R. v. Green (V.E.), (1991) 108 N.S.R.(2d) 181 (ProvCt)

• Judge: Batiot, P.C.J.
• Court: Provincial Court of Nova Scotia (Canada)
• Case Date: June 17, 1991
• Jurisdiction: Nova Scotia
• Citations: (1991), 108 N.S.R.(2d) 181 (ProvCt)

R. v. Green (V.E.) (1991), 108 N.S.R.(2d) 181 (ProvCt);

  294 A.P.R. 181

MLB headnote and full text

Her Majesty The Queen v. Vincent Eric Green

Indexed As: R. v. Green (V.E.)

Nova Scotia Provincial Court

Batiot, P.C.J.

August 16, 1991.

Summary:

The accused was charged with impaired driving causing bodily harm, contrary to s. 255(2) of the Criminal Code.

The Nova Scotia Provincial Court found the accused guilty.

Civil Rights - Topic 3126

Trials - Due process, fundamental justice and fair hearings - Criminal and quasi-criminal proceedings - Fair hearing - What constitutes - An accused was charged with impaired driving causing bodily harm - At the scene, police recovered a one-half full bottle of liquor that was allegedly in the accused's vehicle - The bottle was stored as an exhibit, but mistakenly destroyed before trial - The accused submitted he was deprived of relevant evidence, thereby violating his Charter right to make full answer and defence - The Nova Scotia Provincial Court stated that the accused was not denied fundamental justice or a fair hear­ing (ss. 7, 11(d)) - See paragraphs 40 to 52.

Civil Rights - Topic 3133

Trials - Due process, fundamental justice and fair hearings - Criminal and quasi-criminal proceedings - Right of accused to make full answer and defence - [See Civil Rights - Topic 3126 ].

Civil Rights - Topic 4608

Right to counsel - Right to be advised of - An accused claimed he was not properly advised of his right to counsel, the right to legal aid, that he did not validly waive his right to counsel and that he was not pro­vided with sufficient assistance in exercis­ing his rights - The Nova Scotia Provin­cial Court stated that the accused's right to counsel was not denied - The accused was coherent and in full control when he ac­knowledged that he understood his right to counsel, did not want legal aid and stated that he would call a lawyer later - See paragraphs 53 to 60.

Civil Rights - Topic 4609

Right to counsel - Duty to explain right to counsel - Legal aid - [See Civil Rights - Topic 4608 ].

Civil Rights - Topic 4612

Right to counsel - Waiver of - [See Civil Rights - Topic 4608 ].

Criminal Law - Topic 128

Rights of accused - Right to make full answer and defence - [See Civil Rights - Topic 3126 ].

Civil Rights - Topic 1372

Motor vehicles - Impaired driving - Breathalyzer demand - Reasonable grounds - The accused motor vehicle driver unexplainedly drifted across the center line and struck an oncoming vehicle, injuring the driver - The attending R.C.M.P. officer noted the accused's breath smelled of alcohol, his bloodshot eyes, slurred speech and unsteadiness on his feet - The accused claimed the officer lacked reasonable and probable grounds to make a breathalyzer demand, because the ac­cused's condition was consistent with his injuries and lack of sleep - The Nova Scotia Provincial Court stated that the officer had reasonable and probable grounds to make the demand - Alterna­tively, once the accused submitted to the demand the evidence was admissible absent breach of a Charter right - See paragraphs 22 to 25.

Criminal Law - Topic 1374

Motor vehicles - Impaired driving - Breathalyzer - Certificate evidence - Notice - An accused claimed a notice of certificate of analysis was inadequate because he did not recall receiving it and the notice did not state the purpose for which it was served (i.e. the specific charge) - The accused received the notice several months before the preliminary hearing and subsequent trial - The Nova Scotia Provincial Court held that the accused had sufficient notice - The Crimi­nal Code did not require specification of the particular charge - See paragraphs 30 to 34.

Criminal Law - Topic 1374

Motor vehicles - Impaired driving - Breathalyzer - Certificate evidence - Approved instrument - A breathalyzer technician testified that he used a "Bor­genstein Breathalyzer 900A" - Regulations under the Criminal Code listed one of the approved breathalyzer machines as a "Breathalyzer R, model 900A" - The Nova Scotia Provincial Court stated that there was no doubt that the technician used an approved machine - See paragraphs 37 to 39.

