APPEALS BY WAY OF STATED CASE

BY

THE HONOURABLE MR. JUSTICE I. GROTSKY

XXIV

APPEALS BY WAY OF STATED CASE

INTRODUCTION

An application to state a case is made to the

summary conviction court and lies in respect of an appeal

against a conviction, order, determination or other pro­

ceeding on the ground that it is erroneous in point of

law, or it is in excess of jurisdiction.

Code, s. 762 (1)

R. v. McInnes (1962), 132 C.C.C. 392 (Sask.

C. A. )

However, the summary conviction appeal pro­

cedures prescribed by Code, SSe 747 through 760 should

be employed where, for example:

a. The finding of the trial judge is unreasonable

or cannot be supported by the evidence.

R. V. Andres (1980), 1 S.R. 96 (Sask. C.A.)

R. V. Medicine hat Greenhouses and German (1981)

3 W.W.R. 587 (Alberta C.A.).

b. The trial judge fails to give proper effect

to findings of fact.

R. v. Ebinger (1969), 2 C.C.C. 313 (Sask. C.A.),

R. V. Moroz (1945), 83 C.C.C. 239 (Man. C.A.),

R. V. Fotti (1978), 45 C.C.C. (2d) 353 (Man.

C.A.) as affirmed at (1980) 1 S.C.R. 589.

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A stated case involves an application to state

a case, the stated case ~nd a notice of appeal.

Code, s. 762(2)

Code s. 762(2) in part, provides as follows:

"762(2) An application to state a case shallbe made and the case shall be stated withinthe period and in the same manner directedby rules of court, if any, and, where thereare no rules of court otherwise providing,the fOllowin~ rules shall apply, namely, ... "(emphasis ad ed)

In Saskatchewan, effective May 1, 1975, the

Rules of Court governing appeals by way of stated case

were deleted. Vide: The Saskatchewan Gazette, Part I,

Vol. 71, No. 19, p. 218, dated May 9, 1975. Thereafter,

there being no rules of court in Saskatchewan, the pro­

cedure set out in code s. 762 was required to be, and

must now be followed. To the extent that cases from

other jurisdictions may have been determined on rules

therein in force, care must be taken to ensure that the

authority relied on is in fact applicable to the case

before our court.

Procedure

Section 762(2) provides that an application

to state a case must be in writing, addressed to the

summary conviction court, and should set out the grounds

upon which the proceeding is questioned.

R. v. Early (No.1) (1966), 10 C.C.C. 280

(N.W.T.S.C. ;

- 2 -

The application must be served on the summary

conviction court within 30 days of the adjudication.

If the adjudication is the conviction, then the 30 day

limit runs from the date of the conviction.

R. v. Wappler, (1968) 4 C.C.C. 254 (Ont. H.C.J.)

Similarly, if the adjudication in question

is the sentence, then time would run from the date

sentence is imposed.

If the appellant is in custody and the hearing

has not commenced within one month from the time when

the application to state a case was made, the gaoler

is required to apply to the appeal court to fix a date

for the hearing.

Code s. 752.3 made applicable by s. 763

The appeal court is then required to give such

directions as it thinks necessary for expediting the

hearing.

Code s. 752.3(2)

The summary conviction court is required to

state and sign the case within one month after the time

when the application was made.

Code s. 762(2)(b)

Where this time limit is not complied with

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by the summary conviction court, the lapse is not fatal

to the appeal.

R. v. Peconi (1970), 1 C.C.C. (2d) 213 (Ont.

H.C.J.)

R. v. Bourassa (1971), 5 C.C.C. (2d) 221

(B.C.C.A.)

Where, pending an application for a stated

case, the summary conviction court dies, quits office

or is unable to act, the appellant may, upon giving notice

to the respondent, apply to the superior court to state

a case.

Code s. 764(1)

Re Regina and Barba (1975), 18 C.C.C. (Zd)

474 (B.C.S.C.) (the termination of a temporary judicial

appointment)

If the superior court states the case, it will

then be dealt with as if it had been stated by the summary

conviction court; but, before the case is stated by the

superior court, the appellant, unless he/she is the

Attorney General or counsel acting on his behalf, must

first enter into a recognizance or give an undertaking.

Code s. 764(Z)

The appellant must serve the respondent with

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notice of the appeal in writing and copy of the stated

case, and file the stated case with the superior court

within 15 days after receiving it.

Code s. 762(2)(c)

The notice of appeal will set out the time

and place for the hearing of the appeal, and is

generally filed with the stated case.

It is important to remember that service and

filing must be effected within the prescribed time,

otherwise the superior court will have no jurisdiction

to hear the appeal.

Cooks ley v. Nakashiba (1901), 5 C.C.C. 111

(B.C.S.C.)

R. ex rel. McLearn v. Meagher (1956), 117

C.C.C. 198 (N.S.S.C.)

Since the Criminal Code does not prescribe

a rule for extension of time, no extension in the

absence of rules of court may be made, inasmuch as appeals

being statutory creatures are strictly construed.

R. v. Brownrigg et al (1959), 125 C.C.C. 208

(N.S.S.C.)

R. v. Gauthier (1977), 36 C.C.C. (2d) 420

(Ont. H.C.J.)

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Similarly, an order for substitutional service

must be applied for within the time specified for serving

the respondent with both the notice of appeal and stated

case.

A-G. B.C. v. Nelson, summarized in 5 W.C.B.

171 (B.C.S.C.)

Although there is no specific provision in

the code permitting substitutional service, it has been

held that the court has the power to allow substitutional

service under its power to enact rules governing procedure.

R. v. Hummell (1972), 9 C.C.C. (2d) 380

(B.C.C.A.)

No transcript is permitted.

R. v. Dominion Bowling & Athletic Club (1909),

15 C.C.C. 105, 19 O.L.R. 107 (ant. H.C.J.)

The present practice requires the stating of

material findings of facts, except where rules of court

permit the superior court to review the transcript of

evidence, e.g. Nova Scotia.

R. v. Fink (1967), 3 C.C.C. 187, 50 C.R. 345

(ant. H.C.J.)

R. v. Goddard (1971), 4 C.C.C. (2d) 396 (Ont.

H.C.J.)

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R. v. McBride and Kanata Investments Ltd. (1973)

15 G.G.G. (2d) 154, 43 D.L.R. (3d) 439 (B.G.G.A.)

Final Order

For an order to be appealable by way of stated

case, it must be in the nature of a "final" order. It

must result in an acquittal or conviction, or in the

quashing of an information or declining to exercise

jurisdiction. In the last mentioned situation, it is

still unclear whether the proper-remedy is an appeal

by way of stated case or mandamus.

R. v. Zentner (1959), 125 G.G.G. 259 (Sask.

G. A. )

R. v. B & B Stone Ltd. (No.2) (1977) 34 G.G.G.

(2d) 464 (Ont. G.A.)

