For your Court Preparation Review: R. v. LeBlanc, 1981 CanLII 3213 (NB CA) Source: Court of Appeal of New Brunswick Date: 1981-11-13 Other citations: 36 NBR (2d) 675 — 94 APR 675 — 64 CCC (2d) 31 — 13 MVR 5 Citation: R. v. LeBlanc, 1981 CanLII 3213 (NB CA), , retrieved on 2026-10-14 Most recent unfavourable mention R. v. Dyment, 1988 CanLII 10 (SCC), [1988] 2 SCR 417 […] Distinguished: R. v. LeBlanc (1981), 1981 CanLII 3213 (NB CA) , 64 C.C.C. (2d) 31 ; referred to: R. v. Big M Drug Mart Ltd., 1985 CanLII 69 (SCC) , [1985] 1 S.C.R. 295 ; Hunter v. Southam Inc. , 1984 CanLII 33 (SCC) , [1984] 2 S.C.R. 145 ; Semayne's Case (1604), 5 Co. Rep. 91 a, 77 E.R. 194 ; Entick v. Carrington (1765), 19 […] REGINA v. LEBLANC* New Brunswick Court of Appeal, Hughes C.J.N.B., Richard and Stratton JJ.A. November 13, 1981. D. B. MacDonald, for the Crown, appellant. J. D. Humphrey, for accused, respondent. The judgment of the Court was delivered by RICHARD J.A.:—Mr. LeBlanc was charged and convicted on an information charging that he: on or about the 29th day of April, A.D. 1980 at or near McLeod Siding in the County of Restigouche and Province of New Brunswick having consumed alcohol in such a quantity that the proportion thereof in his blood exceeded eighty milligrams of alcohol in one hundred millilitres of blood did have care and control of a motor vehicle contrary to Section 236 of the Criminal Code of Canada and amendments thereto. Mr. LeBlanc successfully appealed his conviction to a Judge of the Court of Queen's Bench and the present appeal is taken by the Crown against his acquittal. *Leave to appeal to the Supreme Court of Canada refused (Laskin C.J.C., Ritchie and Chouinard JJ.) February 1, 1982. The issue in this appeal is whether the Crown proved, beyond a reasonable doubt, that at the time of the alleged offence, the alcohol content in Mr. LeBlanc's blood exceeded 80 mg. per 100 ml. of blood. In deciding this issue the following facts are important. The facts At approximately 9:35 p.m. on April 29, 1980, Mr. LeBlanc drove his car into the home of Mr. Adams which was located 75 ft. away from the highway causing considerable damage to the house and to Mr. LeBlanc's car. The R.C.M.P. were immediately called and arrived at the scene at 10:00 p.m. They found Mr. LeBlanc lying across the front seat with his feet underneath the steering- wheel and his head on the seat near the door on the passenger's side. No one else was in the car and the doors were so damaged they could not be opened. Mr. LeBlanc's head was bleeding on to the seat, he had a strong odour of alcohol, his eyes were bloodshot and three unopened bottles of beer were found by the police in the car. Constable Simard removed the rubber seal from a vacuum- sealed vial which he had in his brief-case and by using a piece of paper which he found in the car succeeded in collecting sufficient blood in the vial for an analysis to be made later on. The result of the analysis showed an alcohol content of 200 mg. of alcohol in 100 ml. of blood, that is, two and one-half times the amount required for the commission of the offence described in s. 236 [rep. & sub. 1974-75-76, c. 93, s. 17] of the Criminal Code. In finding Mr. LeBlanc guilty the trial Judge said: ... there is no other rational explanation but that the blood shown on ex. P-1 on the seat of the automobile ... was, in fact, blood coming from the accused. I am prepared to accept the fact that there was no other liquid in the vial which would be a cause for the sample to be higher than what Miss Baughan (the analyst) found it to be. Click here.

 R. v. LeBlanc, 1981 CanLII 3213 (NB CA)

Source:

Court of Appeal of New Brunswick

Date:

1981-11-13

Other citations:

36 NBR (2d) 675 — 94 APR 675 — 64 CCC (2d) 31 — 13 MVR 5

Citation:

R. v. LeBlanc, 1981 CanLII 3213 (NB CA), <https://canlii.ca/t/gckcx>, retrieved on 2026-10-14

Most recent unfavourable mention

R. v. Dyment, 1988 CanLII 10 (SCC), [1988] 2 SCR 417

[…]   Distinguished: R. v. LeBlanc (1981), 1981 CanLII 3213 (NB CA) , 64 C.C.C. (2d) 31 ; referred to: R. v. Big M Drug Mart Ltd., 1985 CanLII 69 (SCC) , [1985] 1 S.C.R. 295 ; Hunter v. Southam Inc. , 1984 CanLII 33 (SCC) , [1984] 2 S.C.R. 145 ; Semayne's Case (1604), 5 Co. Rep. 91 a, 77 E.R. 194 ; Entick v. Carrington (1765), 19   […]

REGINA v. LEBLANC* 

New Brunswick Court of Appeal, Hughes C.J.N.B., Richard and Stratton JJ.A. 

