R. v. Andrea (M.M.), 2004 NSCA 130

• Judge: Glube, C.J.N.S., Chipman and Cromwell, JJ.A.
• Court: Court of Appeal of Nova Scotia (Canada)
• Case Date: Tuesday October 12, 2004
• Jurisdiction: Nova Scotia
• Citations: 2004 NSCA 130;(2004), 227 N.S.R.(2d) 193 (CA)

R. v. Andrea (M.M.) (2004), 227 N.S.R.(2d) 193 (CA);

 720 A.P.R. 193

MLB headnote and full text

Temp. Cite: [2004] N.S.R.(2d) TBEd. OC.036

Her Majesty the Queen (appellant) v. Martin Michael Andrea (respondent)

(CAC 212243; 2004 NSCA 130)

Indexed As: R. v. Andrea (M.M.)

Nova Scotia Court of Appeal

Glube, C.J.N.S., Chipman and Cromwell, JJ.A.

October 28, 2004.

Summary:

An accused was charged with driving while having an excessive blood-alcohol level and impaired driving. The accused sought to have the certificate of analysis excluded from evidence on the basis that the police officer had lacked reasonable and probable grounds to make a breathalyzer demand and the breath tests constituted an illegal search under s. 8 of the Charter.

The Nova Scotia Provincial Court, in a decision reported at 213 N.S.R.(2d) 341; 667 A.P.R. 341, held that there was no s. 8 infringement, convicted the accused of driving while having an excessive blood-alcohol level and stayed the charge of impaired driving. The accused appealed.

The Nova Scotia Supreme Court, in a decision reported at 223 N.S.R.(2d) 197; 705 A.P.R. 197, allowed the appeal, excluded the certificate of analysis, set aside the conviction and entered an acquittal. The court also set aside the stay of the impaired driving charge and entered an acquittal. The Crown appealed.

The Nova Scotia Court of Appeal allowed the appeal, set aside the Supreme Court's decision, restored the conviction for driving while having an excessive blood-alcohol level, set aside the acquittal on the impaired driving charge and restored the stay on that charge.

Criminal Law - Topic 1362

Offences against person and reputation - Motor vehicles - Impaired driving - Evidence and proof - At approximately 2 a.m., a police officer observed the accused driving at 70 kmh in a 50 kmh zone and executing fast rolling stops at two flashing red lights - The officer engaged his emergency lights - The accused travelled five blocks before stopping - He finished eating french fries before speaking to the officer - The officer detected a light odour of alcohol - The accused's eyes were glassy with enlarged pupils - The accused fumbled with papers and spoke with a thick tongue - The officer did not note any irregularities in the accused's walking - The officer made a breathalyzer demand - The Nova Scotia Supreme Court set aside a conviction for driving while having an excessive blood-alcohol level, holding that the officer lacked sufficient grounds to make the breathalyzer demand - The Nova Scotia Court of Appeal restored the conviction - Although acknowledging that the circumstances had to be taken together in determining the surficiency of the grounds, the Supreme Court in effect weighed them separately and concluded that the totality of the evidence did not overcome the equivocal nature of the parts - In doing so, the court also omitted reference to certain indicia of impairment.

Criminal Law - Topic 1372

Offences against person and reputation - Motor vehicles - Impaired driving - Breathalyzer or blood sample - Demand - Reasonable grounds - [See Criminal Law - Topic 1362].

Cases Noticed:

R. v. Nickerson (W.S.) (1999), 178 N.S.R.(2d) 189; 549 A.P.R. 189 (C.A.), refd to. [para. 6].

R. v. Bernshaw (N.), [1995] 1 S.C.R. 254; 176 N.R. 81; 53 B.C.A.C. 1; 87 W.A.C. 1; 95 C.C.C.(3d) 193, refd to. [para. 7].

R. v. Biniaris (J.), [2000] 1 S.C.R. 381; 252 N.R. 204; 134 B.C.A.C. 161; 219 W.A.C. 161, refd to. [para. 14].

R. v. Yebes, [1987] 2 S.C.R. 168; 78 N.R. 351, refd to. [para. 14].

R. v. Huddle (1989), 102 A.R. 144 (C.A.), refd to. [para. 19].

Counsel:

Daniel A. MacRury, for the appellant;

Brian Casey, for the respondent.

This appeal was heard on October 12, 2004, by Glube, C.J.N.S., Chipman and Cromwell, JJ.A., of the Nova Scotia Court of Appeal. Chipman, J.A., delivered the following judgment for the court on October 28, 2004.