Re R and Smith (1973), 16 G.G.G. (2d) 11,

7 N.B.R. (2d) 597 sub nom Re Burchill (re distinction

between stated case and mandamus)

Interlocutory Order

No appeal by way of stated case lies from an

interlocutory order notwithstanding that it involves

a question of law, e.g., refusing to quash an information

on the ground of insufficiency or duplicity. However,

a stated case may lie on this question after conviction

if it raises a question of law or jurisdiction.

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R. v. Walsh (1969), 1 C.C.C. 86, 3 C.R.N.S.

273 (Ont. H.C.J.)

R. v. Goldrick (1974), 17 C.C.C. (2d) 17, 25

C.R.N.S. 389 (Ont. H.C.J.)

R. v. Appleby (1974),21 C.C.C. (2d) 282, 18

C.P.R. (2d) 194 (N.B.S.C. App. Div.)

Contra, Chisholm v. The Queen (1973), 21 C.R.N.S.

181 (Que. S. C. )

Appeal against sentence

An appeal lies by way of stated case against

a sentence where the ground of appeal involves a question

of law and not merely the fitness of sentence.

R. ex reI. Hutchinson v. Hill (1960), 128

C.C.C. 343 (Sask. C.A.)

R. v. Paterson (1963) 2 C.C.C. 369, 39 C.R.

156 and 195 (B.C.C.A.)

R. v. S.S. Kresge Co. Ltd. (1975), 27 C.C.C.

(2d) 420, 65 D.L.R. (3d) 628 (P.E.I.S.C.)

R. v. Culley (1977), 36 C.C.C. (2d) 433,

(Ont. C.A.)

R. v. Thomas (No.2) (1980),53 C.C.C. (2d)

285 (B.C.C.A.)

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_I

COURTS INVOLVED

Application to

In Saskatchewan, the application to state a

case is made to the Provincial Court of Saskatchewan.

Code SSe 762 and 720.

Appeal is heard by

In Saskatchewan the appeal is heard by the

"superior court" of criminal jurisdiction. The Court

of Queen's Bench. Code s. 761.

By virtue of Code s. 2, which defines "superior

court of criminal jurisdiction" in the Province of

Saskatchewan to mean the Court of Appeal or the Court

of Queen's Bench, appeals by way of stated case can be

heard in either Court. However, as a matter of practice

such appeals are normally brought in the Court of Queen's

Bench.

FORM OF STATED CASE

As stated by me in Her Majesty the Queen v.

Kerry B. McInnis, No. 2591 of A.D. 1983, Judicial Centre

of Saskatoon, delivered on the 29th day of July, 1983

(as yet unreported),

" In Saskatchewan there has developed awell-established practice, by which, afterrecital of the conviction and sentence, thebody of the case is invariably drafted by

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appellant's counsel.

In preparing the stated case, in the first ~

section, as in the present case, the trialjudge sets out the facts found by him at trial.Here, it seems to me, the content is entirelyin his hands, and in my view he should haveunrestricted liberty to do such editing, andif need be rewriting, of counsel's draft ashe wishes.

In the second section, counsel normallysets out the grounds upon which the proceedingsare questioned. These grounds, in my view,are the prerogative of appellant's counsel.There is ample authority for the view thatthese proceedings are, after all, by way ofappeal, and grounds of appeal, regardless oftheir literary elegance or legal merit mustbe the prerogative of him who believes himselfaggrieved by the decision at trial. Vide:R. v. Tarr, 20 C.R.N.S. 113, (1972) 5 W.W.R.T26 (B-:c:J."

R. v. Carefoot (1948), 90 C.C.C. 331 (Ont.

H.C.J.)

R. v. Malone; ~. v. Winnipeg Free Press Co.

Ltd. (1975), 25 C.C.C. (2d) 373, 62 D.L.R. (3d) 216

(Man. C. A. )

R. v. Cross (1978),42 C.C.C. (2d) 277 (P.E.LS.C.

in banco)

R. v. J.P.C. (No.1) (1981), 34 Nfld & P.E.I.R.

500 (S. C •T •D. )

However, there are a number of decisions holding

otherwise. Other courts have held that the stated case

is that of the summary conviction court and not the

appellant and thus should be in a form acceptable to

that court.

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---J

~. v. Wynde1s (1975), 23 C.C.C. (2d) 1, 30

C.R.N.S. 24 (Man. C.A.)

R. v. Phinney (1979), 49 C.C.C. (2d) 81, 33

N.S.R. (2d) 266 (S.C. App. Div.)

The case should set out the actual grounds

on which the proceedings are questioned and should not

contain questions of a hypothetical nature for guidance

in future cases.

R. v. Dedman (1981), 23 C.R. (2d) 203 at p.

260 (Ont. C. A. )

R. v. McDonnell (1935), 1 W.W.R. 175, 63 C.C.C.

150, (1935) 1 D.L.R. 532 (Alta. C.A.)

See A.M. Cooper, "Procedure on Appeals by Stated

Case", 7 C.L.Q. 155 (1964)

The proper manner of stating a case is to style

it:

"TO THE COURT OF QUEEN'S BENCH FOR SASKATCHEWAN

AT THE JUDICIAL CENTRE OF "

- or -

"TO THE COURT OF APPEAL FOR SASKATCHEWAN"

R. v. Moroz (1945), 83 C.C.C. 239, 2 D.L.R.

753 (Man. C.A.) which reviews the proper manner of

stating a case.

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although the manner of styling the cause is a matter

of form, not substance.

Dressler v. Tallman Gravel & Sand Supply Ltd.,

(1962) S.C.R. 564

R. v. Regal Drugs (1958) Ltd. (1970) 1 C.C.C.

151

Stated Case Not To Contain Reasons For Judgment

In Saskatchewan, there being no rules of court

permitting same, reasons for judgment may not form part

of a stated case, since only facts and questions are

permitted by s. 762(1) of the Criminal Code.

R. v. Kidd (1974), 21 C.C.C. (2d) 492, 60.R.

(2d) 769 (H.C.J.)

R. v. Parker Car Wash Systems Ltd. (1977) 35

C.C.C. (2d) 37, 77 D.T.C. 5327 (Ont. H.C.J.)

Refusal To State A Case

A summary conviction court may, where it con­

siders that an application is frivolous, unless it is

a Crown application, refuse to state a case, i.e., refuse

to sign and transmit a case to a superior court.

Code s. 765

An appellant may, however, apply to the superior

court for an order compelling the summary conviction

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court to state a case.

Code s. 766

POWERS OF SUPERIOR COURTS

On appeal to it by way of stated case, a

superior court has jurisdiction to consider, in addition

to the questions asked, other questions of law neces­

sarily arising from the facts stated.

Code s. 768

R. v. Deal (1978), 38 C.C.C. (2d) 425

(N.S.S.C. App. Div.) applying O'Connor v. The Queen,

(1966) 4 C.C.C. 342, 57 D.L.R. (2d) 123, (1966) S.C.R.

619.

The superior court has power, pending the

hearing of the appeal, to order that the name of the

accused/respondent not be published.

~. v. ~ (1978), 41 C.C.C. (2d) 377, 3 C.R.

(3d) 59 (Ont. H.C.J.)

