R. v. Farrell (D.M.), 2009 NSCA 3

• Jurisdiction: Nova Scotia
• Judge: Fichaud,Murphy,Roscoe
• Neutral Citation: 2009 NSCA 3
• Citation: 2009 NSCA 3,(2009), 273 N.S.R.(2d) 229 (CA),273 NSR(2d) 229,(2009), 273 NSR(2d) 229 (CA),273 N.S.R.(2d) 229
• Date: 25 November 2008
• Court: Court of Appeal of Nova Scotia (Canada)

R. v. Farrell (D.M.) (2009), 273 N.S.R.(2d) 229 (CA);

    872 A.P.R. 229

MLB headnote and full text

Temp. Cite: [2009] N.S.R.(2d) TBEd. JA.039

Della Marie Farrell (appellant) v. Her Majesty The Queen (respondent)

(CAC 296075; 2009 NSCA 3)

Indexed As: R. v. Farrell (D.M.)

Nova Scotia Court of Appeal

Roscoe and Fichaud, JJ.A., and Murphy, J.(ad hoc)

January 15, 2009.

Summary:

Farrell was charged with impaired driving.

The Nova Scotia Provincial Court, in a decision not reported in this series of reports, acquitted Farrell. The Crown appealed.

The Nova Scotia Supreme Court, in a decision reported at (2008), 264 N.S.R.(2d) 242; 847 A.P.R. 242, allowed the appeal, ordering a new trial. Farrell appealed.

The Nova Scotia Court of Appeal dismissed the appeal. The matter was remitted to the Provincial Court for continuation of the trial in a manner consistent with these reasons.

Civil Rights - Topic 8368

Canadian Charter of Rights and Freedoms - Denial of rights - Remedies - Exclusion of evidence - Farrell's vehicle went off the road, trapping her inside - Persons indicated to the officer who attended that they thought alcohol was involved - The officer smelled alcohol on Farrell's breath - The officer accompanied Farrell by ambulance to a hospital where he made a blood sample demand - Farrell was charged with impaired driving - The trial court found that the officer, in deciding shortly after he arrived on the accident scene that a blood sample, rather than a breath sample, was warranted, lacked reasonable and probable grounds to make the blood sample demand - The court excluded the evidence of the blood analysis and acquitted Farrell - The Summary Conviction Appeal Court allowed the Crown's appeal, ordering a new trial - Farrell appealed - The Nova Scotia Court of Appeal dismissed the appeal - Having determined that the trial judge's conclusion that the officer lacked reasonable and probable grounds to demand the blood sample should be restored, the court considered the admissibility of the evidence - Because Farrell had agreed to provide a blood sample, it was logical to assume that she would have provided a breath sample - Therefore, the evidence of the blood analysis was probably discoverable in any event - Its admission would not offend against trial fairness - There was no bad faith - The breach was founded in the officer's mistaken belief in a time limit for obtaining a sample - Further, there was a public interest in having a determination on the merits - The trial judge erred in law in failing to consider the nature of the breach and the public interest - Admission of the evidence of the blood analysis would not bring the administration of justice into disrepute - It should have been admitted - The matter was remitted to the Provincial Court for continuation of the trial in a manner consistent with this court's reasons - See paragraphs 22 to 39.

Criminal Law - Topic 1375

Offences against person and reputation - Motor vehicles - Impaired driving - Breathalyzer or blood sample - Demand for - Farrell's vehicle went off the road, trapping her inside - Persons indicated to the officer who attended that they thought alcohol was involved - The officer smelled alcohol on Farrell's breath - The officer accompanied Farrell by ambulance to a hospital where he made a blood sample demand - Farrell was charged with impaired driving - The trial court found that the officer, in deciding shortly after he arrived on the accident scene that a blood sample, rather than a breath sample, was warranted, lacked reasonable and probable grounds to make the blood sample demand - The court excluded the evidence of the blood sample and acquitted Farrell - The Summary Conviction Appeal Court allowed the Crown's appeal, finding that the trial judge's focus on the fact that the officer made up his mind "early on" was wrong - A new trial was ordered - Farrell appealed - The Nova Scotia Court of Appeal held that the Summary Conviction Appeal Court judge erred in law in failing to apply the proper appellate standard of review - He assessed the evidence and made his own findings of fact, effectively retrying the case on the transcript of evidence - He did not determine whether the evidence reasonably supported the trial judge's conclusions - The trial judge's finding that the officer never considered the possibility of a breath sample was reasonable and supported by the evidence - The trial judge considered both the officer's thinking at the time of the accident and again at the hospital when the demand was made - Therefore, the trial judge's conclusion that the officer lacked reasonable and probable grounds to demand the blood sample should be restored - The matter was remitted to the Provincial Court for continuation of the trial - See paragraphs 9 to 21.

Criminal Law - Topic 7463

Summary conviction proceedings - Appeals - General - Scope of appeal - [See Criminal Law - Topic 1375].

Criminal Law - Topic 7652

Summary conviction proceedings - Appeals - Grounds - Error of law - [See Civil Rights - Topic 8368].

Cases Noticed:

R. v. R.H.L. (2008), 270 N.S.R.(2d) 123; 865 A.P.R. 123; 2008 NSCA 100, refd to. [para. 9].

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, refd to. [para. 11].

R. v. Nickerson (W.S.) (1999), 178 N.S.R.(2d) 189; 549 A.P.R. 189 (C.A.), refd to. [para. 13].

R. v. MacEachern (S.B.) (2007), 255 N.S.R.(2d) 180; 814 A.P.R. 180; 2007 NSCA 69, refd to. [para. 25].

R. v. Collins, [1987] 1 S.C.R. 265; 74 N.R. 276, refd to. [para. 27].

R. v. Knox (W.), [1996] 3 S.C.R. 199; 202 N.R. 228, refd to. [para. 28].

R. v. Brown (G.J.) (1991), 107 N.S.R.(2d) 349; 290 A.P.R. 349 (C.A.), refd to. [para. 28].

R. v. Green (1990), 100 N.S.R.(2d) 82; 272 A.P.R. 82 (C.A.), affd. [1992] 1 S.C.R. 614; 132 N.R. 234; 112 N.S.R.(2d) 26; 307 A.P.R. 26, refd to. [para. 30].

R. v. Pohoretsky, [1987] 1 S.C.R. 945; 75 N.R. 1; 47 Man.R.(2d) 295, refd to. [para. 33].

R. v. Dersch (W.W.), [1993] 3 S.C.R. 768; 158 N.R. 375; 33 B.C.A.C. 269; 54 W.A.C. 269, refd to. [para. 33].

R. v. Dyment, [1988] 2 S.C.R. 417; 89 N.R. 249; 73 Nfld. & P.E.I.R. 13; 229 A.P.R. 13, refd to. [para. 33].

R. v. Hylkema (1985), 70 N.S.R.(2d) 368; 166 A.P.R. 368 (C.A.), refd to. [para. 33].

R. v. Baccardax (1986), 75 N.S.R.(2d) 154; 186 A.P.R. 154 (C.A.), refd to. [para. 33].

Counsel:

Stanley W. MacDonald, Q.C., and Trevor McQuigan, articled clerk, for the appellant;

William D. Delaney, for the respondent.

This appeal was heard at Halifax, Nova Scotia, on November 25, 2008, by Roscoe and Fichaud, JJ.A., and Murphy, J.(ad hoc), of the Nova Scotia Court of Appeal. On January 15, 2009, Roscoe, J.A., delivered the following reasons for judgment for the court.