R. v. Osborne, (1984) 46 Nfld. & P.E.I.R. 356 (PEISC)

• Judge: Mitchell, J.
• Case Date: January 11, 1984
• Jurisdiction: Prince Edward Island
• Citations: (1984), 46 Nfld. & P.E.I.R. 356 (PEISC)

R. v. Osborne (1984), 46 Nfld. & P.E.I.R. 356 (PEISC);

    135 A.P.R. 356

MLB headnote and full text

R. v. Osborne

(No. GDC-4491)

Indexed As: R. v. Osborne

Prince Edward Island Supreme Court

Mitchell, J.

January 25, 1984.

Summary:

The accused was acquitted of driving a motor vehicle while having an excessive blood-alcohol content contrary to s. 236 of the Criminal Code of Canada. The Crown relied on the technician's certificate to prove its case. The trial judge admitted the certificate into evidence without objection by the accused, but subsequently ruled it inadmissible when the accused objected to its admission during presentation of the defence. The Crown appealed.

The Prince Edward Island Supreme Court allowed the appeal and ordered a new trial, because the certificate of analysis should not have been excluded from evidence after it was admitted into evidence without objection.

Compare also the case of R. v. Morgan (1984), 51 A.R. 201.

Criminal Law - Topic 1374

Motor vehicles - Impaired driving - Breathalyzer - Certificate evidence - Admission of - The Crown relied on a technician's certificate to prove its s. 236 case against the accused - After hearing evidence that the notice and service requirements of s. 237(5) of the Criminal Code of Canada were met, the trial judge admitted the certificate without objection from defence counsel - Actually, the whole defence was the Crown's alleged failure to comply with s. 237(5) - The trial judge then reversed his decision and rejected the certificate - The Prince Edward Island Supreme Court held that the trial judge erred and ordered a new trial - See paragraphs 7 to 14.

Criminal Law - Topic 1374

Motor vehicles - Impaired driving - Breathalyzer - Certificate evidence - Admission of - The Prince Edward Island Supreme Court held that the admissibility of a technician's certificate of analysis should be determined once and for all at the time the certificate is tendered as evidence - See paragraph 11.

Evidence - Topic 507

Presentation of evidence - Failure to object - Effect of - A certificate of analysis of breath sample was admitted into evidence without objection by the accused - The Prince Edward Island Supreme Court held that the accused had no right to subsequently object to the certificate's admissibility - See paragraphs 7 to 14.

Cases Noticed:

R. v. Tunke (1975), 25 C.C.C.(2d) 518 (Alta. S.C.), dist. [para. 7].

R. v. Braithwaite (1972), 6 C.C.C.(2d) 257 (Alta. S.C.T.D.), dist. [para. 7].

R. v. Bentsen (1975), 24 C.C.C.(2d) 556 (B.C.C.A.), dist. [para. 7].

R. v. Martel (1980), 23 A.R. 361; 8 M.V.R. 167 (N.W.T.S.C.), refd to. [para. 12].

R. v. Oakley (1980), 31 A.R. 579; 6 M.V.R. 158 (Alta. Q.B.), refd to. [para. 12].

Statutes Noticed:

Criminal Code of Canada, R.S.C. 1970, c. C-34, sect. 237(5) [paras. 1, 3 to 6, 8 to 12].

Counsel:

Darrell E. Coombs, for the Queen;

Gordon MacKay, for the respondent.

This appeal was heard before Mitchell, J., of the Prince Edward Island Supreme Court on January 11, 1984. The decision of Mitchell, J., was delivered on January 25, 1984.