~. v. ~; ~. v. Di Paola (1978), 43 C.C.C.

(2d) 197, 3 C.R. (3d) 62 (Ont. H.C.J.)

However, under code, s. 768(1) the superior

court is only required to answer questions or parts of

questions necessary to determine the issue(s) before it.

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R. ex re1. Barrie v. Stelzer, (1957), 119

C.C.C. 305, 27 C.R. 271 (Man. C.A.)

The superior court has no power to dismiss

an appeal merely because the error at trial did not

result in a substantial wrong or miscarriage of justice,

R. v. Tunke (1975), 25 C.C.C. (2d) 518 (Alta.

S •C. )

and, while it seems to be the law that there is no power

in the superior court to order a new trial, in such

circumstances

R. v. Byrnes (1949), 94 C.C.C. 375, (Alta.

S . C. App. Div. )

R. v. Carefoot (1948), 90 C.C.C. 331 (ant.

H.C.J. - new trial ordered)

a rehearing may be ordered before the same judge.

R. v. Giambo1va, summarized in 8 W.C.B. 237

(ant. C. A. )

Where the stated case involves the admissibility

of evidence, the superior court can remit the matter

to the summary conviction court for the trial to continue

in light of the answers provided.

R. v. Perfection Creameries Ltd. (1939), 72

C.C.C. 119, (1939) 3 D.L.R. 185 (Man. C.A.)

- 14 -

R. v. Teague (1973), 11 C.C.C. (2d) 191, 20

C.R.N.S. 297 (B.C.C.A.)

R. v. McMullen (1979), 47 C.C.C. (2d) 499,

100 D. L. R. (3d) 671 (Ont. C. A. )

Also, while it appears that the superior court

has no power to amend the charge on which the case is

stated, it may cause the case to be returned to the

summary conviction court for amendment.

Code s. 768(1)(b)

R. v. Deslauriers (1974), 20 C.C.C. (2d) 293

(AI ta. S. C. T . D. )

R. v. Canadian Industries Ltd., summarized

in 8 W.C.B. 85 (N.B.C.A.)

- 15 -

SOME USEFUL MISCELLANY

Insufficient Material in Stated Case

Where there is insufficient material in the

case as stated to enable the superior court to give an

opinion on the questions posed to it, same should be

remitted back to the summary conviction court for amend­

ment.

R. v. Armstrong (1942) 80. C.C.C. 262 (Sask.

C.A.)

R. v. McFarland (1919) 31 C.C.C. 211 (Alta.

S.C.)

R. v. Danyleyko (1962) 38 C.R. 175 (Y.T.C.A.)

However, the power to remit the case back for amendment

should not be exercised after the judgment of the superior

court has been delivered.

~' v. Martin (1942), 77 C.C.C. 241 (Ont. H.C.)

Credibility is not appealable

R. v. Kiehl (1937), 1 W.W.R. 68 (Sask. C.A.)

R. v. Highton (1961) 130 C.C.C. 203 (B.C.S.C.)

R. v. Haslam (1945), 85 C.C.C. 221 (B.C.S.C.)

Questions or Fact or Mixed Fact and Law are not Appealable

R. v. Kiehl, supra

- 16 -

R. v. McInnes (1962), 132 C.C.C. 392 (Sask.

C. A. )

R. v. Burton (1939), 71 C.C.C. 382 (Alta.

C. A. )

~. v. Kidd (1974), 74 D.T.C. 6574 (ant.)

Reasonableness of Sentence is not Appealable

R. v. Austin (1939), 72 C.C.C. 349 (Alta.

C. A. )

Sentences Involving Questions of Law are Appealable

R. v. Hill (1961), 128 C.C.C. 243 (Sask.

C. A. )

R. v. McAuslane (1968), 3 C.R.N.S. 36 (ant.

C.A. )

Amending Order of Conviction

This is open to the superior court where

"excessive" imprisonment has been imposed.

~. v. Power (1908), 14 C.C.C. 264 (N.S.C.A.)

Code s. 768(1)(d)

Costs May Be Awarded

The superior court has jurisdiction to award

costs against either party - including the Crown.

R. v. Thompson (1929) 52 C.C.C. 13 (Sask. C.A.)

- 17 -

R. v. Ouelette (1980), 14 C.R. (3d) 74 S.C.C.

(710)

Appeal by way of Stated Case Precludes Summary Conviction

Appeal

Code s. 770(1)

Appeal lies from Court of Queen's Bench to Court of Appeal

on a question of law alone - with leave of C.A.

Code s. 77l(1)(b)

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APPLICATION FOR SThTED CASE

IN THE MATTER OF:

HER MAJESTY THE QUEEN, on the Informationof SHEILA MARIE DRAGANI, a member of theRoyal Canadian Mounted police,

APPELLANT

AND

AFFIDAVIT OF COUNSEL ON BEHALF OF THE APPELLANT

also delivered a draft Stated Case for the consideration of the

Barrister, Solicitor, make oath and say:

aforesaid Judge

, in the Province of Saskatchewan,

day of , A.D. 19_.

I,

That I am counsel on behalf of the Appellant herein, and as

That at the time of serving the aforesaid application,

That attached hereto and marked as Exhibit "B" to this my

1.

cf _

3.

on the _

4.

which was received by me on the day of A.D. 19_

2. That attached hereto and marked as Exhibit "A" to this my

AffidaVit, is the Application to State Case, which I personally

served upon Judge _

_______________v.

a Judge of the Provincial Court for the. Province of Saskatchewan,

to, except where otherwise stated.

such have personal knOWledge of the facts and matters herein deposed

AffidaVit, is the Stated Case, signed by the aforesaid

Judge -,__

GEORGE.W. GOLDSMITH, of Hoosier, in theProvince of Saskatchewan,

erroneous in point of law as hereinafter set out.

AND the Attorney General for the Province of

RESPONDENT

TO HIS HONOUR JUDGE WILLIAM B. TENNANT, a Judge of the

Provincial court in and for the Province of Saskatchewan, sitting

at the Town of Eston, in the Province of Saskatchewan.

PURSUANT to Section 762 of the Criminal Code

the Attorney General for the Province of Saskatchewan, desires

to question the acquittal and determination made by you on the

14th day of December, A.D. 1981, respecting a charge

against the above named Respondent, that he did:·

On or about the 1st day of May, A.D. 1981,

at Eston District, in the Province ofSaskatchewan, having consumed alcohol insuch a quantity that the proportion thereof

in his blood exceeded 80 milligrams ofalcohol in 100 millilitres of blood, drive amotor vehicle, contrary to Section 236 of

the Criminal Code,

on the ground that the said acquittal and determination is

1.0

for the determination of the questions of law raised in the Stated

Case and for such other relief incidental thereto.

