Supreme Court of Canada

R. v. Crosthwait, [1980] 1 S.C.R. 1089

Date: 1980-05-06

Her Majesty The Queen Appellant;

and

Robert Crosthwait Respondent.

1979: November 21, 22; 1980: May 6.

Present: Martland, Ritchie, Pigeon, Beetz, Estey, McIntyre and Chouinard JJ.

ON APPEAL FROM THE SUPREME COURT OF NEWFOUNDLAND, APPEAL DIVISION

Criminal law—Motor vehicles—Breathalyzer—Evidence—Certificate of analysis—Rebuttable presumption—Conclusive evidence ‘in the absence of any evidence to the contrary’—Evidence required to constitute ‘evidence to the contrary’—‘Mere possibility of inaccuracy’ insufficient—Criminal Code, R.S.C. 1970, c. C-34, ss. 236, 237(1)(c), (f), 771(2), (3)—Interpretation Act, R.S.C 1970, c. I-23, s. 24(1).

Respondent was seen driving a motorcycle in an erratic manner at around 1.35 a.m. He failed a preliminary breath test on a roadside screening device then went to a police station to be tested on a Borkenstein Breathalyzer. At trial, the statutory Certificate of Analyses was tendered as was a copy of the Instruction Manual issued by the manufacturer of the breathalyzer. The manual stated in part that “The temperature of the solution and room air must be within 1 °C of each other if accurate answers are to be obtained”. The technician admitted that when he made the check with the standard alcohol solution he noted the temperature of the solution but not the room temperature. The defence called as a witness a doctor in chemistry who did not claim to be an expert in breathalyzers and whose knowledge of these instruments was limited to careful readings of the Instruction Manual put in evidence by the Crown. This expert witness explained that there would be a difference in the reading if there was not an equilibrium of temperature between that of the room and that of the solution and that he would not put his signature to an analysis unless he had taken the two temperatures and unless they were the same. The magistrate dismissed the charge and his reasons were endorsed by the District Court Judge on the basis that the evidence indicated that the approved technician performed the tests in a manner that left the results open to uncertainty. This judgment was affirmed by the Appeal Division on the view that the failure of the technician to follow the prescribed mandatory procedure in testing the accuracy of the machine made the certificate inadmissible as evidence of the proportion of alcohol in the blood of the accused.

Held: The appeal should be allowed.

[Page 1090]

The certificate filed fully complied with s. 237(1)(f) of the Criminal Code and was by itself evidence of the results of the analyses. There is no implicit condition that the instrument used must be shown to be functioning properly and the technician to have followed the manufacturer’s instructions in testing its accuracy. It is clear from the wording of the Code that the rebuttable presumption arises from the mere statements in the certificate itself. That a scientist would not sign a certificate of analysis is irrelevant. Parliament has prescribed the conditions and did not see fit to require a check test, and for good reason, it wanted its prohibition to be exactly enforceable. The certificate was evidence and the only question was whether there was evidence to the contrary sufficient at least to raise reasonable doubt. A review of the defence expert’s evidence makes it clear that he did not show that the test could have been affected to such an extent as to affect the reading in what was not a borderline case (150 mg., i.e. 87 per cent in excess). The facts required for a conviction are established and a verdict of guilty should be entered without a need for a new trial.

R. v. Dygdala, 1976 ALTASCAD 167, [1977] 1 W.W.R. 104; R. v. Moreau, 1978 162 (SCC), [1979] 1 S.C.R. 261; R. v. Proudlock, 1978 15 (SCC), [1979] 1 S.C.R. 525; Wild v. The Queen, 1970 148 (SCC), [1971] S.C.R. 101; R. v. Fotti, 1978 2459 (MB CA), [1979] 1 W.W.R. 652, aff’d 1980 171 (SCC), [1980] 1 S.C.R. 589, [1980] 4 W.C.B. 238; R. v. Ouellette, 1980 9 (SCC), [1980] 1 S.C.R. 568, referred to.

