Cite as: R. v. MacLeod, 1973 NSCA 6 1971 S. H. No. 00239 IN THE SUPREME COURT OF NOVA SCOTIA APPEAL DIVISION - CRo\o/N SIDE BETWEEN: HER MAJESTY THE QUEEN Respondent - and KENNETH ROLLAND HacLEOD Appellant [ ORAL OPINION] This is an appeal against conviction from a decision of His Honour Judge N. R. Anderson, a Judge of the County Court, District Number One, made on April 19, 1972Q The appellant was convicted before Judge Eric Do Murray" Provincial Nagistrate, on October 19, 1971, upon the following charge: "that he on or about the 31st day of July, 19719 at or near Halifax in the County of Halifax" Nova Scotia, did unlawfully have control of a motor vehicle having consumed alcohol in such a quantity that the proportion thereof in his bloodexceedecl 80 milligrams of alca ho] in 100 millilitres of blood contrary to section 236 of the Criminal Code of Canada II. The appellant IS appeal" by "Jay (If a trial £~ nOvo to the learned Judge of the County Court, was dismissed, and he appeals to this Courto An appeal from conviction under section 755 of the fode, a trial de novo, is limited by section 771 of the Code to questions of law alone.
Leave to appeal is gra~ted. \-lith regard to the grounds of appeal, it appears to the Court that the learned trial Judge did not err in finding that proper demand had been given to the appellant by officer Saarloos o The contention that there was contradictory evidence by another officer who was present must be dis missed in view of the evidence of the appellant who stated that Cst. Saar d 100$ took a card or paper from his hat or pocket which contained the demand read to him. This corroborates the evidence of Cst. Saarloos that he gave the demand by reading it to the appellant and then asking him if he under stood ito Furthermore, it is apparent from the evidence that the appellant understood the demand and obeyed ito There is also no doubt that the breath-a lyzer test was perfonned pursuant to the demand made by the off leer. The appellant also contends that there was no evidence here that the appellant blew directly into the Borkenstein breathalyzer o We think that the trial Judge could infer this from the follOWing evidence of the techn ic ian o On direct e;l{smination, he testified as follows: l'Q.o Did you perform any tests on Mr. Hacleod? Ao I did siro Qo What was that and what was the purpose of it? Ao The purpose of the Borkenstein breathalyzer test is to determine the proportrlon if any of alcohol in the subject's blood at the timeo Q. ~~at did you do in order to detennine that?
Ao The instrument is the approved instrument, the Borkenstein breathalyzero
Qo And was it operating properly that night?
A. Itwas, sir 0
Q. And were you able to determine the proportion of if any of alcohol in the blood of the defendant? A0 I was" sir 0 Q.o And \'l1at was it and what time did you take the reading? Ao Well there's a standard waiting period of 15 minutes prior to the taking of the first sample of breatho I observed this waiting period, during this time the Borkenstein breathalyzer was prepared for use. A portion of the preparation was the insertion of the test ampule which contained a solution suitable for use with the breathalyzer, 0 0 .110 and on cross-examinat ion: IlQ.o The general operation" Nould it be correct to state that it measures the alcohol vapour contained in the mouth and Jungs? Ao No, s i ro Qo \.Jhat way is that wrong? Ao It works by sample of air from within deep within a person's lungs or it can be called alveOlar airo This is received in the inst~ument by t~e subject blOWing long and hard and exhausting his lurvgs hl order to receive the samp1e of deep lung airo Q. If the subject has recently taken a dl"ink would that affect the reading? Ao Not undsr the operating conditions, no sir, it would not. Qo I am not ask iog you about under the operat ing cond it ions., I am &sk ing you if it would affect the reading? Aa The reason -for the 15 minute \",aiting pew'jod prior to the taking of the first sample of breath is in order to allow any alcohol to dissipate from within a subject IS mouth, ~mich might be present due to ~ recent dr jnko II In any event it was a quest ion of fact for the tria 1 .Judfjc" In his grounds of appeal, the appellant appears to he contending that there "las evidenc:e to the contrary tinder section 237. (1) 1s.lof the Criminal Code. q - 3
The appellant did adduce evidence by a dentur1st that the cups of an old dental plate could hold aicOhol, or alcoholic fumes, particularly if saturated in particles of food for long periods after liquor had been con sumed, thus a breathalyzer test given to a person with such plates as worn by the appellant would not give a true reading of the amount of aicohol in the blood o It is noted that the denturist gave the follOWing evidence on cross-examination: '~o So that if this man was right now, an hour ago, just an hour ago was to take an ounce of Orambuie you couldn't tell us how much alcohol by weight or by volume would now be in his dentures? Ao Technically, 000 Qo Now you couldn't teil us what if any effect it would have on a breatha 1yzer mach i oe? Ao No, I am not an analyst in that field. QQ Or ....mat if any effect it has on the deep lung air? Ao I beg your pardon? Would you repeateD Qo \.Jhat if any effect it "'Jould have on the deep lung air? A 0 No, not rea 11y • II It would appear, therefore, that the denturist's evidence lacks the necessary weight to contradict the evidence of the technician quoted herein o I think it could be inferred by the trial Judge that the technician held tested samples of deep tung air given by the appellant, and any fumes frem the dentLll'es would not have affected the reading he received. After reviewing the record and the submissions of counsel, it is the unanimous opinion of the Court that the appeal should be dismissed and the conviction confirmedo 4
DATED at Halifax, Nova Scotia, this 6th day of February, Members of Appeal Division t-tcKinnon, C.Jot~.So Coff in, J.A .. Cooper, J.A 0 Counsel Charles \10 Macintosh, QoCo Appellant Graham W. Stewart, Esqo Respondent 5
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