November 13, 1981. 

D. B. MacDonald, for the Crown, appellant. 

J. D. Humphrey, for accused, respondent. 

The judgment of the Court was delivered by 

RICHARD J.A.:—Mr. LeBlanc was charged and convicted on an 

information charging that he: 

on or about the 29th day of April, A.D. 1980 at or near McLeod Siding in the 

County of Restigouche and Province of New Brunswick having consumed 

alcohol in such a quantity that the proportion thereof in his blood exceeded 

eighty milligrams of alcohol in one hundred millilitres of blood did have care 

and control of a motor vehicle contrary to Section 236 of the Criminal Code of 

Canada and amendments thereto. 

Mr. LeBlanc successfully appealed his conviction to a Judge of the 

Court of Queen's Bench and the present appeal is taken by the 

Crown against his acquittal. 

*Leave to appeal to the Supreme Court of Canada refused (Laskin C.J.C., Ritchie 

and Chouinard JJ.) February 1, 1982. 

The issue in this appeal is whether the Crown proved, beyond a 

reasonable doubt, that at the time of the alleged offence, the 

alcohol content in Mr. LeBlanc's blood exceeded 80 mg. per 100 

ml. of blood. In deciding this issue the following facts are important. 

The facts 

At approximately 9:35 p.m. on April 29, 1980, Mr. LeBlanc 

drove his car into the home of Mr. Adams which was located 75 ft. 

away from the highway causing considerable damage to the house 

and to Mr. LeBlanc's car. The R.C.M.P. were immediately called 

and arrived at the scene at 10:00 p.m. They found Mr. LeBlanc 

lying across the front seat with his feet underneath the steering-

wheel and his head on the seat near the door on the passenger's 

side. No one else was in the car and the doors were so damaged 

they could not be opened. Mr. LeBlanc's head was bleeding on to 

the seat, he had a strong odour of alcohol, his eyes were bloodshot 

and three unopened bottles of beer were found by the police in the 

car. Constable Simard removed the rubber seal from a vacuum-

sealed vial which he had in his brief-case and by using a piece of 

paper which he found in the car succeeded in collecting sufficient 

blood in the vial for an analysis to be made later on. The result of 

the analysis showed an alcohol content of 200 mg. of alcohol in 100 

ml. of blood, that is, two and one-half times the amount required 

for the commission of the offence described in s. 236 [rep. & sub. 

1974-75-76, c. 93, s. 17] of the Criminal Code. In finding Mr. 

LeBlanc guilty the trial Judge said: 

... there is no other rational explanation but that the blood shown on ex. P-1 

on the seat of the automobile ... was, in fact, blood coming from the accused. 

I am prepared to accept the fact that there was no other liquid in the vial 

which would be a cause for the sample to be higher than what Miss Baughan 

(the analyst) found it to be. 

As I understand the evidence of the analyst, the question of contamination 

could affect the blood sample if it were to be tested for ... I do not know, the 

presence of other foreign parts in the blood. But nothing could contaminate 

the blood so as to cause the blood to have a higher reading of alcohol but 

alcohol itself. 

(Emphasis added.) 

The Judge on appeal, in his reasons for acquitting Mr. LeBlanc, 

said [35 N.B.R. (2d) 285 at p. 290]: 

On the basis of the evidence the learned trial judge inferred that the 

substance picked up on the seat was blood, that it came from the accused, 

that it contained too high a proportion of alcohol and the other ingredients of 

the offence not being in issue, found the appellant guilty. Were I satisfied that 

the substance analysed was "a sample of blood of the accused", I would not 

disturb such inferences. 

(Emphasis added.) From this it is evident that the Judge on 

appeal did not believe that the analyzed blood was a true sample 

of the blood of the accused. If so, what then is the basis of his 

disbelief? He said [at pp. 290-1]: 

The evidence shows that a sample of blood is usually taken from a person by a 

sterile syringe, then inserted in a sterile vacuum container and refrigerated 

until analyzed. Such evidence creates an irresistible presumption that the 

sample is a representative part of the blood of the person. 