APPEAL from a judgment of the Supreme Court of Newfoundland, Appeal Division[^1], affirming a judgment of Barry D.C.J.[^2] acquitting respondent on a charge under s. 236 of the Criminal Code. Appeal allowed, conviction entered, case referred to the District Court of Newfoundland for sentencing and adjudication of costs at trial and in that Court.

Robert Hyslop, for the appellant.

Eric Facey, for the respondent.

The judgment of the Court was delivered by

PIGEON J.—This is an appeal by leave of this Court from the judgment of the Court of Appeal of Newfoundland[^1] affirming the judgment of Barry D.C.J. (loc. cit. at p. 200) who dismissed a

[Page 1091]

Crown appeal from the acquittal of respondent, Robert Crosthwait, by Magistrate Fowler on summary conviction proceedings. The accused was charged that he:

On or about the 10th day of September, A.D., 1977 at or near Gander, Newfoundland did unlawfully drive a motor vehicle having consumed alcohol in such a quantity that the proportion thereof in his blood exceeded 80 milligrams of alcohol in 100 millilitres of blood, contrary to Sec. 236 of the Criminal Code of Canada.

The evidence before the magistrate disclosed that the accused, driving a motorcycle around 1:35 a.m. in an erratic manner, was first requested to provide a breath sample for a preliminary test on a roadside screening device. Having failed the test, he was requested to accompany the officer to a police station for breath tests on a Borkenstein Breathalyzer. The officer was a qualified technician duly authorized and he made the required two breath analyses, each of which gave a reading of 150 milligrams per 100 millilitres of blood. Between the two breath analyses, the officer made a test with a standard alcohol solution and verified that the result of this test, based upon the temperature of this solution which he noted, came within the prescribed tolerance. Having completed the two breath tests, the officer made a certificate of the two analyses with a notice of intention to produce as evidence and immediately served this notice upon the respondent. The Certificate of Analyses reads:

CERTIFICATE OF ANALYSES

I, B. McNeil , being a person designated as a qualified technician, by the Attorney General of Newfoundland pursuant to section 237(6) of the Criminal Code of Canada,

DO HEREBY CERTIFY:

THAT at Gander in the Province of Newfoundland pursuant to a demand under section 235(1) of the Criminal Code of Canada, I did take Two samples of the breath of a person indentified to me as Robert Crosthwait;

THAT I did receive each of the said samples directly into a Borkenstein Breathalyzer, Model 900, an instrument approved for this purpose pursuant to section 237(6) of the Criminal Code of Canada;

[Page 1092]

THAT I did perform a chemical analysis of each of the said samples by means of the said instrument in which a solution suitable for use in the said instrument and identified as an ampoule of potassium dichromate reagent lot #67422 was used; THAT I performed the said chemical analyses at Gander in the Province of Newfoundland; THAT one of the said samples was taken at 2:18 a.m. on the 10th day of September, 1977, and that the result of the proper chemical analysis of this sample was 150 milligrams of alcohol per 100 millilitres of blood;

THAT another of the said samples was taken at 2:36 a.m. on the 10th day of September, 1977, and that the result of the proper chemical analysis of this sample was 150 milligrams of alcohol per 100 millilitres of blood;

I FURTHER CERTIFY:

THAT this certificate of analyses is true to the best of my skill and knowledge.

DATED this 10th day of September, 1977, at Gander in the Province of Newfoundland.

(J.B. McNeil)

Qualified Technician

At the trial, the officer who had made the breath analyses was called by the Crown. The Certificate was tendered in evidence and duly received. There was also put in evidence a copy of the Instruction Manual issued by the manufacturer of the breathalyzer used for the test. In the part of this manual dealing with the use of a standard alcohol solution for making a check on the accuracy of the instrument, there is the following sentence: “The temperature of the solution and room air must be within 1°C of each other if accurate answers are to be obtained”. The technician admitted that when he made the check with the standard alcohol solution he noted the temperature of the solution, but not that of the room where the test was made. However, he said that the solution was taken by him from the locker in that same room where he kept the instrument itself.

