R. v. Syed (Q.A.), (2003) 234 Nfld. & P.E.I.R. 298 (NFPC)

• Judge: Orr, P.C.J.
• Court: Newfoundland and Labrador Provincial Court (Canada)
• Case Date: October 08, 2003
• Jurisdiction: Newfoundland and Labrador
• Citations: (2003), 234 Nfld. & P.E.I.R. 298 (NFPC)

R. v. Syed (Q.A.) (2003), 234 Nfld. & P.E.I.R. 298 (NFPC);

    696 A.P.R. 298

MLB headnote and full text

Temp. Cite: [2003] Nfld. & P.E.I.R. TBEd. OC.024

Her Majesty the Queen v. Qamar Ali Syed

Indexed As: R. v. Syed (Q.A.)

Newfoundland and Labrador Provincial Court

Orr, P.C.J.

October 8, 2003.

Summary:

The accused was charged with two counts of impaired driving causing bodily harm, one count of impaired driving and one count of "failing the breathalyser".

The Newfoundland and Labrador Provin­cial Court found the accused not guilty.

Criminal Law - Topic 1362

Motor vehicles - Impaired driving - Evi­dence and proof - Because breathalyser tests were not made within the two hour period, the Crown called an alcohol expert to relate the readings back to the time of driving - The expert opined that the accused would have had readings of between 135 and 163 mg of alcohol in 100 ml of blood - The expert based her calcu­lations on the assumption that the accused physiologically absorbed and eliminated alcohol within the same range as that of 90% of the population - She also assumed that the accused had consumed no alcohol for half an hour before driving - She stated on cross examination that there were a number of patterns of drinking that the accused could have engaged in prior to operating the vehicle that could have resulted in his having a lower then 80 mg or 100 mg reading at the time of driving and still have produced the excessive readings on the breathalyser - The New­foundland and Labrador Provincial Court found the accused not guilty of the impaired driving charges against him - The Crown had failed to establish the factual basis for the expert's opinion.

Cases Noticed:

R. v. Laprise (1996), 113 C.C.C.(3d) 87 (Que. C.A.), refd to. [para. 9].

R. v. St. Pierre (G.R.), [1995] 1 S.C.R. 791; 178 N.R. 241; 79 O.A.C. 321; 96 C.C.C.(3d) 385, refd to. [para. 10].

R. v. Deruelle, [1992] 2 S.C.R. 663; 139 N.R. 56; 114 N.S.R.(2d) 1; 313 A.P.R. 1; 14 C.R.(4th) 215, refd to. [para. 10].

R. v. Ifelson, [1996] O.J. No. 772, consd. [para. 11].

R. v. Flynn (B.P.) (1996), 138 Sask.R. 315 (Q.B.), consd. [para. 12].

Counsel:

N. Westera, for the Crown;

P. Ralph, for the accused.

This matter was heard by Orr, P.C.J., of the Newfoundland and Labrador Provincial Court, who delivered the following decision on October 8, 2003.