R. v. Dempsey (D.J.),

• Jurisdiction: New Brunswick
• Judge: Hutchinson, P.C.J.
• Neutral Citation: 2011 NBPC 14
• Citation: (2011), 369 N.B.R.(2d) 1 (PC),2011 NBPC 14,369 NBR(2d) 1,(2011), 369 NBR(2d) 1 (PC),369 N.B.R.(2d) 1
• Date: 21 December 2010
• Court: Provincial Court of New Brunswick (Canada)

R. v. Dempsey (D.J.) (2011), 369 N.B.R.(2d) 1 (PC);

    369 R.N.-B.(2e) 1; 952 A.P.R. 1

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Temp. Cite: [2011] N.B.R.(2d) TBEd. AP.001

Renvoi temp.: [2011] N.B.R.(2d) TBEd. AP.001

Her Majesty the Queen v. Donald James Dempsey

(054310-10; 2011 NBPC 14; 2011 NBCP 14)

Indexed As: R. v. Dempsey (D.J.)

Répertorié: R. v. Dempsey (D.J.)

New Brunswick Provincial Court

Hutchinson, P.C.J.

March 22, 2011.

Summary:

Résumé:

Dempsey was charged with having the care and control of a motor vehicle when his blood-alcohol level exceeded the legal limit (Criminal Code, s. 253(1)(b)). Dempsey objected to the introduction into evidence of the Certificate of Analysis on the grounds that: (1) the arresting officer had no authority to go onto a road 1,000 feet off the main highway to investigate; (2) the approved screening device was not properly calibrated; (3) the officer did not have reasonable and probable grounds to make a demand; (4) the breathalyzer test was not conducted forthwith or as soon as practicable; and (5) there was no evidence that the breath tests were administered 15 minutes apart in order to get proper results.

The New Brunswick Provincial Court held that there was no basis to reject the Certificate, and accepted the Certificate into evidence. The Certificate showed amounts well in excess of the limit prescribed by law. The court found Dempsey guilty as charged.

Criminal Law - Topic 1372

Motor vehicles - Impaired driving - Breathalyzer or blood sample - Demand - Reasonable grounds - [See Criminal Law - Topic 1374 ].

Criminal Law - Topic 1374

Motor vehicles - Impaired driving - Breathalyzer or blood sample - Evidence and certificate evidence - The accused objected to the introduction into evidence of the Certificate of Analysis - He made three specific objections to the legality of the taking of the breathalyzer tests, namely, (1) that the investigating officer did not prove that the approved screening device (ASD) was properly calibrated; (2) that reasonable grounds for the making of the demand did not exist; and (3) that the breath tests were not conducted as soon as practicable - With respect to the breathalyzer demand, the officer formed the opinion that reasonable and probable grounds existed for the making of the demand at 20:36 hours when he received a "fail" result on the ASD - A first breath sample was obtained 65 minutes later - The New Brunswick Provincial Court held that the objections were unfounded - In light of the fact that the officer had other indicia of impairment as well as a "fail" result on the ASD and that he was satisfied that the ASD was functioning properly, the officer had the requisite reasonable grounds to make a breathalyzer demand - The court was satisfied that the ASD was administered forthwith as required by the Code, and that the breathalyzer demand was made as soon as practicable, as was the carrying out of the breathalyzer tests - See paragraphs 25 to 56.

Criminal Law - Topic 1375

Motor vehicles - Impaired driving - Breathalyzer or blood sample - Demand for - [See Criminal Law - Topic 1374 ].

Criminal Law - Topic 1375

Motor vehicles - Impaired driving - Breathalyzer or blood sample - Demand for - In the case at bar, two samples of the breath of the accused were taken - Twenty-two minutes had elapsed between the taking of the two tests - The accused challenged the reception into evidence of the breathalyzer result - He argued that there was no evidence that the breath tests were administered 15 minutes apart, as there was no evidence when the first test would have concluded - The New Brunswick Provincial Court was satisfied that the requirement of s. 258(1)(c)(ii) of the Criminal Code had been complied with - It was highly improbable, given the passage of 22 minutes, that 15 minutes did not elapse between the taking of the two tests - In any event, the decision in R. v. Marcellus (1999) (N.B.C.A.) was clear that the two times noted in the certificate were at least prima facie evidence of the times when the tests were taken - See paragraphs 57 to 61.

Criminal Law - Topic 1379.2

Motor vehicles - Impaired driving - Breathalyzer - Admissibility where Charter right breached - The New Brunswick Provincial Court stated that "[t]here now exists strong appellate authority that in cases where the defense maintains that the peace officer did not have reasonable grounds to make a demand that these must be presented within the context of a Charter application, if the charge is driving or having the care and control of a motor vehicle while one's blood-alcohol level exceeded the legal limit" - The court assumed that the arguments presented in the case at bar were made pursuant to s. 8 of the Charter, where: (1) the accused had filed a Notice of Charter application invoking both ss. 8 and 9 of the Charter; (2) it was implicit in the Crown's post-trial brief that the prosecution realized the Charter arguments; and (3) unlike the jurisprudence in other provinces, the New Brunswick Court of Appeal had seemingly taken a different approach to the particular question - See paragraphs 31 to 34.

Criminal Law - Topic 1386.4

Motor vehicles - Impaired driving - Roadside screening test - Evidence and proof (incl. whether device approved, calibration records, etc.) - The New Brunswick Provincial Court set out the law applicable to the requirement that the Crown had to prove the proper functioning and calibrating of an approved screening device - See paragraphs 35 to 39.