The defence called as a witness a doctor in chemistry who did not claim to be an expert on the operation of breathalyzers. His knowledge of those instruments was limited to careful readings of the Instruction Manual which was put in evidence. The significant part of his testimony is as follows:

[Page 1093]

A. Any pure liquid or any solution tends to put one or more of its components into the vapour phase above the solution. The amount of the component which goes into the vapour phase depends directly on the temperature. To have a definitely established amount of substance in the vapour phase and that is what we are doing here, we are saying there will be a definitely established amount of alcohol in the vapour phase, we need for the solution to have reached equilibrium with its surroundings. Most importantly, this equilibrium involves the temperature of the surroundings. If one were to take a reading when the solution when not in equilibrium with its surroundings and then take a reading a little while later, the two readings of the amount of substance in the vapour phase would be different and they would constantly change until equilibrium is reached. Without actually carrying out a research program, I would not be able to state how much the difference would be, how much the change would be. But in any solution this would be the same. If one has the solution at a different temperature, reads the temperature in the solution and then takes a reading, leaves it a few minutes or a certain time, takes another reading, then the values of the amount of whatever we are looking at in the vapour phase would be different. Eventually, when the two, the solution and the surroundings were in equilibrium, no matter how long you took between readings, they would always come out the same. Once equilibrium has been reached.

Q. Now, you’ve had an opportunity to familiarize yourself with the contents of that manual? A. Yes.

Q. Is it reasonable to assume that two substances, namely air and water, because they may be in the same room, one being locked in a cupboard at a lower altitude than the other, that these two substances, that is the ambient air and the solution would be within one degree centigrade of each other? A. What one can say about this Your Honour and I’ll have to edge it around because one hasn’t seen where the things are kept and so on, as one knows from one’s own house, the temperature around the thermostat for example within a room may record 70 degrees Fahrenheit and yet one knows that another portion of the room the temperature is not 70 degrees Fahrenheit, it may be higher or it may be lower. Consequently, it is possible for temperatures to vary between where the solution was stored and the general area where the test was carried out, it is possible.

A. I would not put my signature to an analyses unless I had got the two temperatures and unless they were the same.

[Page 1094]

Magistrate Fowler stated his reasons for dismissing the charge in these words:

…This particular case rests on two factors as presented by way of defence, the first being whether or not the taking of the room temperature is essential to the proper and correct operation of the breathalyzer machine. It is this Court’s understanding that once the machine is ready to receive its first human breath sample and in fact does so, the reading is recorded and then it is checked by a device known as an equilibrator to ensure its proper functioning. If the technician is satisfied that the machine is working properly, he then takes the required second sample of human breath and once again prepares the machine and records the reading. The problem now arises, whether or not the test performed to determine the proper functioning of the breathalyzer machine was in itself a proper test, insofar as the parameters of the equilibrator are concerned; that is the temperature and the concentration of alcohol in the solution. The manual which has been entered as Exhibit #2, BM#2, the Breathalyzer Model 900 Instruction Manual, states on page 26, and I quote from that Exhibit, “room air pumped through water containing alcohol will take on a definite amount of alcohol controlled by the concentration of alcohol in the solution and the temperature. The temperature of the solution and room air must be within one degree celcius of each other if accurate answers are to be obtained”. On page 27 of the same manual, it is stated, “check the temperature of the solution to see that it is close to room temperature.” Notwithstanding the chart on page 27 of the same manual, which no doubt was derived knowing the parameters or variables of temperature and alcohol content by the producers of the manual, the test of the machine’s accuracy is done using an ‘equilibrator’, in a room with the specific temperature, and that temperature must be recorded in order to determine its deviation, if any, from that of the air and alcohol-water solution. If this is not done, the technician does not know if his test on the machine yields a correct reading. In the case before the bar today, Cst. McNeil, the technician, stated, and I’m paraphrasing the Constable’s statement, that if he didn’t get a correct reading the machine would not function properly and the reading would be disqualified. He further stated that if the proper procedure was followed nothing could go wrong. He also stated that he did not take and record the room temperature but that since the standard alcohol solution test worked out, then the room temperature and the air-alcohol solution temperature must be within one degree celcius of each other. In effect he was saying that since the test worked out, the machine worked out, and since the machine worked, therefore the test worked. The obvious question

