R. v. Villeneuve, (1979) 30 N.S.R.(2d) 326 (CA)

• Judge: Cooper, Hart and Pace, JJ.A.
• Court: Supreme Court of Nova Scotia (Canada)
• Case Date: February 06, 1979
• Jurisdiction: Nova Scotia
• Citations: (1979), 30 N.S.R.(2d) 326 (CA)

R. v. Villeneuve (1979), 30 N.S.R.(2d) 326 (CA);

    49 A.P.R. 326

MLB headnote and full text

R. v. Villeneuve

(S.C.A. No. 00326)

Indexed As: R. v. Villeneuve

Nova Scotia Supreme Court

Appeal Division

Cooper, Hart and Pace, JJ.A.

February 6, 1979.

Summary:

This case arose out of a charge of driving with a blood alcohol content in excess of that prescribed by s. 236 of the Criminal Code. At trial the Crown offered certificate evidence pursuant to s. 237 of the Criminal Code. The trial judge refused to admit the certificate evidence because the Crown did not establish a time interval of 15 minutes between the 2 breathalyzer tests referred to in the certificate evidence. The trial judge acquitted the accused. The Crown appealed to the Nova Scotia County Court.

The Nova Scotia County Court dismissed the appeal on the ground that the appeal involved a question of fact and not a question of law. The judgment of the Nova Scotia County Court is set out below at paragraphs 24 to 27. The Crown applied for leave to appeal to the Nova Scotia Court of Appeal.

The Nova Scotia Court of Appeal granted leave to appeal, allowed the appeal, set aside the judgment of the Nova Scotia County Court, set aside the acquittal of the accused and directed that a verdict of guilty be entered. The Court of Appeal held that the trial judge erred in calculating the time interval between the 2 breathalyzer tests and that the trial judge's refusal to admit the certificate evidence constituted a question of law for purposes of an appeal to the Nova Scotia Court of Appeal.

Criminal Law - Topic 4860

Appeals - Grounds of appeal - What constitutes a question of law - Criminal Code, s. 771(1) - The accused was charged with driving with a blood alcohol content in excess of that prescribed by s. 236 of the Criminal Code - At trial the Crown offered certificate evidence pursuant to s. 237 - The trial judge refused to admit the certificate evidence because the Crown did not establish a time interval of 15 minutes between 2 breathalyzer tests - The accused was acquitted - On application for leave to appeal by the Crown the Nova Scotia Court of Appeal held that the trial judge erred in calculating the time interval between the breathalyzer tests and that the trial judge's refusal to admit the certificate evidence constituted a question of law for purposes of an appeal to the Nova Scotia Court of Appeal.

Words and Phrases

Question of law - The Nova Scotia Court of Appeal discussed the meaning of the phrase "question of law" as found in s. 771(1) of the Criminal Code.

Cases Noticed:

R. v. Suter (1978), 22 N.S.R.(2d) 273; 31 A.P.R. 273, refd to. [paras. 4, 20 & 27].

R. v. Marsters, 29 N.S.R.(2d) 642; 45 A.P.R. 642, refd to. [para. 4].

R. v. Torrie, [1967] 3 C.C.C. 303, refd to. [para. 12].

R. v. Pickles (1973), 11 C.C.C.(2d) 210, refd to. [para. 18].

R. v. Teague (1972), 11 C.C.C.(2d) 191, refd to. [para. 18].

R. v. Ferster (1973), 11 C.C.C.(2d) 368, refd to. [para. 18].

R. v. Andrushko (1977), 37 C.C.C.(2d) 273, refd to. [para. 18].

R. v. Moreau (1978), 23 N.R. 541, folld. [para. 20].

R. v. Staiger (1977), 4 A.R. 494, refd to. [para. 22].

Statutes Noticed:

Criminal Code of Canada, R.S.C. 1970, c. C-34, sect. 237(1) [para. 3]; sect. 771(1).

Counsel:

Reinhold M Endres, for the appellant;

Michael J. Lynch, for the respondent.

This appeal was heard by COOPER, HART and PACE, JJ.A., of the Appeal Division of the Nova Scotia Supreme Court at Halifax, Nova Scotia, on January 15, 1979.

The judgment of the Appeal Division was delivered on February 6, 1979, and the following opinions were filed:

HART, J.A. - see paragraphs 1 to 15,

COOPER, J.A. - see paragraphs 16 to 23.

PACE, J.A., concurred with HART, J.A.