Saskatchewan, does he~eby make application to you to state and

sign a case for the opinion of the Court of Queen's Bench for

Saskatchewan, setting forth the facts of the case, and the

grounds upon which the same is questioned by the Attorney General

5. That I make this AffidaVit in support of the within appeal

SWORN BEFORE ME at the City of

1.

for the Province of Saskatchewan, as follows:

Did the Court err in law in refusing to admit

in the Province of Saskatchewan,this day ofA.D. 19

the Certificate of Analysis as a full exhibit because there

was an unexplained interval between the time of the demand

and the time of the test, even though Section 237(5)

of the Criminal Code had been complied with?

DATED at the City of Saskatoon, in the Province

A COMHISSIONER·FOR OATHSin and for the Province of Saskatchewan.My Commission expires Dec. 31, 19Or, Being a solicitor.

of Saskatchewan, this day ofTo be signed by A.A.G!Sask.

, A.D. 1982.

IN THE COURT OF APPEAL FOR SASKATCHEWAN

BE'fWEEN

HER MAJESTY THE QUEEN,on the information of John Ilnisky,a member of the Watson Municipal Police,

APPELLANTINFORMANT

AND

FRANK HAJLASZ, of Watson,in the Province of Saskatchewan,

llliS paN [)8NTDEFENDANT

AFFIDAVIT OF PERSONAL SERVICE

I, __________________, of Watson, in

the Province of Saskatchewan, Peace Officer, MAKE OATH AND SAY:

1. THAT I did on ______day, the day of

A.D. 1976, personally serve Frank Hajlasz, of Watson, Saskat~he-

wan, the Respondent/Defendant, with a true copy of the original

notice of appeal and stated case hereunto annexed marked as

Exhibits "A" and "B", respectively, to this my Affidavit, by

delivering the same to and leaving the same with the said

____________, in the Province of Saskat-

--------,))

Saskatche- ))

of ,)))))))

Frank Hajlasz, at

chewan.

SWORN BEFORE ME at

in the Province of

wan, this day

A.D. 1976.

A COMMISSIONER FOR OATHS in andfor the Province of Saskatchewan,My Commission expires Dec. 31, 19

-or-BEING A SOLICITOR

- 20 -

N--'

1tI TIlE PROVltlCIAL COURT

FOR THE PROVINCE OF SASKATCHE~N

Il~ THE MATTER OF:

HER MAJESTY THE QUEEN on theInformation of MARC MARCEL BARBEY

- and -

NEAL ADLER

S TAT E DCA S E

Case stated by Lloyd P. Deshaye. Judge of

the Provincial Court in and for the Province of Saskatchewan,

under the provisions of Section 762 of the Criminal Code:

1. Neal Adler was charged that he "on or about

the 2nd day of December, A.D. 1979 at Lloydminster, in the

Province of Saskatchewan, being the driver of a vehicle

to wit: a 1979 GMC pickup licence number 477579 (Alberta)

that was involved in an accident with a vehicle of

Melody Zweifel, at Lloydminster, Saskatchewan, with intent

to escape civil or criminal liability did fail to give his

name and address arid offer assistance to Melody Zweifel

and Oddette Ethier an injured party, contrary to Section 233,

subsect ion (2) of th.e Criminal Code."

2. That on March 25, 1980, at Lloydminster,

Saskatchewan, the trial of this matter was held before me

with the Cro~m calling evidence and the defence electing

to call no evidence.

3. That after hearing the evidence I reserved

judgment on the matter to May 6, 1980, and on that date

handed down my judgment and found the accused not guilty

and marked as Appendix "I" to this Stated Case is a

copy of my reasons for judgment.

- 2 -

4. THAT UPON THE EVIDENCE PRESENTED I FOUND

THE FOLLOWING FACTS:

(a) That the accused Neal Adler was

the driver and sole occupant of the GttC pickup truck named

in the Information,at all material times to this charge;

alternatively, in the event that the above conclusion is

mistaken,that the accused, Adler. had the care, charge

and control of the truck so as to make him statutorily

responsible to perform the requirements of Section 233(2)

of the Criminal Code.

(b) That the said GMC truck is a motor

vehicle and was involved in an accident on December 2, 1979,

at Lloydminste~ in the Province of Saskatchewan.

(c) That the other vehicle involved in

the accident was driven by Melody Zweifel and owned by her

mother and that Oddette Ethier was a passenger; the

accident occurring around 1:00 a:m.

(d) That as a result of the accident

Oddette Ethier received a cut to her forehead and was

bleeding; Melody Zweifel bumped her head but this was

not apparent at the scene of the accident.

(e)" That the accident occurred while

Melody Zweifel was northbound and Adler southbound on the

same street and was a result of Adler turning to his left

in front of the Zweifel vehicle.

(f) That Danny Schneider and Michael

Ka3tendieck witnessed the accident frem a nearby vehicle

and after checking their friends in the Zweifel vehicle

each went to the Adler vehicle separately.

(g) That Danny Schneider went to the

Adler vehicle first and saw the accused sitting behind

the driver's wheel.

- 3 -- 4.-

and

(h) That the accused, Adler, was under

,he influence of intoxicants 'at the scene of the accident

4nd immediately after the accident.

(i) That Adler made no effort to notify

the driver of the other vehicle or Oddette Ethier or anyone

else at the scene of the accident of his name and address.

(j) That while Adler was at the scene

of the accident he was asked by Danny Schneider if he

was alright and that he did not answer; that he was asked

by Kastendieck for kleenex and provided a rag which was

requested by Kastendieck for the injured person, Ethier;

that subsequently Adler walked in front of the Zweifel

vehicle, and leaned against it and said "~lhat do you

(b) Without the benefit of the said

presumption, while the evidence concerning Adler's

actions raised suspicions, ,there was insufficient

evidence as to the intent of the accused to escape

civil or criminal liability to support a conviction

and I accordingly found the accused not guilty of the

offence charged.

The Attorney General for the Province

of Saskatchewan desires to question the validity of the

dismissal on the ground that it is erroneous in point

of law.

The question submitted fer the determination

of the Court of Queen's Bench is:

figure?". (1) Did I err in law in holding that the

(k) That the accused, Adler, then presumption under Secti~n 233(3) of

Province of Saskatchewan, this 4th day of July, A.D. 1980.

the Criminal Code did not apply unless

an accused person fails to do both

of the duties (or in the event of

an injured person, all three of the

duties) set out under Section 233(3)

of the Criminal Code of Canada?

NN

walked from the scene and was apprehended at his home

a few blocks away a short time later by the R.C.M.P. ;

at which time he showed signs of impairment by alcohol and

was consuming alcohol.

(1) That Adler's vehicle stopped

after the impact and was not moved after impact and

was left at the scene of the accident by the accused.

5. That because of the other findings made

in this case I specifically made no findings with respect

to whether the accused failed to provide assistance to an

DATED at North Battleford in the

injured party or whether it was necessary for him to do

'so if it is accepted that the injured party was already

being cared for.

6. THAT 1 HELD THAT:

(a) The presumption under Section 233(3)

of the Criminal Code did not apply to the facts since the

accused did not,both fail to stop his vehicle and give his

name and .address.

~\"lv-lCJUDGE L.P. DESHAYEJUDGE OF THE PROVIlIClAL COIN AND FOR THE PROVINCE OFSASKATCHEWAN.

