R. v. Baisley (J.K.), 2015 NBQB 33

Judge:Morrison, J.
Court:Court of Queen's Bench of New Brunswick
Case Date:January 08, 2015
Jurisdiction:New Brunswick
Citations:2015 NBQB 33;(2015), 430 N.B.R.(2d) 392 (TD)
 
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R. v. Baisley (J.K.) (2015), 430 N.B.R.(2d) 392 (TD);

    430 R.N.-B.(2e) 392; 1121 A.P.R. 392

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Temp. Cite: [2015] N.B.R.(2d) TBEd. FE.005

Renvoi temp.: [2015] N.B.R.(2d) TBEd. FE.005

Jacob Kaelan Baisley (appellant) v. Her Majesty the Queen (respondent)

(F/CRA/7/2013; 2015 NBQB 33; 2015 NBBR 33)

Indexed As: R. v. Baisley (J.K.)

Répertorié: R. v. Baisley (J.K.)

New Brunswick Court of Queen's Bench

Trial Division

Judicial District of Fredericton

Morrison, J.

January 30, 2015.

Summary:

Résumé:

The accused was found guilty of refusing to comply with an approved screening device demand, contrary to s. 254(5) of the Criminal Code. He appealed, arguing that the trial judge erred by (1) concluding that there was a lawful demand; and (2) failing to provide reasons in response to the ss. 8 and 9 Charter issues raised by the accused.

The New Brunswick Court of Queen's Bench, Trial Division, dismissed the appeal.

Criminal Law - Topic 1386.1

Motor vehicles - Impaired driving - Roadside screening test - Demand - Baisley was charged with refusing to comply with an approved screening device (ASD) demand - The arresting officer testified that he read the ASD demand from a police issued card and then asked Baisley " Will you provide a sample of your breath?", to which Baisley responded "No." - On cross-examination, the officer testified that he had asked " Would you like to provide a sample of your breath?" - The trial judge found that there had been a lawful demand and a clear refusal - Although the exact wording used by the officer could not be determined, it did not matter because Baisley was read a demand from the card and was advised of the consequences of a refusal - He was not misled into believing that he had an option that would not bring about a charge for refusal - The New Brunswick Court of Queen's Bench, Trial Division, dismissed Baisley's appeal - The trial judge considered the demand and refusal in the context of all the circumstances - There was no palpable and overriding error - Not only was there evidence upon which she could find as she did, but the approach adopted was correct in law - See paragraphs 18 to 27.

Criminal Law - Topic 1386.3

Motor vehicles - Impaired driving - Roadside screening test - Refusal - [See Criminal Law - Topic 1386.1 ].

Criminal Law - Topic 4684

Procedure - Judgments and reasons for judgment - Reasons for judgment - Sufficiency of - Baisley was found guilty of refusing to comply with an approved screening device (ASD) demand - He appealed, arguing that the trial judge erred by failing to provide reasons in response to the ss. 8 and 9 Charter issues that he raised - The New Brunswick Court of Queen's Bench, Trial Division, dismissed the appeal - In support of his Charter argument, defence counsel referred to a particular case (R. v. Marchionne) which did find a violation of ss. 8 and 9 - The trial judge referred specifically to Marchionne, distinguished it, and stated that the officer who arrested Baisley had reasonable grounds to make the ASD demand - While the trial judge did not make specific reference to ss. 8 and 9, it was clear that she addressed the Charter issue since Marchionne was put forward solely for the purpose of the Charter issue - Further, having concluded that there were reasonable grounds for the demand, there was no Charter breach and therefore no need for the trial judge to address the Charter issue - See paragraphs 28 to 30.

Droit criminel - Cote 1386.1

Infractions contre la personne et la réputation - Véhicules à moteur - Capacité de conduite affaiblie - Ordre de se soumettre à une vérification routière - [Voir Criminal Law - Topic 1386.1 ].

Droit criminel - Cote 1386.3

Infractions contre la personne et la réputation - Véhicules à moteur - Capacité de conduite affaiblie - Vérification routière - Refus - [Voir Criminal Law - Topic 1386.3 ].

Droit criminel - Cote 4684

Procédure - Jugements et motifs de jugement - Motifs de jugement - Caractère suffisant des motifs - [Voir Criminal Law - Topic 4684 ].

Cases Noticed:

R. v. Fowler (M.O.) (2006), 304 N.B.R.(2d) 106; 788 A.P.R. 106; 2006 NBCA 90, refd to. [para. 13].

Housen v. Nikolaisen et al., [2002] 2 S.C.R. 235; 286 N.R. 1; 219 Sask.R. 1; 272 W.A.C. 1; 2002 SCC 33, refd to. [para. 14].

Director of Investigation and Research, Competition Act v. Southam Inc. et al., [1997] 1 S.C.R. 748; 209 N.R. 20, refd to. [para. 15].

R. v. Boucher (1986), 73 N.B.R.(2d) 113; 184 A.P.R. 113 (T.D.), dist. [para. 21].

R. v. Torsney (B.) (2007), 221 O.A.C. 191 (C.A.), leave to appeal refused (2007), 374 N.R. 395; 241 O.A.C. 397 (S.C.C.), refd to. [para. 24].

R. v. Kurylyk (J.R.) (2013), 418 Sask.R. 114; 2013 SKQB 125, refd to. [para. 27].

R. v. R.E.M. (2008), 380 N.R. 47; 260 B.C.A.C. 40; 439 W.A.C. 40; 2008 SCC 51, refd to. [para. 28].

R. v. R.D.H. (2009), 360 N.B.R.(2d) 1; 930 A.P.R. 1; 2009 NBCA 28, refd to. [para. 28].

R. v. Marchionne (S.), [2013] O.T.C. Uned. 569; 2013 ONSC 569, refd to. [para. 29].

Counsel:

Avocats:

James Matheson, for the appellant;

Rodney Jordan, for the respondent.

This appeal was heard on January 8, 2015, before Morrison, J., of the New Brunswick Court of Queen's Bench, Trial Division, Judicial District of Fredericton, who delivered the following decision on January 30, 2015.

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