R. v. Shee, (1980) 31 N.B.R.(2d) 568 (PC)

• Judge: Harper, P.C.J.
• Court: Provincial Court of New Brunswick (Canada)
• Case Date: October 16, 1980
• Jurisdiction: New Brunswick
• Citations: (1980), 31 N.B.R.(2d) 568 (PC)

R. v. Shee (1980), 31 N.B.R.(2d) 568 (PC);

    31 R.N.-B.(2e) 568; 75 A.P.R. 568

MLB headnote and full text

Sommaire et texte intégral

R. v. Shee

Indexed As: R. v. Shee

Répertorié: R. v. Shee

New Brunswick Provincial Court

Harper, P.C.J.

October 16, 1980.

Summary:

Résumé:

This headnote contains no summary.

Criminal Law - Topic 1375

Motor vehicles - Impaired driving - Breathalyzer - Demand for breath sample - The accused was charged with refusing to provide breath samples contrary to s. 235 of the Criminal Code - A highway patrol officer appointed under s. 15(1) of the Act gave the accused a breathalyzer demand and the accused refused to comply - Section 15(1) of the Act designated the officer as a peace officer for the purpose of enforcing the Motor Vehicle Act and any other law regulating the operation of vehicles on highways - Subsequent to the officer's appointment he took an oath to serve as a peace officer to prevent all offences against all laws relating to the Province of New Brunswick - The accused argued that he had a reasonable ground for refusing because the officer was not a peace officer under the Criminal Code and therefore lacked authority to make a breathalyzer demand - The New Brunswick Provincial Court acquitted the accused and held that the officer did not have authority to make a breathalyzer demand because his appointment only made him a peace officer for the purpose of enforcing the Motor Vehicle Act and the subsequent oath taken by the officer did not affect his appointment.

Cases Noticed:

R. v. Beaman, [1963] 2 C.C.C. 97, folld. [para. 18].

R. v. Arsenault (1980), 31 N.B.R.(2d) 365; 75 A.P.R. 365, consd. [para. 19].

R. v. Soucy (1975), 11 N.B.R.(2d) 75; 7 A.P.R. 75; 23 C.C.C.(2d) 561, consd. [para. 21].

Statutes Noticed:

Criminal Code of Canada, R.S.C. 1970, c. C-34, sect. 2(c) [para. 25]; sect. 235 [para. 1].

Motor Vehicle Act, R.S.N.B. 1973, c. M-17, sect. 15(1) [para. 10].

Police Act, S.N.B. 1977, c. P-9, sect. 12(1) [para. 11, 22].

Counsel:

Glen Abbott, for the Crown;

Brian Neill and Gary Miller, for the accused.

This case was heard on August 25, 1980, by HARPER, P.C.J., of the New Brunswick Provincial Court.

On October 16, 1980, HARPER, P.C.J., delivered the following judgment: