R. v. David (M.E.), (2003) 214 N.S.R.(2d) 28 (PC)

JudgeWilliams, P.C.J.
CourtProvincial Court of Nova Scotia (Canada)
Case DateApril 04, 2003
JurisdictionNova Scotia
Citations(2003), 214 N.S.R.(2d) 28 (PC);2003 NSPC 9

R. v. David (M.E.) (2003), 214 N.S.R.(2d) 28 (PC);

 671 A.P.R. 28

MLB headnote and full text

Temp. Cite: [2003] N.S.R.(2d) TBEd. MY.007

R. v. Maurice Elmar David

(2003 NSPC 9)

Indexed As: R. v. David (M.E.)

Nova Scotia Provincial Court

Williams, P.C.J.

April 4, 2003.

Summary:

The accused pled guilty to having control of a motor vehicle while having a blood-alcohol concentration above the legal limit. The accused challenged the admission of a Notice to Seek Increased Penalty tendered by the Crown on the ground that it was insufficient.

The Nova Scotia Provincial Court set aside the Notice, holding that it was invalid.

Criminal Law - Topic 5606

Punishments (sentence) - General principles - Increased punishment for prior convictions - The accused pled guilty to having control of a motor vehicle while having an excessive blood-alcohol concentration - A Notice to Seek Increased Penalty tendered by the Crown informed the accused that if he "had any previous convictions under the impaired driving provisions of the Criminal Code ... the Crown may apply ... to seek imposition of a greater punishment by reason of your previous conviction" - The Nova Scotia Provincial Court found that the Notice was invalid and set it aside - The accused was charged with violating ss. 253(a) and 253(b) of the Code and not with breaching "the impaired driving provisions" - The Notice had to identify the charge in respect of which the increased punishment would be sought and it should describe the charge in substantially the same terms as would be required in the Information - The wording of the Notice, with no reference to any Code sections, was technically improper and would tend to confuse or mislead the accused on what his previous conviction was under the Code provisions - The Notice also did not state clearly and unequivocally that the Crown would seek the greater punishment - It only said that the Crown "may" apply to seek the greater punishment.

Cases Noticed:

R. v. Collini, [1979] O.J. No. 253 (H.C.), refd to. [para. 3].

R. v. Fowler (1982), 60 N.S.R.(2d) 31; 128 A.P.R. 31; 2 C.C.C.(3d) 227 (C.A.), refd to. [para. 3].

R. v. Riley (1982), 69 C.C.C.(2d) 245 (Ont. H.C.), refd to. [para. 4].

R. v. Vorkapich, [1967] 1 C.R.N.S. 132 (Ont. Prov. Ct.), refd to. [para. 5].

R. v. Bernardo, [1994] O.J. No. 1718 (Gen. Div.), refd to. [para. 6].

R. v. Taylor, [1963] 1 C.C.C. 207 (B.C.C.A.), refd to. [para. 8].

R. v. Jonasson (1980), 5 Sask.R. 154; 56 C.C.C.(2d) 121 (C.A.), refd to. [para. 10].

R. v. Thunderblanket (1979), 2 Sask.R. 199; 5 M.V.R. 84; 1979 CarswellSask 7 (C.A.), refd to. [para. 10].

R. v. Napoleon (1987), 82 A.R. 180; 2 M.V.R.(2d) 90; 1987 CarswellAlta 298 (Q.B.), refd to. [para. 11].

Authors and Works Noticed:

Proulx, Michel, and Layton, David, Ethics and Canadian Criminal Law (2001), pp. 412 to 417 [para. 15].

Counsel:

Eric R. Woodburn, for the Crown;

Roger A. Burrill, for the defence.

This matter was heard before Williams, P.C.J., of the Nova Scotia Provincial Court, who delivered the following oral decision on April 4, 2003.

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