[Page 1095]

now then that has to be considered is “what if both the machine and the equilibrator were in error?” The only answer would be that the degree of error would be absolutely unknown. The only way to accurately perform the test of the breathalyzer machine’s proper functioning is with a good equilibrator test. In the evidence of Dr. Newlands, the expert chemist, he stated that he has had twenty-two years experience in the field of chemistry and is head of the Department of Chemistry at Memorial University of Newfoundland. He further states to have a definitely established amount of alcohol in the vapour stage, the solution must reach equilibrium with its surroundings, most importantly the temperature of its surroundings. He further states you could not assume both temperatures to be the same. A good equilibrator test would require, I am not quoting this particular point now by Dr. Newlands, this is the Court’s words, a good equilibrator test would require the room temperature to be known as well as the concentration of alcohol in the solution. The distinction between this case and the case of R. vs. Dygdala in the Supreme Court of Alberta is that the instructional manual was not entered in that case as well as no expert chemical evidence was entered to assist in interpreting the principles of the chemistry involved. Referring to use of the equilibrator, on page 26 of the Instructions Manual for the Model 900 Breathalyzer under the heading “Use of the Equilibrator”, which one would have to assume from this piece of evidence defines the functionality of that particular equilibrator, without the temperature noted, the instruction manual’s reference to the use of the equilibrator becomes meaningless and it does indeed give rise to a reasonable doubt as to the accuracy of the recorded blood‑alcohol ratio of this particular accused. There are other factors in this case, however, the case rests primarily on the issue just considered, and consequently having said what I have just said, I find that I cannot enter a conviction in this particular matter and I enter a finding of ‘not guilty’. The case is dismissed against Mr. Crosthwait.

These reasons were endorsed by Barry D.C.J. who, after quoting extensively from the evidence and reviewing cases including Dygdala[^3] concluded as follows (at p. 214):

While the Code places a great responsibility and power in the hands of an approved technician in making a determination of the blood-alcohol level of an accused person, it also requires of him that he perform his test

[Page 1096]

properly, using approved apparatus and materials. The evidence of Dr. Newlands is that he performed such tests in a manner as to leave the results open to question or uncertainty. In my view that is unquestionably evidence to the contrary within the meaning of section 237(1)(c). The learned magistrate was right in accepting his testimony as to the principles involved in the conduct of the standard alcohol solution tests, and of his critical appraisal of the method used by the approved technician in this case. Accordingly I hereby confirm the decision of the learned magistrate and dismiss this appeal.

On appeal Morgan J.A. with whom Furlong C.J.N. and Gushue J.A. concurred, said on the main issue (at pp. 198-200):

In my view the rebuttable presumption of the proportion of alcohol in the blood of an accused that arises under Sec. 237(1)(c) can only arise when it is made clear that all the conditions prescribed by that section have been fulfilled. As I read the provisions of Sec. 237, the accused is entitled to challenge the statements contained in the certificate and if the information elicited on cross-examination reveals that any one of the prescribed statutory conditions has not, in fact, been fulfilled, the certificate itself cannot be relied on as evidence of the proportion of alcohol in the accused’s blood.

One of the statutory prerequisites is that a chemical analysis of each sample be made by means of an approved instrument operated by a qualified technician. An approved instrument being defined as,

“…an instrument of a kind that is designed to receive and make a chemical analysis of a sample of the breath of a person in order to measure the proportion of alcohol in the blood of that person and that is approved as suitable for the purposes of this section by order of the Attorney General of Canada”,

Borkenstein Breathalyzer Model 900 is an approved instrument within the meaning of that section.

In this case the qualifications of the technician is not in issue but objection was taken as to the accuracy of the particular instrument used by him.

A breathalyzer Instruction Manual is supplied with each machine for the information and guidance of operators. In addition to providing a check list of the proper steps to be taken by the operator to eliminate error in conducting the breath sample test, the Manual makes provision for the testing of the machine itself to ensure

[Page 1097]

the accuracy of the reading obtained. This test involves the use of the equilibrator in which the standard alcohol solution is placed. With respect to the use of the equilibrator the Manual prescribes that when the alcohol solution is being performed the temperature of the solution and room air must be within 1°C of each other if accurate answers are to be obtained.

The importance of ensuring that the solution and room air are within 1°C of each other if accurate answers are to be obtained was re-emphasized by Dr. Newlands in his evidence to which I have already referred. It was admitted that the technician did not take the room temperature when testing the machine. Because the reading obtained was within 10 milligrams of the predetermined reading on his chart he assumed that the solution and room temperature were within the prescribed limits of each other and thus the machine was functioning properly. An assumption he was not entitled to make without knowing the room temperature.

In my opinion, it is implicit in the statutory approval of a class of instruments that a particular instrument of that class is functioning properly. The failure on the part of the technician to follow the prescribed mandatory procedure in testing the accuracy of the machine meant that the reliability of that particular machine was left in doubt and therefore he could not certify the accuracy of the reading obtained on the blood samples tests, as required by statute. The certificate then cannot be said to have been in strict accord with the statutory provision which is a prerequisite to the admissibility of the certificate as proof of the proportion of alcohol in the blood of the accused. There being no other evidence adduced the accused was properly acquitted and the learned District Court Judge quite properly affirmed the Magistrate’s judgment.

I would accordingly dismiss the appeal.

Subsection 236(1) under which the accused was charged reads:

236. (1) Every one who drives a motor vehicle or has the care or control of a motor vehicle, whether it is in motion or not, having consumed alcohol in such a quantity that the proportion thereof in his blood exceeds 80 milligrams of alcohol in 100 millilitres of blood, is guilty of an indictable offence or an offence punishable on summary conviction and is liable…

Respecting evidence in prosecutions under this provision, paras, (c) and (f) of subs. 237(1) provide:

237. (1) In any proceeding under Section 234 or 236,

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(c) where samples of the breath of the accused have been taken pursuant to a demand made under subsection 235(1), if

(i) not proclaimed

(ii) each 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, with an interval of at least fifteen minutes between the times when the samples were taken,

(iii) each sample was received from the accused directly into an approved container or into an approved instrument operated by a qualified technician, and

(iv) a chemical analysis of each sample was made by means of an approved instrument operated by a qualified technician,

evidence of the results of the chemical analyses so made is, in the absence of any evidence to the contrary, proof that the proportion of alcohol in the blood of the accused at the time when the offence was alleged to have been committed was, where the results of the analyses are the same, the proportion determined by such analyses and, where the results of the analyses are different, the lowest of the proportions determined by such analyses;

(f) where samples of the breath of the accused have been taken pursuant to a demand made under subsection 235(1), a certificate of a qualified technician stating

(i) that each chemical analysis of the samples has been made by means of an approved instrument operated by him in which a substance or solution suitable for use in that approved instrument and identified in the certificate was used,

(ii) the results of the chemical analyses so made, and

(iii) if the samples were taken by him,

(A) not proclaimed

(B) the time when and the place where each sample and any specimen described in clause (A) was taken, and

(C) that each sample was received from the accused directly into an approved container or into an approved instrument operated by the technician,

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is evidence of the statements contained in the certificate without proof of the signature or the official character of the person appearing to have signed the certificate.

Concerning para. (f) it must be noted that subs. 24(1) of the Interpretation Act (R.S.C. 1970, c. I-23) provides:

24. (1) Where an enactment provides that a document is evidence of a fact without anything in the context to indicate that the document is conclusive evidence, then, in any judicial proceedings, the document is admissible in evidence and the fact shall be deemed to be established in the absence of any evidence to the contrary.

In the instant case, the certificate filed at the trial fully complies with the conditions stated in para. (f). It was, therefore, by itself, evidence of the results of the analyses. With respect, I cannot agree that there is another implicit condition namely, that the instrument used must be shown to have been functioning properly, and the technician had followed the manufacturer’s instructions in testing its accuracy. It is clear from the wording of the Code that the rebuttable presumption arises from the mere statements in the certificate itself. The presumption may no doubt be rebutted by evidence that the instrument used was not functioning properly but the certificate cannot be rejected on that amount. It may very well be that a scientist would not sign a certificate of analysis on the basis of the tests as performed by the technician, but this is irrelevant. Parliament has prescribed the conditions under which a certificate is evidence of the results of breath analyses and did not see fit to require evidence that the approved instrument was operating properly. Parliament did not see fit to require a check test be made with a standard alcohol solution and made reference only to the solution used for the actual test. Technicians are instructed to make a check test but the making of this test or its results have not been made conditions of the validity of the certificate and it has not been provided that the certificate would not be valid if it was not shown that the instrument had been maintained and operated in accordance with the manufacturer’s instructions.

[Page 1100]

There is no need to dwell on the reasons for which Parliament did not specify those additional conditions, they are obvious. In R. v. Moreau[^4], Beetz J. said (at p. 273):

…one of the reasons if not the only reason why Parliament prescribed the use of approved instruments must have been that it wanted its precise prohibition to be exactly enforceable. This intent would be frustrated if approved instruments were treated as ordinary instruments.

This does not mean that the accused is at the mercy of the technician: while the certificate is evidence by itself, the facts of which it is evidence are “deemed to be established only in the absence of any evidence to the contrary”. Thus, any evidence tending to invalidate the result of the tests may be adduced on behalf of the accused in order to dispute the charge against him. As was pointed out in R. v. Proudlock[^5], it is not necessary in such cases that the rebutting evidence should do more than raise a reasonable doubt and, of course, this evidence may be sought in depositions given by witnesses of the Crown as well as in depositions of defence witnesses. Therefore, in my view, the situation here is that the certificate was evidence of the results of the analyses by virtue of the express provisions of the Criminal Code, however, the further question remained: Was there any evidence to the contrary sufficient at least to raise a reasonable doubt?

The evidence on the basis of which the accuracy of the results of the breath tests was questioned may be briefly summarized. The tests themselves were not disputed, what was challenged was the check test with the standard alcohol solution. It was pointed out that, according to the Instruction Manual, for accurate results, the temperature of the solution and room air must be within 1°C of each other. The technician did record the solution temperature, he did not verify that it was within 1°C of the air temperature of the room in which it was kept and the defence expert witness says it is possible that it did differ by more than 1°C. As to the influence this may have had on the accuracy of

[Page 1101]

the results of the check test, he says: “Without actually carrying out a research program, I would not be able to state how much difference would be, how much the change would be”.

After examining the whole of the evidence of Dr. Newlands, I find that it does not provide any evidence of a probability of a difference of more than 1 °C and no evidence of how or whether such a possible difference could have influenced the results of the test to a significant extent. In this connection I feel that it is important to note that this is not a borderline case concerning the excess blood alcohol above the allowable maximum of 80 milligrams. The two breath tests disclosed 150 milligrams, that is 87 per cent in excess. There is no suggestion in the evidence that any conceivable difference between room air and alcohol solution temperature could have affected the validity of the check test to such an extent as to conceal a malfunction of this order of magnitude.

I am therefore of the opinion that the evidence of Dr. Newlands does not constitute evidence to the contrary under s. 237(1)(c) of the Criminal Code. Mere possibility of some inaccuracy will not assist the accused. What is necessary to furnish evidence to the contrary is some evidence which would tend to show an inaccuracy in the breathalyzer or in the manner of its operation on the occasion in question of such a degree and nature that it could affect the result of the analysis to the extent that it would leave a doubt as to the blood alcohol content of the accused person being over the allowable maximum. There is no such evidence before the Court in the case at bar. Dr. Newlands’ testimony, taken at its face value, does not supply it. It merely affords evidence of a mere possibility of some inaccuracy in the check test, but no evidence as to the extent of such inaccuracy in the case at bar or as to the possibility or probability of the effect which any such inaccuracy might have had upon the results of the breath analysis. The certificate therefore remains uncontradicted.

At the hearing in this Court, counsel for the appellant referred to the unreported judgment in R. v. Furey, a Newfoundland Provincial Court

[Page 1102]

case, where reference was made to scientific literature and experiments designed to show the extent of the influence of differences between room air temperature and standard alcohol solution temperature in performing a check test on a Borkenstein Breathalyzer; the variation was not significant amounting only to a few milligrams. I do not find it necessary to consider whether this being a matter of science, judicial notice could be taken of those facts. It does not appear to me that there is any need in the instant case to go into that question.

In my view in order to conclude that there was no evidence before the Magistrate to rebut the certificate, it is enough to note that the only evidence was merely of a possibility of a temperature difference without any indication that this could have affected the results to a significant extent. While it is for the trier of fact to weigh the evidence, the question whether there is any evidence is a question of law and an acquittal based on doubt resting on a conjectural possibility will be set aside: Wild v. The Queen[^6].

Seeing that all the facts required for the conviction are established by the evidence, there is no need for a new trial, and the proper order is to enter a verdict of guilty as was done by the Manitoba Court of Appeal in R. v. Fotti[^7], (affirmed by this Court, February 7, 1980[^8]).

Concerning the sentence, it appears to me that the proper order in the circumstances would be to return the case to the first court of appeal, that is, the District Court of Newfoundland, in order that, after hearing the parties, it may pass sentence and also adjudicate on costs at trial and in that Court. I would not award costs on the second appeal, however, I must point out that Morgan J.A. was in error in holding that, by virtue of subs. 610(3) of the Criminal Code, no costs would be allowed in that Court. These being summary conviction proceedings, the appeal to that Court was governed by s. 771 of the Criminal Code, subss. (2) and (3) of which provide:

[Page 1103]

(2) Sections 601 to 616 apply mutatis mutandis to an appeal under this section.

(3) Notwithstanding subsection (2), the court of appeal may make any order with respect to costs that it considers proper in relation to an appeal under this section.

In R. v. Ouellette[^9] it was held that, as a result of these provisions, costs could be awarded against the Crown.

I would allow the appeal, set aside the judgments of the courts below, enter a verdict of guilty and direct that the case be referred to the District Court of Newfoundland for the imposition of sentence and the adjudication of costs at trial and on appeal to that Court. I would make no order as to the costs in the Court of Appeal of Newfoundland but, in accordance with the terms on which leave to appeal was granted, the appellant will pay respondent’s costs in this Court.

Appeal allowed.

Solicitor for the appellant: The Attorney General of Newfoundland, St. Johns, Newfoundland.

Solicitor for the respondent: Eric C. Facey, Gander, Newfoundland.

[^1]: (1979), 20 Nfld. & P.E.I.R. 191.

[^2]: (1979), 20 Nfld. & P.E.I.R. 200.

[^3]: sub nom. R. v. Dygdala, 1976 ALTASCAD 167, [1977] 1 W.W.R. 104 (Alta. C.A.).

[^4]: 1978 162 (SCC), [1979] 1 S.C.R. 261.

[^5]: 1978 15 (SCC), [1979] 1 S.C.R. 525.

[^6]: 1970 148 (SCC), [1971] S.C.R. 101.

[^7]: 1978 2459 (MB CA), [1979] 1 W.W.R. 652.

[^8]: 1980 171 (SCC), [1980] 1 S.C.R. 589.

[^9]: 1980 9 (SCC), [1980] 1 S.C.R. 568.