R. v. Crosthwait (1979), 20 Nfld. & P.E.I.R. 191 (NFCA);
53 A.P.R. 191
MLB headnote and full text
R. v. Crosthwait
Indexed As: R. v. Crosthwait
Newfoundland Supreme Court
Court of Appeal
Furlong, C.J.N., Morgan and Gushue, JJ.A.
January 29, 1979.
Summary:
This case arose out of a charge against the accused of driving with an excessive blood-alcohol content contrary to section 236 of the Criminal Code of Canada, R.S.C. 1970, c. C-34. The instruction manual with the breathalyzer machine used to analyze the breath of the accused required that the room temperature and the temperature of the solution used in the breathalyzer machine be within one degree of each other for accurate results. Before taking a sample of the accused’s breath in the breathalyzer the technician did not take a reading of the room temperature as required, but the results of a control test on the machine were within prescribed limits. Although it was unlikely that a result within perscribed limits would be obtained if the temperature of the solution and the room temperature were not within one degree of each other, it was possible to fortuitously obtain the correct result. The accused was acquitted before a Magistrate.
The Newfoundland District Court in a judgment reported at paragraphs 27 to 51 below dismissed the Crown’s appeal. The District Court held that the failure of the technician to observe the room temperature constituted “evidence to the contrary” to rebut the evidence of the results of the breathalyzer test within the meaning of section 237(1)(c) of the Criminal Code. The Crown appealed.
The Newfoundland Court of Appeal dismissed the appeal and affirmed the acquittal of the accused. The Court of Appeal held that, while the failure of the technician to observe the room temperature did not constitute “evidence to the contrary”, it rendered evidence of the results of the breathalyzer test inadmissible. See paragraphs 1 to 25.
Criminal Law – Topic 1374
Motor vehicle – Impaired driving – Breathalyzer – Certificate evidence – Evidence to the contrary – What constitutes – Criminal Code of Canada, R.S.C. 1970, c. C-34, s. 237(1)(c) – Before taking a sample of the accused’s breath in the breathalyzer machine the technician did not take a reading of the room temperature as required, but the results of a control test on the machine were within proper limits – The Newfoundland Court of Appeal held that the failure of the technician to observe the room temperature did not constitute evidence to the contrary to rebut the certificate evidence of the results of the breathalyzer test – See paragraphs 10 to 16 – The Court of Appeal held, however, that the failure to observe the room temperature rendered results of the breathalyzer test inadmissible – See paragraphs 17 to 25.
Criminal Law – Topic 1376
Motor vehicle – Impaired driving – Breathalyzer – Proof of alcohol content – Criminal Code of Canada, R.S.C. 1970, c. c-34, s. 237(1)(c) – Before taking a sample of the accused’s breath in the breathalyzer machine the technician did not take a reading of the room temperature as required, but the results of a control test on the machine were within proper limits – The Newfoundland Court of Appeal held that the failure of the technician to observe the room temperature rendered results of the breathalyzer test inadmissible – See paragraphs 1 to 25.
Cases Noticed:
R. v. Moreau (1978), 23 N.R. 541, dist. [para. 12].
R. v. Dygdala (1976), 1 A.R. 395; 1 Alta. L.R.(2d) 41, [1977] 1 W.W.R. 104, not folld. [para. 15].
Statutes Noticed:
Criminal Code of Canada, R.S.C. 1970, c. C-34, sect. 237(1)(c) [para. 11].
Counsel:
David Hurley, for the appellant;
Eric Facey, for the respondent.
This case was heard on October 30, 1978, at St. John’s, Newfoundland, before FURLONG, C.J.N., MORGAN and GUSHUE, JJ.A., of the Newfoundland Supreme Court, Court of Appeal.
On January 29, 1979, the judgment of the Court of Appeal was delivered, the following opinions were filed:
FURLONG, C.J.N. – See paragraph 1;
MORGAN, J.A. – See paragraphs 2 to 26.
GUSHUE, J.A., concurred with MORGAN, J.A.
