R. v. Power (F.), (1995) 129 Nfld. & P.E.I.R. 163 (NFPC)

• Judge: Orr, P.C.J.
• Court: Newfoundland and Labrador Provincial Court (Canada)
• Case Date: March 10, 1995
• Jurisdiction: Newfoundland and Labrador
• Citations: (1995), 129 Nfld. & P.E.I.R. 163 (NFPC)

R. v. Power (F.) (1995), 129 Nfld. & P.E.I.R. 163 (NFPC);

    402 A.P.R. 163

MLB headnote and full text

Her Majesty the Queen v. Frank Power

Indexed As: R. v. Power (F.)

Newfoundland Provincial Court

District of St. John's

Orr, P.C.J.

March 31, 1995.

Summary:

Power was charged with care and control of a motor vehicle while having an excessive blood-alcohol level.

The Newfoundland Provincial Court acquitted Power.

Criminal Law - Topic 1374

Motor vehicles - Impaired driving - Breathalyzer - Certificate evidence - As soon as practicable - Meaning of - Power was charged with care and control of a motor vehicle while having an excessive blood-alcohol level - Power alleged, inter alia, that the breathalyzer testing was not performed as soon as was practi­cable, contrary to the Criminal Code, s. 258 - Specifically, his first breath sample was taken at 1:55 a.m. - At 2:33 a.m., the breath technician attempted to obtain the second sample however, the machine mal­func­tioned - The technician obtained a re­placement machine and pre­pared it for operation - The second breath sample was taken at 3:17 a.m. - The Newfoundland Provincial Court rejected Power's claim stating the time lapse was explained and was not "overly long" - See paragraphs 1 to 16.

Criminal Law - Topic 1374

Motor vehicles - Impaired driving - Breathalyzer - Certificate evidence - Power was charged with care and control of a motor vehicle while having an ex­cessive blood-alcohol level - Power con­tested, inter alia, the manner in which his breathalyzer tests were carried out and their relia­bility - His first breath sample was taken at 1:55 a.m. - At 2:33 a.m., the breath technician attempted to obtain the second sample however, the machine malfunc­tioned - The technician obtained a re­placement machine and pre­pared it for operation - The second breath sample was taken at 3:17 a.m. - The Newfoundland Prov­incial Court acquitted Power where the techni­cian failed to as­certain that the first machine was in proper working order prior to using it, and where one machine should have been used for both samples - (Crim­inal Code, s. 258) - See paragraphs 17 to 40.

Criminal Law - Topic 1376

Motor vehicles - Impaired driving - Breathalyzer - Proof of blood-alcohol content - The Newfoundland Provincial Court discussed s. 258 of the Criminal Code, respecting breath samples - Particu­larly, the court reviewed ss. 258(1)(g) and 258(1)(c) of the Code, and stated that "[t]hese sections pro­vide the Crown with alter­nate methods of proof, s. (g) allowing for proof by certifi­cate and (c) to call the technician to pro­vide viva voce evidence of the same mat­ters" - Accord­ingly, when the Crown proceeds by way of viva voce evidence, instead of by certifi­cate, it is entitled to use the eviden­tiary pre­sumption in s. 258(c) - Likewise, when viva voce evi­dence is given, the technician must estab­lish that the breathalyzer machine was in proper work­ing order prior to using it, pursuant to s. 258(1)(g) - See paragraphs 17 to 40.

Cases Noticed:

R. v. McCarthy (1981), 35 Nfld. & P.E.I.R. 40; 99 A.P.R. 40; 64 C.C.C.(2d) 280 (Nfld. C.A.), consd. [para. 9].

R. v. Porter (1981), 35 Nfld. & P.E.I.R. 45; 99 A.P.R. 45; 64 C.C.C.(2d) 283 (Nfld. C.A.), refd to. [para. 9].

R. v. Van Der Veen (1988), 89 A.R. 4; 11 M.V.R.(2d) 251 (C.A.), consd. [para. 12].

R. v. Samorodny (1993), 44 M.V.R.(2d) 19 (Ont. Gen. Div.), refd to. [para. 14].

R. v. Tollefson (1992), 40 M.V.R.(2d) 245 (Alta. Q.B.), refd to. [para. 14].

R. v. Lane (1990), 86 Nfld. & P.E.I.R. 259; 268 A.P.R. 259 (Nfld. Prov. Ct.), refd to. [para. 14].

R. v. Strid (T.D.) (1993), 147 A.R. 176; 3 M.V.R.(3d) 164 (Q.B.), refd to. [para. 14].

R. v. LeSann, [1972] 4 W.W.R. 430 (Sask. Dist. Ct.), refd to. [para. 15].

R. v. Schneider (1978), 15 A.R. 429 (Dist. Ct.), refd to. [para. 15].

R. v. Lightfoot (1981), 36 N.R. 349; 59 C.C.C.(2d) 414 (S.C.C.), consd. [para. 26].

R. v. Genero, [1980] 2 W.W.R. 182; 50 C.C.C.(2d) 312 (B.C.S.C.), refd to. [para. 28].

R. v. Magee (1981), 29 A.R. 86; 11 M.V.R. 64 (C.A.), refd to. [para. 29].

R. v. Ware (1975), 30 C.R.N.S. 308 (Ont. C.A.), refd to. [para. 29].

R. v. Squires (C.) (1994), 114 Nfld. & P.E.I.R. 157; 356 A.P.R. 157 (Nfld. C.A.), consd. [para. 32].

R. v. Kroeger (1992), 97 Sask.R. 263; 12 W.A.C. 263 (C.A.), refd to. [para. 32].

Statutes Noticed:

Criminal Code, R.S.C. 1970, c. C-34, sect. 237(1)(e) [para. 25]; sect. 237(1)(f) [para. 24].

Criminal Code, R.S.C. 1985, c. C-46, sect. 255; sect. 258 [para. 1]; sect. 258(1)(c)(ii) [para. 7]; sect. 258(1)(c)(iii), sect. 258(1)(c)(iv) [para. 37]; sect. 258(1)(g)(i) [para. 31].

Authors and Works Noticed:

McLeod, Takach and Segal, Breathalyser Law in Canada (3rd Ed.), p. 12-106 [para. 33].

Counsel:

G. Collins, for the Crown;

D. Goodland, for the accused.

This action was heard on March 10, 1995, before Orr, P.C.J., of the Newfoundland Provincial Court, District of St. John's, who delivered the following decision on March 31, 1995.