R. v. Carlson (R.J.), (1995) 142 N.S.R.(2d) 248 (CA)

• Judge: Roscoe, Pugsley and Bateman, JJ.A.
• Court: Court of Appeal of Nova Scotia (Canada)
• Case Date: May 26, 1995
• Jurisdiction: Nova Scotia
• Citations: (1995), 142 N.S.R.(2d) 248 (CA)

R. v. Carlson (R.J.) (1995), 142 N.S.R.(2d) 248 (CA);

  407 A.P.R. 248

MLB headnote and full text

Ronald Joseph Carlson (appellant) v. Her Majesty The Queen (respondent)

(C.A.C. No. 113892)

Indexed As: R. v. Carlson (R.J.)

Nova Scotia Court of Appeal

Roscoe, Pugsley and Bateman, JJ.A.

June 5, 1995.

Summary:

Carlson was convicted in Provincial Court of refusing a breathalyzer demand, contrary to the Criminal Code, s. 254(5). He ap­pealed.

The Summary Conviction Appeal Court judge, in a decision not reported in this series of reports, dismissed the appeal. Carl­son sought leave to appeal.

The Nova Scotia Court of Appeal granted leave to appeal however, dismissed the appeal.

Civil Rights - Topic 3126

Trials - Due process - Fundamental jus­tice and fair hearings - Criminal proceed­ings - Fair hearing - What constitutes - Carlson was convicted of refusing a breathalyzer demand, contrary to the Criminal Code, s. 254(5) - The Summary Conviction Appeal Court judge affirmed the conviction - Carlson sought leave to appeal arguing, inter alia, that "(1) the length of time taken to try the case, (2) the violation of the trial judge's order for exclusion of witnesses, (3) a conflict in the testimony of the two police officers, and (4) the variance between the date in the information and the Crown's evidence, adversely affected [his] right to a fair hearing in accordance with the principles of fundamental justice" - The Nova Scotia Court of Appeal reviewed the evidence and dismissed the appeal - See paragraphs 19 to 23.

Courts - Topic 583

Judges - Duties - Re reasons for decisions - [See Criminal Law - Topic 4684 ].

Criminal Law - Topic 1372

Motor vehicles - Impaired driving - Breathalyzer - Demand - Reasonable grounds - Carlson was convicted of refus­ing a breathalyzer demand, contrary to the Criminal Code, s. 254(5) - The Summary Conviction Appeal Court judge affirmed the conviction - Carlson sought leave to appeal arguing, inter alia, that the Sum­mary Conviction Appeal Court judge erred in concluding that the police officer had reasonable and probable grounds to make a breathalyzer demand - The Nova Scotia Court of Appeal dismissed the appeal where the officer observed very erratic high speed driving on slippery streets - More­over, the court opined that the suffi­ciency of the evidence raised by this ground of appeal was "a question of fact, and there­fore this court should not inter­fere with the decision of the Summary Convic­tion Appeal Court" - See paragraph 11.

Criminal Law - Topic 4684

Procedure - Judgments and reasons for judgment - Sufficiency of - Carlson was convicted of refusing a breathalyzer demand - The Summary Convic­tion Appeal Court judge affirmed the convic­tion - Carlson sought leave to appeal arguing, inter alia, that the Sum­mary Con­viction Appeal Court judge erred in up­holding the trial judge's decision where the trial judge did not ad­dress or resolve a conflict in two Crown wit­nesses' testimony prior to ren­dering his decision - The Nova Scotia Court of Appeal dismissed the appeal stating that it was not necessary for the trial judge to explain the reason speci­fic evi­dence was accepted and it was not an "error of law for the Sum­mary Convic­tion Appeal Court judge to have reviewed the evidence and have found ... that there was evidence support­ing the finding of fact by the trial judge" - See paragraphs 12 to 15.

Criminal Law - Topic 4731

Procedure - Information or indictment, charge or count - Indictable offences - Form and content - Date and description of offence - Carlson was convicted of refus­ing a breathalyzer demand, contrary to the Criminal Code, s. 254(5) - The Sum­mary Conviction Appeal Court judge affirmed the conviction - Carlson sought leave to appeal arguing, inter alia, that the "trial judge erred in law by failing to address whether the date of the offence was an essential element of the offence" - Particularly, the information alleged that the offence occurred "on or about the 9th day of March, 1993" - However, the evidence indicated that the offence occurred on March 8, 1993 - The Nova Scotia Court of Appeal dismissed the appeal where the time of the offence was not crucial to the defence or an essential element of the offence - See paragraphs 15 to 18.

Criminal Law - Topic 4860

Appeals - Indictable offences - Grounds of appeal - Question of law or question of law alone - Carlson was convicted of refusing a breathalyzer demand, contrary to the Criminal Code, s. 254(5) - The Sum­mary Conviction Appeal Court judge affirmed the conviction - Carlson sought leave to appeal - The Nova Scotia Court of Appeal granted leave to appeal stating that the appeal was restricted to a question of law pursuant to s. 839(1) of the Crimi­nal Code - "The error of law necessary to ground jurisdic­tion must be that of the Summary Convic­tion Appeal Court, not the trial judge" - The court reviewed the alleged errors of law and dismissed the appeal.

Cases Noticed:

R. v. Emery (1981), 61 C.C.C.(2d) 84 (B.C.C.A.), refd to. [para. 10].

R. v. MacLennan (J.W.) (1994), 133 N.S.R.(2d) 196; 380 A.P.R. 196 (S.C.), revsd. (1995), 138 N.S.R.(2d) 369; 394 A.P.R. 369 (C.A.), dist. [para. 11].

R. v. Waite, [1965] 1 C.C.C. 301 (N.B.C.A.), refd to. [para. 11].

R. v. Kent (H.M.) (1994), 171 N.R. 231; 134 N.S.R.(2d) 81; 383 A.P.R. 81; 92 C.C.C.(3d) 344, refd to. [para. 11].

R. v. Burns (R.H.), [1994] 1 S.C.R. 656; 165 N.R. 374; 42 B.C.A.C. 161; 67 W.A.C. 161; 89 C.C.C.(3d) 193, consd. [para. 13].

R. v. C.P. (1992), 109 N.S.R.(2d) 81; 297 A.P.R. 81 (C.A.), refd to. [para. 15].

R. v. G.B. et al. (No. 2), [1990] 2 S.C.R. 30; 111 N.R. 31; 86 Sask.R. 111; 56 C.C.C.(3d) 200; 77 C.R.(3d) 347, consd. [para. 16].

R. v. Ryan and Charbonneau (1985), 12 O.A.C. 172; 23 C.C.C.(3d) 1 (C.A.), refd to. [para. 16].

R. v. Fox (1986), 24 C.C.C.(3d) 366 (B.C.C.A.), refd to. [para. 16].

R. v. Greene (1962), 133 C.C.C. 294 (Ont. C.A.), refd to. [para. 17].

Statutes Noticed:

Canadian Charter of Rights and Freedoms, 1982, sect. 7, sect. 11(b), sect. 11(d), sect. 24 [para. 19].

Criminal Code, R.S.C. 1985, c. C-46, sect. 254(5), sect. 839 [para. 1].

Counsel:

Darlene MacRury, for the appellant;

Kenneth W.F. Fiske, Q.C., for the respon­dent.

This appeal was heard on May 26, 1995, before Roscoe, Pugsley and Bateman, JJ.A., of the Nova Scotia Court of Appeal. Roscoe, J.A., delivered the following judgment for the court on June 5, 1995.