breathalyzer machines used were affected by radio frequency interference.

(The case of R. v. Burns, which was reluctantly followed by Lee, P.C.J., is set out for the reader's convenience immediately following this judgment).

Criminal Law - Topic 1374

Motor vehicles - Impaired driving - Breathalyzer - Certificate evidence - A standard form certificate stated that the first breath sample was taken at 21:31 and the second at 21:55, an interval of 24 minutes - The Saskatchewan Provincial Court held that the certificate was inadmissible, because it did not establish that there was 15 clear minutes between the completion of the first test and the start of the second - See paragraphs 1 to 18.

Criminal Law - Topic 1374

Motor vehicles - Impaired driving - Breathalyzer - Certificate evidence - Evidence to the contrary - The Saskatchewan Provincial Court held that radio frequency interference did not constitute evidence to the contrary where it was not proved that the interference affected the accuracy of the breathalyzer machine - See paragraphs 20 to 39.

Courts - Topic 126

Stare decisis - Courts of superior jurisdiction - Decisions binding on provincial courts - The Saskatchewan Provincial Court held that it was bound by a decision of the Court of Queen's Bench unless convinced that the decision was wrong and the liberty of the accused was at issue - See paragraph 18.

Cases Noticed:

R. v. Meston, 34 C.R.N.S. 323, refd to. [para. 11].

R. v. Mueller, 32 C.R.N.S. 188, refd to. [para. 14].

R. v. Burns (1984), 32 Sask.R. 258, folld. [para. 15].

R. v. Proudlock, 5 C.R.(3d) 21 (B.C.C.A.), refd to. [para. 17].

R. v. Marshall, 13 C.R.N.S. 4 (B.C.C.A.), refd to. [para. 17].

R. v. Parent (1982), 17 Sask.R. 361, appld. [para. 37].

Statutes Noticed:

Criminal Code of Canada, R.S.C. 1970, c. C-34, sect. 237(1)(c) [para. 5].

Counsel:

Dale Kohlenberg, for the Crown;

E.F. Anthony Merchant, for the defence.

This case was heard before Lee, P.C.J., of the Saskatchewan Provincial Court, at Estevan, Saskatchewan, who delivered the following judgment on December 20, 1983: