R. v. Devison (J.), 2016 NSPC 43

• Judge: Ross, P.C.J.
• Court: Provincial Court of Nova Scotia (Canada)
• Case Date: June 24, 2016
• Jurisdiction: Nova Scotia
• Citations: 2016 NSPC 43;(2016), 375 N.S.R.(2d) 142 (PC)

R. v. Devison (J.) (2016), 375 N.S.R.(2d) 142 (PC);

    1182 A.P.R. 142

MLB headnote and full text

Temp. Cite: [2016] N.S.R.(2d) TBEd. JL.005

Queen v. Judith Devison

(Nos. 2844313; 2844314, 2844315; 2016 NSPC 43)

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

Nova Scotia Provincial Court

Ross, P.C.J.

June 24, 2016.

Summary:

In the context of a car/pedestrian accident on the Trans-Canada Highway, the accused was charged with: impaired driving causing bodily harm (Criminal Code, s. 255(2)); blood alcohol level over legal limit ("over 80") causing bodily harm (s. 255(2.1)), and failure to stop at scene of accident (s. 252).

The Nova Scotia Provincial Court found the accused guilty of impaired driving causing bodily harm.

Criminal Law - Topic 1357

Offences against person and reputation - Motor vehicles - Failing to stop or remain at accident scene - Mens rea or intention - [See Criminal Law - Topic 1362.1 ].

Criminal Law - Topic 1362.1

Motor vehicles - Impaired driving - Impaired driving causing injury or death - In the context of a car/pedestrian accident, the accused was charged with: impaired driving causing bodily harm (Criminal Code, s. 255(2)); blood alcohol level over legal limit ("over 80") causing bodily harm (s. 255(2.1)), and failure to stop at scene of accident (s. 252) - The accused, who chose not to testify, argued that the evidence did not establish that the time of the collision was within two hours of the first breath sample, and thus that the legal "presumption of identity" in s. 258(1)(c) did not apply; that the evidence did not prove the necessary link between the accused's impairment and the bodily harm; that a blown rear tire might have caused the vehicle to enter into a spin, resulting in the collision; and that she was unaware she had struck the pedestrian - The Nova Scotia Provincial Court found the accused guilty on the s. 255(2) charge - "Upon consideration of all the evidence [circumstantial evidence, measurement of blood alcohol concentrations from the accused, and an accident reconstruction report] I conclude that [the accused] lost control of her vehicle because her ability to operate it safely was impaired by alcohol. This loss of control resulted in the spin-out and collision with [the pedestrian]. I am convinced beyond a reasonable doubt that the accused was significantly impaired and that this impairment was a major contributing cause of this faulty driving." - The Crown could not avail itself of the presumption in s. 258(1)(c), and thus was unable to prove the "over 80" element of the s. 255(2.1) offence - The Court had some doubt about the accused's intent when she left the scene - It was unlikely but still reasonably possible that she was unaware she had struck the pedestrian, given her state of substantial intoxication and the potentially dizzying effect of the spin and collision - See paragraphs 158 to 160.

Criminal Law - Topic 1403

Motor vehicles - Impaired driving causing death or bodily harm - Where blood-alcohol content exceeds legal limit - [See Criminal Law - Topic 1362.1 ].

Counsel:

Darcy MacPherson, Crown Attorney;

T.J. MacKeough and Nash Brogan, defence.

This trial was heard on May 3-4, 2016, in Sydney, Nova Scotia, before Ross, P.C.J., of the Nova Scotia Provincial Court, who delivered the following reasons and judgment, dated June 24, 2016.