Court of Appeal

Cite as: R. v. DIckson, 1973 NSCA 4 1972 I N THE SUPREME COURT OF NOVA SCOT IA APPEAL DIVISION - CROWN SIDE BETWEEN: HER MAJESTY THE QUEEN - and - JOHN HENRY DICKSON Respondent [ 0 ra 1 Op in ion ] McKINNON, C.JoN.S.: This is al!'! appeal by the CrOitIn from a decisio~, of HEs Hooour Po To JQ 0 Hearn" a Judge of the County Court for District Numbei' Ooeo The respondent was charged that he at or near Dartmouth" in the County of Hal ifax" Nova Scotia" on or about the 27th day of September, 1972, did unlawfull~1 have the control of a motor vehicle havang consumed alcohol in such a quantity that the proportion thereof in his blood exceeded 80 miln9r<'.lm~ of ~lcohol ira 100 mil Hlltres of blood l1 contrary to sect Don 236 of the ~!!'!.!......Code< On October 31, 1972, the respol'llde!'llt was; acquitted of the charge fol lowing a tria1sl.e=Il2.'!.2. held before the h~arned COlJl!'!ty Court Judgeo Leave to ,sppeal is granted Q Briefly, the facts are: At approximately 3,,30 p.mo on September 27'1 1972» the respondent was checked for speeding by Csto .John Fo Skinner 1

of the Dartmouth Police Force o While interrogating the respondent, the constable fonmed the belief that he was impaired, and at approx­ imately 3035 porno gave him a demand to take a breathalyzer teste At trial the learned Judge found as a fact that the constable had reasonabie and probable grounds for his belief that the respondent was impaired. The respondent consented to take a test and the con­ stable drove him to the Dartmouth Pol ice Stat ion where at 4013 porno and 4025 porno two tests with the aid of a Borkenstein breathalyzer were performed on samples of the respondent's breath by Csto Sheldon Tipert of the Dartmouth C~ty Police Force, a quai ified technician» under section 237 (6) of the Criminal Codeo It was detenmined that at the time of the first analysis the respondent had in his blood 100 mill igrams of atech;)) in 100 millilitl'eso-f blood and at the time of the second anaiysis, 110mi I t ig I-ams of a) coho 1 in 1 00 mil J iIi t res of blood 0 The 1e a med Judge found that the oral evidence of the qualified technician was suff icient to meet the requ h'emen~ of sect ion 237 (1) ill of the Criminal Codeo In his oral judgment the Jearned trial Judge tClok judicial notice of a tOlerance for error of plus or mi~us 10 miiii ­ grams in the Borkenstein breathalyzer; then took judicial notice that there is an ingestion process or period of absorption after conslUm i ng a 1c oho 1 and that it may reach a peak at a ha 1f.. or th i'ee­ quarters of an hour after consurnption; and finally decided that " since the second reatl ing was higher than the first, the abslJrpt ion 2

process was still going on and this in turn constituted evidence to the contrary within the m~ning of the legislation, having regard to the relatively low readingo Where the requirements of section 237 (1) isl have been fulfilled, then it is provided that "evidence of the result of the chemical analysis so made is,t in the._~.bsence of a!l}' ~:,!idence to the contrary proof of the proportion of alcohol in the bll)od of the accused at the time when the offence was alleged to have been committedllg [Emphasis mincQ} It is the unanimous opinion of the Court that it was not open to the learned Judge of the County Court to take judicial notice of the tolerance for error in the Borke!'1lstein breathalyzer because of evidence th",t may have been adduced in another case or cases: see Phipson, 1970, 11th edo, po 60; The King Vo Savidant, In the ~vfi~~, case, which dealt with the matter of judicial notice, Campbell, CoJo, stated as follows, PPo 452-453: 'tBut the point is very impressively decided by the Alberta Appellate Division in F1etcher Vo Kondratiukp (1933] 3 OoloR~ 5320 I quote several citations from the judgment of McGillivray, JOA06 in which Harvey, CoJoAQ9 Mitchell and lunneY9 JJaAQ' con~ curred (the point not bei~g considered in the dissenting judg~~nt of Clarke, JDA"),, Page 538: , lin my opinion the learned Judge was quite wrong i!1 coming to a conclusion in whole or in part upon the evidence of experts given in other cases in ~njch other WQl~n9 other chiidren and 3