/TO THECCOURT OF QUEEN'S BENCH FOR SASKATCHEWAN

FOR ITS conSIDERATION

IN THE MATTER OF A CASE STATED n~ HIS HonODR JUDGE R.N.CONROY, in connection with a conviction against BERNIEJOHN BALASKI, on a charge that he did On or about the26th day of November, A.D. 1980, at the City ofSaskatoon, in the Province of Saskatchewan, did drivea motor vehicle while the alcohol content of his bloodwas in excesa of .OU per cent, contrary to Section 236of the Criminal Code,

//

-2-

It was shown before ~el

1. THAT at approximately 1145 a.m. on the 26th

day of November, A.D. 1980, Constable Danylyshen was

operating a police car in the City of liaskatoon, in the

Bl::TWEENI Province of Saskatchewan, and observea a half ton cruck

U~N~IE JOHN BALASKI, of the City ofSaskatoon, in the Province of Saskatchewan,

(hereinafter called the "APPELLANT")

ANDI

JUm NAJES'i'l( '!'UE QUEEN, on tho Informationand complaint of GARY DOLL,

(hereinafter called the "RESPONUl::NT")

STA'tED C~~

CASR STATED BY HIS HONOUR JUDGE R.N. CONROY, a Judge of tho

eight to ten car lengthS away proceed to make a lett

turn from 22nd Street on to Whitney Avenue, atter tailing

to stop for a red light at that intersection. ~he police

officer puraued the vehicle lind observed it turn west on

23rd Street, and then at a point when th" "eh1cle was

approximately two blocks ahead of the police car, itturneturned onto Vancouver Avenuo. The police officer lost

the vehicle, but a few moments later observeadthe l1qhtb

~;,"

Province of Saskatchewan.

that BERNIE JOHN BALASKI did on or about the 2~th day of

Provincial Court, sitting at the City of Saskatoon, in the

was sworn by GARY DOLL, before

a Just1cu of the Peace in and for Saskatchewan, alleging

being turned off on a half ton truck parkea on',a driveway

at 330 Vancouver Avenue North, approximately fifteen

houllsesfrom the corner. The pOlice officer shone a light

in the direction of the vehicle, and observed a person

leave th.. vehicle and enter the residence. As the person

WAS running from the vehicle to the residence, the officer

shouted at him twice. The officer wAS then purmitt6d to

enter the residence, with the assistance of a ffiale

On the 28th day of November, A.D. 1~80, an Information1.

November, A.D. 1980, at the City of Saskatoon, in the province

of Saskatchewan, did drive a motor vehicle while th~

NW

alcohol content of h1a blood was in excess of .Od per cent

contrary to Section 236 of the Criminal Code.

occupant. The officer located the AccuseU in a bedroom

in the basement, where he found cloth1nq similar to that

2. On the 4th day of Hay, A.D. 1981, the said worn by the person leAving the truck. 'i'he officer did not

charge was hd~~'d before me in the presence of counsel for

the Crown, and the Accused, an~counsel on his buhalf,

At the trial, evidence wae adduced by the Crown, but no

evidence was called by the defence, and after hear1n~ the

submissions of counsel for the Crown and the defence, I founa

ascertain wh.. "uer or not there were other people 10 th"

house. At the time the Accused was apprehended, he was

wearing only his undershorts. On route to thQ r~lice

station, the Accused WAS asked why he ran. Atter a

voir dire, I ruled the Accused's statement to the effect

the Accused gUilty of the said offence and convicted him that he was afraid of losing his license, admissible.

thereof, but at the request of counsel for the said The officer stated that the conversation related to

BERNIE JOHN BALASKI, I saate the following case tor the

consideration of this 1I0nourable Court.

the Accused's fleeing from the truck, which wau parked

in the driveway, rather than the pursuit in the vehicles.

-3- -

2. The Accused WAS tllken to the £'olice .tAtion

where .Ample. of hi. brellth were obtained, with readings of

150 And 140, llt 2.49 A.m. And ).09 A.m. respectively.

A Certificate of AnAly.io was admitted in ovidence.

3. There was no eVidence of the description of

the vehicle, which waa initially observed b~ethe police

officer or the vehiCle that was found on the aforesaid

driveway. ~he police officer did not SAY that the vehicles

observed were one and the Sllme vehicle.

-4-

Having made that finding. I think the rest of the eVidence

does necessarily support a conviction. He WAS over.

Tests were properly I.ade, and I find nothing impaaper about

the taking of the tests, the time periods were observed.

I will be glad to hear any comments you wish to mAke

with respect to the matter of penalty.·

The Accused, DERNI~ JOHN DALASKI, desires to question

the validity of the said conviction on the grounds that 1t is

4. 'rhe only Argument _aised by the defence was

whether or not the court could be SAtisfied, as required

erroneous in point ot lAW, the question submitted tor the

judgment of thls Honourable Court beingl

by law, thAt the Accused was the driven of the motor vellicle.

5. In dealing with that issue, I gave the

IAI Did I err in law in ho14in9 that if the

investigAting officer had reasonable and probab4e grounds

following ressons.

·well, of course, the baais upon Which the case

must rise or fall I think is whether or not the officer

to make a demand under Section 235 of the Criminal Code,

then the court should be satisfied that the Accused WAS

the driver of a motor vehicle And A conv.l.ction shou.u

DATED at tile City of Saskatoon, in the Province

(bl Did I err in lAW in my application of the

doctrine of roasonable dOUbt, in applying the reasons

given above.

be entered, if All of the other elements or the offence

under Section 236 are proven, beyond a reasonable doubt?

• A.D. 19.Jl.dAY ofof Saskatchewan, thisWitnesses, and I am satisfied from the consideration or the

the Court to, I don't tllin~, tlr. Ouon, although obviously

for the Court to consider the an.wer to that question it has

to look at the ev1dence with respect to the whole inciaent

hAd reAsonable and probAble grounds to !!,ake the demand.

and that's not precisely the SAme point yhat you're addressinv

as outlinea by the Crown in their case through their

N.j:::o

entirety of the evideoce before the Court that the demand

that the officer made was based upon reasonable and

probable grounds and -I say that having regard to the -R.-H. CONROY,---- - ------.---.­Provincial Court JUd~e

without going through the ovidenee - the nAture of the

pursuit, the very short period of time U.at the suspect

vehicl" WAS out of sight of the police, a couple of secon,'s,

was Constable Danylyshen's evidence, the fact that tho

police car pUlled up within sight of this vehicle; a man

was Been leaving; the accused waB found 1n the house;

commento that he mads, I am satisfied that certainly it was

reasonable to come to ths con. Ius ion that he was the person

whO was seen runn1ng from the truck, and on the basis of

the eVidence, I am sAt1sfied thAt Constable Danylyshen had

reasonable and probable grou~ds on which to make tho demAnd.

TO Tilt: COUST OF ... i:~·"B III1I1CII ~Oll IIAIlItATCIIJ!HAtI, rOll 1'1'8 COHSIDIIRATION

1It:" .. t:t:N. -2-

wl,loh to r ....op..bly .y.p.o~ tb.t tb•••14 '1IIAN D. alllHEll, h ..d

..l~Obol ln hl. body.

111:11 llAo1F.S'r1 TUX QUIIXN, on ~b. lnrol... ~to.. otL.Qn.~d ;age. alob.~d walw&R. a ~.ub.c ~t th.Roy"l. CanadlAn ••our.tocS 'olic.,

Al'l't:LLMIT

AlOl'I

2. corpol .. l L.on.rd ~ •••• Rlch.rd W.l...n, b ..d gloynd. ypon

.n .pproprl.t. d •••nd, und.r ••ctlon 216.1 ot ~h. Crl~l... l Cad.,

a~IAU D. II£INER, at £ .. ton, ln ~b. Pro~lno. atS••katchew..n,

l\I.:SPOWDil:o.,'

1. ~he ... ld Corpor.l L.on.rd ~..... alob.rd •• l ••n, ••d.

UAIIJLl<6lil .nd Chat .uch d •••nd .a. Ynd.ra~ood by ~b. Acou••d, IIRIAN D. kEINEa.

CASE STATED IIY WILLIAM II. Tt:~WA~Y, .. Judgo at the6. Th••ald lilliAN D. 1l11ll:.ER r.t....d ~o .upply .......pl. of

Provlncl.l Coyr~, ln and fOI ~b. Plovlnco at a...k.t~h.wa~, 5lt~lnv

• t t:atoll ..nd ~l,,~el.l.y, in tb. provlnc. o( 1I... katob••An, undor the

hl. bl•• tb ln~o tb. ro.d-.ld••01••n1n9 d.vl0. prlor to balng

pI.aant.d to .u~h • ro..d-.ld••ol••nlng d.vl"••

~rovl&lona ot sep~lon 762 ot ~b. Cllaln.. l Code ot Canada..vld."o.. t.nd.r.d b.tor••• tb.. t .11 ot the .l••enc. ot the ott.n".

1. UN th. 2nd d ..y ot tI..y. A.D. 1"', ~h • ..b.. ,. n.... d

5. I Ha. aa~l.tl.d, b.yond ......on..bl. dOYbt. On tb.

U~IAU D. lit:lNIIR, w... oh .. rged ~b.. t b .. dld, .. t Eaton. 1.. the

Pc~vtnc. ot S••k&lch.wAn, vltbo~t ~•••on&bl. _XQU•• , l.11.oc

(~tUM. to cODVly ~ltb th. d.m.fid ...do to blm by .. P••ce ~lttc.r

w.re proven, ~."ept ~b.. ~ tb.~e W....~o ••1denoe ~b.t tb. ae.10e to

be ... od tor tbe .~~po••• r.t.rr.d to ln 6.ot10n 216.1 w.a ..n

.~~Io••d ro..d-.ld••oreenl~g d.vio., ... roqulred ln ~h. e~ld 6eo~ton

un~.r .ub••otton (11 ol S.otlon 2J4.l ol tb. Cri.ln.l Code,2J&.1 ol ~b. Cri.ina~ Cod.,

cc"tr ... y to a.otlon 2 ot S.o~lon 214.1 ot tb. Cll.1nal Coo••NU1

~ . ON ~be lOtb day ot a.p~amber, 1..0, 1~7', th...~ld

Ao~o~dlnUly, tb.r. belng po oyob evldenco ol .. n ..pprovad

ro ..d-.ld••o~o.nlng do.loo, I o~qultted ~he Aoo....d.

charg. va. h••Ed befoe••• in the p~•••nc. ot cown•• l 00 beh.lt

ol the Crown .nd ~ounael ot bab..lt ot ~he Delenoe, 1~ tbe pr•••noe

ot ta•• Aucu ••d, And having h••rd tb~ ~~l~~;.c••4du••a by the Ccown

ArId ~l,. GtaCc••nta ot aouJa••1 toe tho Crown .nd aoull •• l toc the

Ac"ww~d 1.....1 1\0 .vl:d.no. b.ln9 0.11e4 tur tbe Ao~ueed, I adjourn.d

Tbe Attor ... y General lor SAnkatchowAn by bl. Ag.n~ And

oou~.ol aot1ng on bl. bobalt ' •• lre. to que.tion ~he .Alidtty ol

t~e ••14 no~.. lttal end deterhlnatlo.. on tbe yro..nd ~b.t tt la

.rlo...ou. ln »olnt ot l ..w, ~be q ..eM~lon .ubmi~c.d tor the jlldg­

.... t ot thla "onourable Court bolng.

thG "att.. r tor doc;la1on.

the AcC....~. DRIA" D. R~IN£R. not guilty of the e.ld offello. ~nd

tor 5a3%a~chaw.n, ibrou?h hi. Agent an4 coun.ul o. h1. b.ball, 1

dl.·,I •• eJ thQ ••me. but at tho I.qu.,t ot tha Attorney ~~ner~l

(1) ~l~ ~he Court elr In law ln buldlny that the ~ru.ouu~lon

au'-t .atab11ab th.~ ~.~ d~!,~a. ~~ .. ~~.. \l~od, 1• .an Approved

ro~d-.lde .or.enlnu d.vlo., wtthln Sootluu 2J4.1 ot tbe

Crl~ln.. l Cod., wb.re ~be Aocu.ed t~tue~~ to ... pply •

• a~pl. toe tho purpo••• r.te,e.4 to 1n ~b••tor •••1d

a.otion, prior to b.in~ pc•••n~.d to .~c•• A dovie.?'-- ~ _. '.-"---'"

TijAT un tho 11th ~ay at Deooober, A.~. l~", 1 ioyndJ.

OA'I'IiD .t tb. TO"" ot a,rrob.rt. ln thM 'rovlnc. ofaCat. the rollowlnd ~a,e tor tbe oon.ld.r.. tlon ot thl, Konoucabl.

CO';ftl 6a.kAt~b.wen, tbl. ~G) ~ d .. y ot Decomb.r, A.U. 1~7',

~~'~r vehlcla o~ ~ public h1VhWAy, At E,ton, 1~ the Pro~l~ce oe

S.5kAteb.WA~, o~ the 1nd dAy ot HAy, A.D. 1879.

1.

It was ahown b.toce me ~h.tl

"ho AC~lI"ea. IIltlAlI D. KInNEll, .... ~h .. dr lv.r ot a

~~:.1~A ~udg. ot tbe 'ruvlnct .. l Coyrtt~r j.,~.. tob.w..n, .tttln9 a~

eeton and ~ind.r,l.y. In theProvlno. ot a •• katcheW4Qo

L' ':£0 'Hlo> COOiU O~ ;.l>1?<:,;,.L Fro. s;.SKATCHE',i;':1 FO:!. rrs CO:IS1lJ~.\h'''~'' - 2 -

IN THE Hta'TER OF HER MJ\JESTlt' TilE QUEEN OliTHE INFOllMATIOO Ob' PAVIIJ FIIANKLIN HOEFT,PEACE m'FICEIt, VS NICK VElUSCH1IGIN

24th day of July, A.D. 1971 was the driver of a motor vehicle on

Provillcl.al Ilighway No. 5 in the Humboldt District in I:he Province

of SasJ~tchewan and was involvej in on ~uta-.~bile a~cident.

2. I ~ound that Constable David Franklin Hoeft, a peace

officer, knowing that the accused had been driving as aforesaid

at 2.30 p.m. on the 24th day of July, A.D. 1971, made a dema~d

within 2 hours of that time for a sample of his breath pursuant

to Section 235(1) of tha Criminal COde of Canada (Old Section 223(1) I.

STATED CASE

CASE STATED by ERNEST CAllI. BlnCHUK, a Judge of

the Magistrate's Court in and for the Province of, Saskatchewan,

sitting at the Town of Humboldt, in the Province of saskatchewan,

under the provisions of Section 762 of the Criminal Code of

Canada (Old Section 734). 3. By adlll1ssion of counsel on behalf of the accused it was

statements of the counsel for the Crown and counsel for the

his behalf. and after hearing evidence adduced Ly the Crown and

state the following case for the consideration of this Honourable

charge was heard before me in the presence of counsel on behalf

of the Crown and in the presence of the accused and counsel on

The Crown attempted to tender in evidence before me4.

admitted that the accused had received reasonable notice of the

Crown's intention to produce at trial the analyst and technician

certificates hereinafter referred to, copies of which had been

given to the accused.

a certificate of analysis of Catherine Ann Burr. a person

tesignated by the Attorney General of Saskatchewan as an analyst

pursuant to Section 237(6) of the Criminal Code of Canada (Old

Section 224A(6) (a) ) and which referred to a potassium dichromate

reagent, and also a technician certificate of analysis of

Corporal Charles (Ulfred Graham. a person designated as a

qualified technician by the Attorney General of ~askatchewan

pursuant to Section 237(6) of the Criminal Code of Canada (Old

Section 224A(6) (d) ) and which showed inter alia, that the sample

of breath of the accused was taken within 2 hours of the time the

accused drove as aforesaid and also that the result of the chemical

analysis of said sample of ~eath was 170 milligrams of alcohol per

100 millilitres of blood.

On the 2nd day of September, A.D. 1971, an information

On the 2nd day of September. A.D. 1971, the said2.

was sworn under oath before me by David .'ranklin Hoeft, Peace

Officer, that Nick verischagin of Saskatoon, ~askatchewan, on

1.

accused and no evidence having been called for the accused, I

found the said accused. Nick Verischagin, not guilty of the said

offence and dismissed the same, but at the request of the Attorney

General of Saskatchewan by his agent and counsel on his behalf I

the 24th day of July, A.D. 1971 at Humboldt District, Saskatchewan.

having consumed alcohol in such a quantity that the proportion

thereof in his blood exceeded eighty milligrams of alcohol in

fne hundred millilitres of blood did drive a motor vehicle contrary

to Section 236 of the Criminal Code (Old Section 224).N0'\

Court. 5. I found on the evidence of Constable David Franklin Hoeft

was admitted that the accused at approximately 2.30 p.m. on the

1.

It was shown before me that.

By admission of counsel on behalf of the accused it

as to his observations of the scene and of the accused and what was

said to·him that the said Constable in making a demand for a sample

of the accused's breath as aforesaid did not have reasonable and

- 3 -

pcobable gcoundli to believe that the accused within the ~receding

two hours had committed an offence undec Section 234 of the

Cciminal Code cf Canadu (Old Se~ti~, 222), and I rufusoG to

accept in evidence and to mark as exhibits the aforesaid certificates

of Catherine Ann Burr and Charles Wilfred Graham.

6. Accocdingly, thece being no evidence befoce me as to the

N"-J

pcopoction of alcohol in the blood of the accused, I ~cquitted

the accused.

The Attorney General of Saskatchewan by his agent

and counsel on hra behalf desices to question the validity of

the said acquittal and detecmination on the ground that it ia

ecroneous in point of law, the question submitted for the jUdgment

of this Honourable Court being.

(1) Did the eouct err in refuaing to accept in

evidence and to mark as eXhibita a certificate of

analysis of Catherine Ann Burr, a person designated

by the Attorney General of Saskatchewan aa an analyst,

pursuant to Section 237(6) of the Criminal Code of

Canada (Old Section 224A(6) (a) ) and a technician

certificate of analysis of Corporal Chacles Wilfred

Graham, a person designated as a qualified technician

by the Attorney General of Saskatchewan pursuant to

Section 237(6) of the Criminal Code of Canada (Old

Section 224A(6) (d) ) on the ground that the peace

officer who made the demand of the accused for a

sample of his br~ath pursuant to Section 235(1) of

the· Cciminal Code of Canada (Old Section 223(1) ) did

not have reasonable and probable grounds to believe that

the accused within the preceding two houra had committed

an offence under Section 234 of the Criminal Code of

Canada (Old Section 222)1

DAT£U at the City of SaskatDon, in the Province of

(

~ .

('

- 2 -

IN THE COURT OF APPEALand the sentencing was handed down on the 6th day of October,

A.D. 1900.

AND:

BETWEEN:

TERRY H. CARTER,

RESPONDENT,

The

breath sample was obtained.

as Charged'~;pursuant to Section 236 (1) (b)

The conviction is questioned in the request for the

The certificate by th~ person who prepared the standard

Neither the Crown nor the Defendant offered any evidence

to explain the delay in time between arrival at the Radisson

(F)

(D) THE FACTS ARE that at approximately 12:28 a.m. on May

11, A.D. 1900, Corporal M. R. Coupland was on duty patrolling

highway number 6 approximately one mile east of Fielding,

Saskatchewan, and observed a motor vehicle, later learned

to have been operated by the defendant, crossing over the

centre line of the highway. Corporal Coupland followed the

vehicle approximately one to one and a half miles and obser~ed

the vehicle being driven in an irregular manner. Corporal

Coupland then pulled the vehicle over, and upon checking

the defendant's registration and operator's license, noticed

a mild odor of alcohol on the defendant's breath. A demand

was made pursuant to Section 234.1 of the Criminal Code at

12:32 a.m. or 12:34 a.m., which demand was complied with.

The result of. this test on the Alert machine was a "fail".

Corporal Coupland then made a demand upon the defendant

pursuant to Section 235 (1) of the Criminal Code.

The Defendant was then taken to the·Radisson detachment

and arrived there at approximately 12:49 or 12:50 a.• m•.

