R. v. Darrah (T.E.), 2016 NSSC 187

• Judge: Moir, J.
• Court: Supreme Court of Nova Scotia (Canada)
• Case Date: September 23, 2015
• Jurisdiction: Nova Scotia
• Citations: 2016 NSSC 187;(2016), 375 N.S.R.(2d) 317 (SC)

R. v. Darrah (T.E.) (2016), 375 N.S.R.(2d) 317 (SC);

    1182 A.P.R. 317

MLB headnote and full text

Temp. Cite: [2016] N.S.R.(2d) TBEd. JL.023

Her Majesty the Queen (appellant) v. Thomas Earl Darrah (respondent)

(Hfx No. 437115; 2016 NSSC 187)

Indexed As: R. v. Darrah (T.E.)

Nova Scotia Supreme Court

Moir, J.

July 20, 2016.

Summary:

The accused was charged with impaired driving and driving a motor vehicle while having a blood-alcohol level exceeding the legal limit. A police officer saw the accused sitting on his inoperable ATV close to a trail entrance that intersected the rural road close to the accused's home. The accused had pushed his ATV for two kilometres and was sitting on the ATV taking a rest break. The trial judge acquitted the accused on both counts, finding that the accused rebutted the presumption of "care and control" in s. 258(1)(a) of the Criminal Code, as he did not occupy the driver's seat with the intention of setting the ATV in motion and there was no risk of danger to public safety. The trial judge also held that the breathalyzer samples taken at the police detachment were not taken "as soon as practicable" as required by s. 258(1)(c). The Crown appealed.

The Nova Scotia Supreme Court dismissed the appeal.

Criminal Law - Topic 1368

Motor vehicles - Impaired driving - Care or control or operating - What constitutes - The accused was charged with impaired driving and driving a motor vehicle while having a blood-alcohol level exceeding the legal limit - A police officer saw the accused sitting on his inoperable ATV close to a trail entrance that intersected the rural road close to the accused's home - The trial judge accepted the accused's evidence that he had pushed his ATV for two kilometres and was sitting on the ATV taking a rest break - The trial judge acquitted the accused on both counts, finding that the accused rebutted the presumption of "care and control" in s. 258(1)(a) of the Criminal Code, as he did not occupy the driver's seat with the intention of setting the ATV in motion and there was no realistic risk of danger to public safety - The trial judge also held that subsequent breathalyzer samples were not taken "as soon as practicable" as required by s. 258(1)(c) - The Nova Scotia Supreme Court dismissed the Crown's appeal - The trial judge did not err in finding that the accused rebutted the presumption that he occupied the driver's seat with the intention of putting the ATV in motion or in finding that pushing the ATV on the trail, with the intention of pushing it on the rural road for a short distance to the accused's home in the middle of the night, did not create the realistic risk of danger that the offence was meant to catch - The trial judge also did not err in finding that given several periods of unreasonable delay, the breath samples were not taken "as soon as practicable".

Criminal Law - Topic 1374

Motor vehicles - Impaired driving - Breathalyzer or blood sample - Evidence and certificate evidence (incl. evidence tending to show) - [See Criminal Law - Topic 1368 ].

Counsel:

Richard Miller, for the appellant;

Mark T. Knox, Q.C., for the respondent.

This appeal was heard on September 23, 2015, and February 12, 2016, at Halifax, N.S., before Moir, J., of the Nova Scotia Supreme Court, who delivered the following judgment on July 20, 2016.