In the present case there is direct evidence that the blood analyzed was 

exposed to substances not found in the bloodstream of a person; in the words 

of the analyst, "exposed to bacteria, anything that is in the environment." It 

was exposed to surrounding air while lying on the seat and then placed in a 

non-vacuum bottle. It was also exposed to paper of unknown origins and the 

car seat itself. It was not refrigerated until three days later during which it 

went from the exhibit locker through the mail to the lab. While the position of 

the blood on the seat immediately under the head of the accused leads to the 

inference that it came from the accused, it also leads to the inference that it 

was soiled by hair, sweat, possibly saliva, vomit or other stomach content. 

(Emphasis added.) As I understand it the Judge on appeal conjec

tured that Mr. LeBlanc's blood could have been contaminated by 

(1) hair; (2) sweat; (3) saliva; (4) vomit; (5) other stomach content, 

or to make it as complete as one may conjecture, (6) anything that 

is in the air. Assuming that this is so, are we not concerned here 

with the possibility of one and only one ingredient being added to 

the blood of Mr. LeBlanc, that is, alcohol, and if so, is alcohol 

generally found in hair, sweat, saliva, vomit, stomach content or 

in the air? In the present case no evidence was adduced to suggest 

that the sample which was analyzed was contaminated by any of 

such substances. I find that the trial Judge was right in concluding 

this when he said "nothing could contaminate the blood so as to 

cause the blood to have a higher reading of alcohol but alcohol 

itself". This conclusion is well supported by the expert evidence of 

Miss Baughan where she said [at pp. 289-901: 

"The only thing I can suggest is that all that I found in this sample was ethyl 

alcohol. It wasn't a putrefied sample, there were no other contaminates [sic] 

in it. Often cases I will get a putrefied sample, you can recognize it immedi

ately just by removing the cap, take one whiff, and there I ... numerous 

other volatile present and you would be able to see immediately if you have a 

contaminated or putrefied sample. The only thing I can say about this sample 

is that it is a very clean quote "clean" sample and that there was just ethyl 

alcohol in it." 

In R. v. Torrie, [1967] 3 C.C.C. 303, [1967] 2 O.R. 8, 50 C.R. 

300 (Ont. C.A.), Evans J.A. said at p. 306: 

I recognize that the onus of proof must rest with the Crown to establish the 

guilt of the accused beyond a reasonable doubt, but I do not understand this 

proposition to mean that the Crown must negative every possible conjecture, 

no matter how irrational or fanciful, which might be consistent with the 

innocence of the accused. 

Let us now examine what is the submission of counsel for Mr. 

LeBlanc. He submits that the wording of s. 237(1)(c.1) [enacted 

idem, s. 18(1)] of the Criminal Code contemplates the taking of a 

sample of blood from a consenting person directly into a sterile 

container to ensure the integrity of the sample to be analyzed. 

That paragraph states: 

237(1)(c.1) Where a sample of blood of the accused has been taken, if the 

sample was taken as soon as practicable after the time when the offence was 

alleged to have been committed and in any event not later than two hours 

after that time, evidence of the result of a chemical analysis of the sample of 

blood is, in the absence of any evidence to the contrary, proof of the 

proportion of alcohol in the blood of the accused at the time when the offence 

was alleged to have been committed; 

Counsel for Mr. LeBlanc submitted that this view was fortified by 

the wording of s. 237(2) [rep. & sub. idem, s. 18(3)] which states: 

237(2) No person is required to give a sample of blood, urine or other bodily 

substance for chemical analysis for the purposes of this section except breath 

as required under section 234.1, 235 or 240.1, and evidence that a person 

failed or refused to give such a sample or that such a sample was not taken is 

not admissible nor shall such a failure or refusal or the fact that a sample was 

not taken be the subject of comment by any person in the proceedings. 

(Emphasis added.) Notwithstanding the argument advanced by 

counsel for Mr. LeBlanc, in my opinion there was evidence upon 

which the trial Judge could be and was satisfied beyond 

reasonable doubt that the sample of Mr. LeBlanc's blood which 

was analyzed was a true and uncontaminated sample. The Judge 

on appeal concluded otherwise. 

The Crown may take an appeal to this Court only under s. 771 

of the Criminal Code with leave of the Court "on any ground that 

involves a question of law alone". In my view of the case the 

decision of the Judge on appeal is based upon an erroneous 

assumption that there was no evidence upon which the Judge of 

first instance could conclude that the sample of blood which was 

analyzed was a true sample of Mr. LeBlanc's blood. In so doing he 

erred in law. To reach such a conclusion the Judge on appeal 

conjectured the possibility of contamination of the blood sample 

without any evidence to support it. 

Leave to appeal is granted. The appeal is allowed and the 

conviction and sentence are therefore restored. 

Appeal allowed; conviction restored.