Two samples of breath were provided by the defendant,

the first being atl:ll a.m. which resulted in a reading of

100, the second being a 1:32 a.m. resulting in a reading of

170.

solution and conducted the test was admitted in evidence.

defence called no evidence.

detachment and the time the first

(E) I fqund the accused guilty

and sentenced him to imprisonment

of the Criminal Code of Canada.

stated case as follows:

STATED CASE

THE TRIAL WAS HE~D ON THE 4TH DAY OF JULY, A.D. 1900,

1'HE INFORMATION IS:

HER MAJESTY THE QUEEN,

CASE STATED BY HIS HONOR JUDGE R. KUCEY, A JUDGE OF THE

PROVINCIAL COURT FOR SASKATCHEWAN, PURSUANT TO THE PROVISIONS

OF SECTION 762 OF THE CRIMINAL CODE OF CANADA.

APPELLANT.

FOR THE PROVINCE OF SASKATCHEWAN

IB) THE PROSECUTOR IS CORPORAL M. R. COUPLAND on behalf

IC)

(A)

the decision was rendered on the 5th day of September, A.D. 1900,

Section 236 of Criminal Code.

is such a quantity that the proportion thereof in blood

of Her Majesty the Queen, and the accused is TERRY H. CARTER.

in the Province of Saskatchewan, having consumed alcohol

"That Terry H. Carter of Dalmeny, Saskatchewan on or

about the 11th day of May, A.D. 1900, at Fielding District,

exceeded eighty (00) milligrams of alcohol in one hundred (100)

milliliters of blood did drive a motor vehicle contrary to

:-..)C:l

••• 2 ... ]

N~

- 3 -

Did I err in law in holding ·that that where there

was no evidence tendered by either the Crown or the Defence as

to the delay in time between the time th~ offense was alleged

to haVe been committed and the time the breathalyzer test was

taken, that judicial notice could be taken of matters such as

the time it would take to set up and warm up the breathalyzer

machine in determining whether or not the test was taken as

soon as practicable after the time the offense was alleged

to have been committed?

(G) AS TO.THE QUESTIONS POSED, although no evidence was

tendered to explain the delay, I held that I could take

judicial notice to explain the delay that there were procedures

to be followed in the administration of the breathalyzer tests

such as the time that would be required to set up and warm up

the breathalyzer machine if it was not already in operation~

In so holding, I relied upon R vs. Miller (1971), 4 CCC (2d)

70 N.S·.Co.Ct.) and R va. Lang (1975), '.'4:: WWR 534 (Saak. Q.B.).

I followed the Saskatchewan Queen's Bench decision of His Lordship

Hr. Justice Siroia with respect to the question of judicial notice.

"Defence counsel cited Jezowski vs R, an unreported decision of His

Honour Judge Wimmer, Judicial Centre of Battleford, dated June 19,

1980 (Sask. D.C.), R va Lightfoot (1980), 4 H.V.R. 238 (Ont. C. A.

consideration was also given to R vs Wolff (1977), 31 C.C.C. 337 IOnt

Co. Ct.), R va Scharkowski (1977), Sask. Decisions ISask. D.C.),

R vs Mitchell (1979), British Columbia Decisions (B.C. S. C.),

R vs LeSann (1972) 4' W.W.R. 430 ISask. D. C.), Gallant vs R (1980),

4 M. V. R. 203 (P. E. I. S. C.)

DATED at the City of Saskatoon, in the Province of Saskatchewa

this day of October, A.D. 1980.

R. KUCEY, P.C.J.

wo

- 1 -

IN THE COURT OF APPEAL

FOR THE PROVINCE OF SASKATCHEWAN

IN THE MATTER OF AN APPEAL BY TERRY H. CARTER, OF DALMENY,IN THE PROVINCE.OF SASKATCHEWAN, CONVICTED BEFORE HISHONOUR JUDGE KUCEY OF THE PROVINCIAL COURT OF SASKATCHEWAN,AT THE CITY OF SASKATOON, IN THE PROVINCE OF SASKATCHEWAN,ON THE 5TH DAY OF SEPTEMBER, A.D. 1980, AND SENTENCED ONTHE 6'fH DAY OF OCTOBER, A.D. 1980, ON A CIIARGE THA'f UE ONOR ABOUT THE 11TH DAY OF MAY, A.D. 1980 AT FIELDING DISTRICTIN THE PROVINCE OF SASKATCHEWAN, DID HAVING CONSUMED ALCOHOLIN SUCH A QUANTITY THAT THE PROPORTION THEREOF IN HIS BLOODEXCEEDED EIGHTY (80) MILLIGRAMS m' ALCOHOL IN ONE HUNDIU:D(100) MILLILITERS OF BLOOD DID DRIVE A MOTOR VEHICLE CONTRARY

TO SECTION 236 OF THE CRIMINAL CODE.

BETWEEN:

HER MAJESTY THE QUEEN,

RESPONDENT,

AND:

TERRY H. CARTER,

APPELLANT.

NOTICE OF APPLICATION FOR LEAVE TO APPEAL

AND

NOTICE OF APPEAL

I HEREBY GIVE YOU NOTICE that I desire to apply to the

Court of Appeal for leave to appeal against my conviction by way

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a case stated by His Honour Judge R. Kucey;

AND I HEREBY GIVE YOU NOTICE THAT I desire to appeal

to the Court of Appeal against my conviction by way of a case

stated by His Honour Judge R. KuceYI

AND I HEREBY GIVE YOU NOTICE THAT an Application for

Leave to Appeal will be made on behalf of the Appellant before

the presiding judge in Chambers at the Court of Appeal located

at the Court House, in the City of Regina, in the Province of

Saskatchewan, on Tuesday, the 7th day of October, A.D. 1980,

at 10:00 o'clock in the forenoon or so soon thereafter as counsel

for the appellant may be heard for leave to appeal by way of

a case stated by His Honour Judge R. Kucey, one of the judges

of the Provincial Court of Saskatchewan, pursuant to Section

762 of the criminal Code, and for a date and time for' the

hearing of the said appeal should leave be granted.

THE FOLLOWING ARE MY GROUNDS FOR APPEAL:

1. That the Learned Trial Judge erred in law in

holding that he could take jUdicial notice, in the

absence of any evidence tendered by the Crown or by

the Defence to explain the delay between the time the

offence was alleged to have been committed and the time

the breathalyzer test was taken, of matters such as the

time it would take to set up and warm up the breathalyzer

to explain such delay.

~ND FURTHER TAKE NOTICE THAT IN SUPPORT of this Application

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will be read:

1. The case stated by Judge R. Kucey, dated the

6th day of October, A.D. 1980;

2. The application for a stated case dated the

6th day of October, A.D. 1980;

3. Such other material as the Appellant may submit

and the Honourable Court may allow.

I DESIR$ that my case be presented by oral argument

by my Counsel.

MY ADDRESS FOR SERVICE 'in 'the City of Regina, is at

the offices of,

TOEWS - KAUFMAN

Barristers and Solicitors

2042 Cornwall Street

REGINA, ~askatchewan

DATED at the City of Saskatoon, in the Province of

Saskatchewan, this 6th day of October, A.D. 1980.

HALYK & ALLBRIGHT

AppHcant,

TO: DENIS QUON, Agent.ofthe Attorney General forthe Province of Saskatchewan.

TO: The RegistrarCourt of Appeal for 'SaskatchewanRegina, Saskatchewan.

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