Police - Topic 3105

Powers - Investigation - Impaired driving (incl. sobriety tests, etc.) - The accused was charged with having the care and control of a motor vehicle when his blood-alcohol level exceeded the legal limit - He had been stopped on a dirt road some 1,000 feet from the main highway - At trial, he objected to the introduction into evidence of the Certificate of Analysis on the ground, among others, that a peace officer did not have authority to carry out an investigation of possible impaired driving on private property - The New Brunswick Provincial Court held that that ground had no basis at law - "All peace officers have a common law police power to, amongst other things, keep the peace, prevent crime, and to protect life and property. This power is not restricted to any geographical area" - The officer was acting in furtherance of those basic common law powers when he made his initial decision to investigate the accused's parked vehicle - Also, there was no evidence that the investigation was not carried out on a public road - See paragraphs 17 to 24.

Police - Topic 3105

Powers - Investigation - Impaired driving (incl. sobriety tests, etc.) - The New Brunswick Provincial Court set out the two-stage or two-step investigatory process in ss. 254(2) and (3) of the Criminal Code, "intended to facilitate the detection, arrest and conviction of those committing drinking and driving offenses" - See paragraphs 26 and 27.

Police - Topic 3109

Powers - Investigation - Motor vehicles - [See first Police - Topic 3105 ].

Droit criminel - Cote 1372

Véhicules à moteur - Capacité de conduite affaiblie - Éthylomètre ou échantillon d'haleine de sang - Ordre - Motifs raisonnables - [Voir Criminal Law - Topic 1372 ].

Droit criminel - Cote 1374

Véhicules à moteur - Capacité de conduite affaiblie - Éthylomètre ou échantillon d'haleine de sang - Preuve et preuve par certificat - [Voir Criminal Law - Topic 1374 ].

Droit criminel - Cote 1375

Véhicules à moteur - Capacité de conduite affaiblie - Éthylomètre - Ordre de fournir un échantillon d'haleine ou de sang - [Voir Criminal Law - Topic 1375 ].

Droit criminel - Cote 1379.2

Véhicules à moteur - Capacité de conduite affaiblie - Éthylomètre - Recevabilité en cas de négation d'un droit garanti par la Charte - [Voir Criminal Law - Topic 1379.2 ].

Droit criminel - Cote 1386.4

Véhicules à moteur - Capacité de conduite affaiblie - Vérification routière - Preuve (y compris si l'appareil de détection est approuvé, les relevés de calibrage, etc.) - [Voir Criminal Law - Topic 1386.4 ].

Police - Cote 3105

Pouvoirs - Enquête - Capacité de conduite affaiblie (y compris tests de sobriété, etc.) - [Voir Police - Topic 3105 ].

Police - Cote 3109

Pouvoirs - Enquête - Véhicules à moteur - [Voir Police - Topic 3109 ].

Cases Noticed:

R. v. Sergalis (J.P.), [2009] O.T.C. Uned. S43; 2009 CanLII 63359 (Sup. Ct.), dist. [para. 21].

R. v. LeBlanc (L.) (2010), 359 N.B.R.(2d) 390; 929 A.P.R. 390; 2010 NBPC 22, refd to. [para. 21].

R. v. Bernshaw (N.), [1995] 1 S.C.R. 254; 176 N.R. 81; 53 B.C.A.C. 1; 87 W.A.C. 1, consd. [para. 27].

R. v. Rilling, [1976] 2 S.C.R. 183; 5 N.R. 327, appld. [para. 29].

R. v. Charette (K.) et al. (2009), 247 O.A.C. 369; 243 C.C.C.(3d) 480 (C.A.), refd to. [para. 31].

R. v. Forsythe (J.R.) (2009), 251 Man.R.(2d) 90; 478 W.A.C. 90; 250 C.C.C.(3d) 90 (C.A.), refd to. [para. 31].

R. v. Searle (J.M.) (2006), 308 N.B.R.(2d) 216; 797 A.P.R. 216; 215 C.C.C.(3d) 374 (C.A.), consd. [para. 33].

R. v. Paradisi (C.) (1998), 112 O.A.C. 310 (C.A.), consd. [para. 36].

R. v. Mastromartino (A.), [2004] O.T.C. 310 (Sup. Ct.), refd to. [para. 37].

R. v. MacDonnell (K.), [2004] O.T.C. 238 (Sup. Ct.), refd to. [para. 37].

R. v. Robichaud (B.) (2009), 350 N.B.R.(2d) 48; 903 A.P.R. 48 (T.D.), appld. [para. 39].

R. v. Censoni (L.M.), [2001] O.T.C. 948 (Sup. Ct.), refd to. [para. 43].

R. v. Shepherd (C.) (2009), 391 N.R. 132; 331 Sask.R. 306; 460 W.A.C. 306; 245 C.C.C.(3d) 137 (S.C.C.), consd. [para. 44].

R. v. Woods (J.C.), [2005] 2 S.C.R. 205; 336 N.R. 1; 195 Man.R.(2d) 131; 351 W.A.C. 131, dist. [para. 56].

R. v. Marcellus (G.W.) (1999), 214 N.B.R.(2d) 72; 547 A.P.R. 72 (C.A.), appld. [para. 59].

Statutes Noticed:

Criminal Code, R.S.C. 1985, c. C-46, sect. 254(2)(b), sect. 254(3)(a)(i), sect. 258(1)(c)(ii) [para. 13].

Counsel:

Avocats:

François Doucet, for Her Majesty the Queen;

Terrence H. Delaney, Q.C., for the accused.

This trial was heard on December 21, 2010, before Hutchinson, P.C.J., of the New Brunswick Provincial Court, Judicial District of Campbellton, who delivered the following decision, dated March 22, 2011.