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.
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