R. v. Comeau (K.P.), (2009) 282 N.S.R.(2d) 255 (PC)

• Judge: Tufts, P.C.J.
• Court: Provincial Court of Nova Scotia (Canada)
• Case Date: June 03, 2009
• Jurisdiction: Nova Scotia
• Citations: (2009), 282 N.S.R.(2d) 255 (PC);2009 NSPC 48

R. v. Comeau (K.P.) (2009), 282 N.S.R.(2d) 255 (PC);

    895 A.P.R. 255

MLB headnote and full text

Temp. Cite: [2009] N.S.R.(2d) TBEd. OC.024

Her Majesty the Queen v. Kevin Peter Comeau

(1927626; 1927627; 2009 NSPC 48)

Indexed As: R. v. Comeau (K.P.)

Nova Scotia Provincial Court

Tufts, P.C.J.

June 3, 2009.

Summary:

The accused was charged with failing to comply with a demand to provide samples of his breath suitable for analysis.

The Nova Scotia Provincial Court found the accused guilty.

Criminal Law - Topic 1377

Motor vehicles - Impaired driving - Breathalyzer or blood sample - Refusal or failure to provide sample - The accused made eight attempts to provide a breath sample - According to the breath technician, on one occasion he blew so hard that the sample was not able to be analyzed - On other occasions, he blew intermittently or he hardly blew at all - The accused was charged with failing to comply with a demand to provide samples of his breath suitable for analysis - The accused argued that the Crown failed to prove beyond a reasonable doubt that he intentionally failed to comply with the demand to provide breath samples - Alternatively, he argued that he had a reasonable excuse for not complying - He argued that he did his best and that it was not for the defence to explain why the instrument failed to provide a reading - He said the combination of his anxiety and his asthma raised a reasonable doubt about any intention by him to fail to provide a sample - He also argued that given his low level of alcohol consumption he had no motive not to provide a sample and that his request to provide a blood sample raised a doubt about his intention - The Nova Scotia Provincial Court found the accused guilty - There was no air of reality to the assertion that the failure was the result of some possible malfunction with the instrument such that the Crown would be obliged to establish that the instrument was working properly - The court found that the accused was capable of providing a sample and that he intended to fail to provide such a sample - He had no reasonable excuse - His testimony to the contrary was rejected.

Criminal Law - Topic 1378

Motor vehicles - Impaired driving - Breathalyzer or blood sample - Excuse for refusal to provide - [See Criminal Law - Topic 1377 ].

Cases Noticed:

R. v. Dolphin (J.D.) (2004), 189 Man.R.(2d) 178; 2004 MBQB 252, refd to. [para. 19, footnote 1].

R. v. Pringle (D.), [2001] B.C.T.C. 1714; 2001 BCSC 1714, refd to. [para. 19, footnote 2].

R. v. Sheehan, [2003] N.J. No. 57 (Prov. Ct.), refd to. [para. 19, footnote 2].

R. v. Barkhouse (P.) (2008), 260 N.S.R.(2d) 394; 831 A.P.R. 394; 2008 NSPC 2, refd to. [para. 19, footnote 2].

R. v. Barn, [1985] N.S.J. No. 215 (C.A.), refd to. [para. 19, footnote 2].

R. v. Peck (B.) (1994), 128 N.S.R.(2d) 206; 359 A.P.R. 206 (C.A.), refd to. [para. 22, footnote 3].

R. v. Lewko (G.L.) (2002), 227 Sask.R. 77; 287 W.A.C. 77; 2002 SKCA 121, refd to. [para. 22, footnote 3].

R. v. Robinson (D.), [1996] 1 S.C.R. 683; 194 N.R. 181; 72 B.C.A.C. 161; 119 W.A.C. 161, refd to. [para. 23, footnote 5].

R. v. Assaf, [1987] N.S.J. No. 482 (Prov. Ct.), refd to. [para. 23, footnote 5].

R. v. Brown (R.), [2004] O.T.C. 967 (Sup. Ct.), refd to. [para. 24, footnote 6].

R. v. Rosario, [2007] B.C.J. No. 2815, refd to. [para. 24, footnote 6].

R. v. Lewis, [1979] 2 S.C.R. 821; 27 N.R. 451, refd to. [para. 28, footnote 7].

R. v. Haller (T.), [2006] O.T.C. 1175 (Sup. Ct.), refd to. [para. 28, footnote 7].

R. v. Levesque, [1985] B.C.J. No. 1949 (C.A.), refd to. [para. 31, footnote 9].

R. v. Roberts, [1997] B.C.J. No. 2488 (S.C.), refd to. [para. 31, footnote 9].

R. v. Gutierrez, [2009] O.J. No. 3659, refd to. [para. 31, footnote 9].

R. v. Mowery (M.G.W.) (2008), 328 Sask.R. 1; 2008 SKPC 27, refd to. [para. 33, footnote 10].

Counsel:

William Watts, for the Crown;

Philip J. Star, Q.C., for the defence.

This matter was heard on June 3, 2009, at Kentville, N.S., before Tufts, P.C.J., of the Nova Scotia Provincial Court, who delivered the following decision orally on June 3, 2009, and in writing on October 15, 2009.