process was still going on and this in turn constituted evidence to the contrary within the meaning of the 1egislation, having regard to the relatively low readingg Where the requ i rements of sect ion 237 (1) hl have been fulfilled" then it is provided that lIev idence of the nasult of the chemical analysis $0 made is,, in the a~~sence,~f any evidence.~~ the contrary proof of the proportion of alcohol in the bil)od of the accused at the time whe~~e"~ffence was alle~~~~~ve ~~~ committedl1~ [Emphas is mineoJ It is the unanimous opinion of the Court that it was not open to the learned Judge of the County Court to take jud Ie ia 1 notice of the tolerance for eil'or in the BorkEHlstein breathalyzer because of evidence that li'.fly have been adduced in another case or In the ~.!'J<;!an! case» which dealt with the matter of judicial notice, Campbell, CoJo", stated as follC\'Is, ppo 452~453: IIBut the point is very impressively decided by the Alberta Appellate Division in :=~at..7!!...er v~ KOUlldrati~ [1933] 3 OoL,)R~ 532b I quote severa) citations f!'om the judgment O'f HcGiH h.!ray» JoAol in ~'Jhich Harvey" CoJ"Au, t1itchell and lunneYJI .J,UL,~ con­ curred (the point not being considered in the dissenting judgment of Clarke, j"A .. ) 0 Page 538: I I n my op i 11 i on the 1e n !"ned Judge 'vias qt! i te \.,1"ol1>g in cern j ng to a conclti1siol1 in \'Jhofe or in part upon the evidence of experts 9 j yen in othe r cases i n ~1h i eh other \>JOI"(ie 11 , othe r ch i I d fer~ .31!0 3

other cross-examiners were involved o ' Page 542 (quoting from ROscoe's Criminal Evidence, 15th ed o, po 21): "f there ~~re any circumstances fr~n ~lich an unusually long or short per!od of gestation might be inferred, or if it were necessary to C'1scertain the pedod with any llicety" it \-Iould be desirable to nave special medical testimony Olit the sUbJecto' Page 543: 'The Court 0 0 • is entitled to take judicial notice of the course of natur"e ordy insofar as it is u notorious fact that nature fo 1i ows a certa in course 0 0 0 A Judge is I,ot at 1 iberty to found his Judgment whether upo~ his own scien­ t if ic knowledge or the ev idence of e;(per~s 9 ivm. befor"e him in other cases o I "The dec is ion of a court of 1<:1\,1 ~'IOUld be founded Sll~c! the durat ion of p,-egnancy on the opinions of experts selected for the occas ion" and each case would b:? dedded on h:s O\.>m meritsc I Page 544: 'Th is fact mus;,: be proved I ike <311)1 other fact, b·y' such evidence as may serve to bring conviction to tfn-.e mir,d of the judge try i ng t:,e case, aM that ev i dence' must be 9 i ver~ in the pa!'ticular case that is befot-e the COUito l !I §i: is also cur opinion thai:: judicial notice c;ould 5~ln be takell of the ingest ion process or per iod of t'lbsorpt ion afte:r consuming alcohol and the tirr.e lomit in Ii'ihich such irif:1E!!;;ticm process may reach a peako Further, and aside fr(s'm the issue involved liere;> such a condus ion depend~ 011 (1 number of variables on !;,h kh thli:lre c.... ~Jas rao ev i dence befo~'e the Cowrt" 4

A Judge cannot take jud ic ia J not ice of techn ica 1 facts founded on h is own knowledge and unl<nown to persons of intel J igellce generally: see [letcher Vo Kondratiuk" suprao We are all in agreement that in the case at bar there was no "ev Idence to the cont ra ry" with in the @lean i ng of sect ion 237 (1) l£l of the Criminal Code: see R. v~ Gaet~, (1972), 8 C.CoCo (2d) 3. Accord ingly, the appea 1 should be allowed \'1ith the conviction and penalty imposed by the Judge of the Magistrate's Court restored. DATED at Halifax, Nova Scotia, this 31st day of jan­ uary, Ao Do, 19730 Members of Appeal Division McKinnon, C.JoNoSo Coff in, JoA 0 Cooper, J.A 0 Counsel Graham Wo Stewart3 Esq. Appellant Will iam H. Kydd, Esq. Respondent 5