R. v. Orlias, (1983) 42 A.R. 138 (NWTSC)

• Judge: de Weerdt, J.
• Court: Supreme Court of Northwest Territories (Canada)
• Case Date: March 07, 1983
• Jurisdiction: Northwest Territories
• Citations: (1983), 42 A.R. 138 (NWTSC)

R. v. Orlias (1983), 42 A.R. 138 (NWTSC)

MLB headnote and full text

R. v. Orlias

(SC 2736)

Indexed As: R. v. Orlias

Northwest Territories Supreme Court

de Weerdt, J.

March 9, 1983.

Summary:

The accused woman was charged with possession of home brew contrary to s. 64 of the Liquor Ordinance, R.O.N.W.T. 1974, c. L-7. A sample of the brew was seized, but was not analyzed for three months, at which time it contained 2.8% alcohol, only 0.3% over the level deemed intoxicating. The trial judge acquitted the accused on the ground that it was not proved that the brew was intoxicating when it was seized. The Crown appealed.

The Northwest Territories Supreme Court dismissed the appeal.

Evidence - Topic 204

Inferences - Inferences and legal proof - The Northwest Territories Supreme Court stated that, if an inference can reasonably be drawn, it must still be determined whether the inference must be drawn on the basis that there was no other reasonable inference - The court stated that, if another reasonable inference can be drawn which is consistent with innocence, then there is a clear basis for finding a reasonable doubt, which must be given to the accused - See paragraph 22.

Evidence - Topic 506

Presentation of evidence - Objection to offer - Time for - The Northwest Territories Supreme Court held that an objection to the admission of evidence on the ground of violation of the Canadian Charter of Rights and Freedoms should have been made at the time of the offer of the evidence - See paragraphs 6, 14.

Evidence - Topic 507

Presentation of evidence - Objection to offer - Failure to object - Effect of - The Northwest Territories Supreme Court held that the failure to object to the admission of evidence constituted waiver of the objection and it was too late to raise the issue after the evidence was closed or on appeal - See paragraphs 6, 14.

Evidence - Topic 2279

Judicial notice - Science - Chemistry - Alcoholic fermentation process - Home brew was not analyzed until three months after its seizure, at which time it was 0.3% above the level of alcohol deemed to be intoxicating - The Northwest Territories Supreme Court took judicial notice of the fermentation process and the likelihood that the brew continued to ferment after seizure, resulting in a lack of proof that the brew was intoxicating at the time of seizure - See paragraphs 24 to 30.

Liquor Control - Topic 3664

Offences and penalties - Possession - Home brew - Home brew was seized, but was not analyzed for three months, at which time it was 0.3% above the alcohol level deemed to be intoxicating - The Northwest Territories Supreme Court affirmed the acquittal of the accused of possession of home brew on the ground that it was not proved that the brew was intoxicating at the time of seizure.

Cases Noticed:

R. v. Kyd (1957), 23 W.W.R.(N.S.) 642; 120 C.C.C. 178, affirmed 23 W.W.R.(N.S.) 650; 120 C.C.C. 185 (Alta. C.A.), appld. [para. 17].

R. ex rel Scotney v. Marshall, [1924] 3 W.W.R. 865 (Sask. K.B.), appld. [para. 20].

R. ex rel Anderson v. Pinno, [1925] 1 W.W.R. 737 (Sask. D.C.), consd. [para. 21].

John v. R., [1971] S.C.R. 781; 2 C.C.C.(2d) 157; 15 C.R.N.S. 257; [1971] 3 W.W.R. 40; 15 D.L.R.(3d) 692, appld. [para. 22].

Commonwealth Shipping Representative v. P.& O. Branch Service, [1923] A.C. 191, appld. [para. 25].

R. v. Savidant (1945), 19 M.P.R. 448, appld. [para. 27].

Danby v. Prince Albert Mineral Water Co. (1922), 38 C.C.C. 47 (Sask. K.B.), dist. [para. 28].

R. v. Bell & Barron Limited (1922), 37 C.C.C. 246, appld. [para. 28].

Statutes Noticed:

Liquor Ordinance, R.O.N.W.T. 1974, c. L-7, sect. 2(1), sect. 2(12) [para. 10]; sect. 2(2) [para. 11]; sect. 64 [para. 1]; sect. 96(1) [para. 7]; sect. 97(1) [para. 30].

Counsel:

J. SHIPLEY, for the appellant;

C. REHN, for the respondent.

This case was heard on March 7, 1983, at Yellowknife, N.W.T., before de WEERDT, J., of the Northwest Territories Supreme Court, who delivered the following judgment on March 9, 1983: