R. v. Pinske, 1989 CanLII 47 (SCC), [1989] 2 SCR 979

Alan Albert Pinske Appellant

v.

Her Majesty The Queen Respondent

Indexed as: R. v. Pinske

File No: 21047.

1989: October 12.

Present: Dickson C.J. and Lamer, Wilson, La Forest, Sopinka, Cory and McLachlin JJ.

on appeal from the court of appeal for british columbia

Evidence ‑‑ Admissibility ‑‑ Criminal negligence in the operation of a motor vehicle causing death ‑‑ Blood sample obtained by police ‑‑ Whether blood test admissible in evidence ‑‑ Whether jury was misdirected on the issue of causation.

Cases Cited

Referred to: R. v. Collins, [1987] 1 S.C.R. 265; R. v. Sieben, [1987] 1 S.C.R. 295; R. v. Pohoretsky, [1987] 1 S.C.R. 945.

APPEAL as of right from a judgment of the British Columbia Court of Appeal (1983), 30 B.C.L.R. (2d) 114, 6 M.V.R. (2d) 19, allowing an appeal from an acquittal on a charge of criminal negligence in the operation of a motor vehicle causing death and ordering a new trial. Appeal dismissed.

J. D. Thomas, for the appellant.

William F. Ehrcke, for the respondent.

The judgment of the Court was delivered orally by

The Chief Justice ‑‑ We need not hear from you Mr. Ehrcke. We have come to a conclusion in this appeal. Justice Lamer will deliver the judgment of the Court.

Lamer J. ‑‑ We are all of the view that, for the reasons given by the Court of Appeal (1983), 30 B.C.L.R. (2d) 114, 6 M.V.R. (2d) 19, as regards to the trial judge's instructions on causation, this appeal must fail and the order for a new trial must stand.

The Court of Appeal has not pronounced upon the admissibility in evidence of the blood test; two judges of the court have expressed views as regards the applicable principles to such a determination, each one placing emphasis on different factors when considering the facts of this case, but did not express final views on the admissibility of the evidence.

At the time of the trial judge's decision, this Court had not decided R. v. Collins, [1987] 1 S.C.R. 265, R. v. Sieben, [1987] 1 S.C.R. 295 and R. v. Pohoretsky, [1987] 1 S.C.R. 945. As there will be a new trial at which the trial judge will exercise his or her jurisdiction in the matter having regard to these and subsequent decisions of this Court, we do not feel it appropriate to express our views absent a finding below reversing the trial judge's decision.

The appeal is accordingly dismissed.

Judgment accordingly.

Solicitors for the appellant: Kinsman & Company, Penticton.

Solictor for the respondent: The Ministry of the Attorney General of British Columbia, Vancouver.