Criminal Law - Topic 1375

Motor vehicles - Impaired driving - Breathalyzer demand - Whether made "forthwith or as soon as practicable" - An accused claimed a breathalyzer demand was not made "forthwith" as required by s. 254(3) of the Criminal Code - A 20 min­ute delay from forming an opinion of impairment until a demand was made resulted from the officer's concern with the accused's injuries - The accused was taken to the hospital and examined before a demand was made - The Nova Scotia Provincial Court held that the demand was made "forthwith or as soon as practicable" - See paragraphs 26 to 29.

Criminal Law - Topic 1395

Motor vehicles - Impaired driving causing death or bodily harm - Evidence and proof - A medical expert testified that based on the accused's blood-alcohol level when a breathalyzer test was administered, his blood-alcohol content at the time of an earlier accident would have been between .115 and .135 - The accused drifted across the centre line (presumably fell asleep) and struck an oncoming vehicle, injuring its driver - The Nova Scotia Provincial Court stated that the accident was caused by the accused's impaired ability to drive, aggra­vated by his fatigue - The accused's im­pairment was a contributing factor outside the de minimis range - See paragraphs 61 to 66.

Criminal Law - Topic 5573

Evidence - Witnesses - Exhibits - De­struction of - [See Civil Rights - Topic 3126 ].

Cases Noticed:

R. v. Rilling (1975), 5 N.R. 327; 31 C.R.N.S. 142; 24 C.C.C.(2d) 81 (S.C.C.), appld. [para. 24].

R. v. MacGillivray (1971), 4 C.C.C.(2d) 244 (Ont. C.A.), refd to. [para. 29].

R. v. Nickerson (1984), 64 N.S.R.(2d) 164; 143 A.P.R. 164; 27 M.V.R. 124 (C.A.), refd to. [para. 32].

R. v. Janes (1988), 7 M.V.R.(2d) 41, refd to. [para. 39].

R. v. Kelly (1987), 67 Nfld. & P.E.I.R. 91; 206 A.P.R. 91; 7 M.V.R.(2d) 121 (P.E.I.C.A.), refd to. [para. 39].

R. v. Sharon (1987), 7 M.V.R.(2d) 105 (P.E.I.C.A.), refd to. [para. 39].

R. v. Bourget (1987), 54 Sask.R. 178; 35 C.C.C.(3d) 371 (C.A.), refd to. [para. 47].

R. v. Desmond (1988), 88 N.S.R.(2d) 175; 225 A.P.R. 175 (T.D.), dist. [para. 48].

R. v. Heikel et al. (No. 3) (1990), 110 A.R. 161 (Q.B.), dist. [para. 49].

Potma v. The Queen (1983), 2 C.C.C.(3d) 383 (Ont. C.A.), refd to. [para. 50].

R. v. Brydges, [1990] 1 S.C.R. 190; 103 N.R. 282; 104 A.R. 124; 53 C.C.C.(3d) 330, refd to. [para. 53].

R. v. Collins, [1987] 1 S.C.R. 265; 74 N.R. 276; 56 C.R.(3d) 193; [1987] 3 W.W.R. 699; 38 D.L.R.(4th) 508; 33 C.C.C.(3d) 1, refd to. [para. 60].

R. v. Fraser (1991), 102 N.S.R.(2d) 313; 279 A.P.R. 313 (C.A.), refd to. [para. 60].

R. v. Smithers (1977), 15 N.R. 287; 34 C.C.C.(2d) 427 (S.C.C.) reds to. [para. 64]

R. v. Larocque (1988), 23 O.A.C. 362; 5 M.V.R.(2d) 221 (C.A.), refd to. [para. 65].

R. v. Halkett (1988), 73 Sask.R. 241; 11 M.V.R.(2d) 109 (C.A.), refd to. [para. 65].

R. v. Pinske (1988), 6 M.V.R.(2d) 119 (B.C.C.A.), affd. [1989] 2 S.C.R. 979; 100 N.R. 399, refd to. [para. 65].

R. v. D.F. (1989), 100 A.R. 122; 18 M.V.R.(2d) 62; 52 C.C.C.(3d) 357 (C.A.), refd to. [para. 65].

Statutes Noticed:

Canadian Charter of Rights and Freedoms, 1982, sect. 7, sect. 11(d), sect. 24.

Criminal Code, R.S.C. 1985, c. C-46, sect. 254(3) [para. 26]; sect. 255(2) [para. 1]; sect. 258(1)(g) [para. 28]; sect. 258(7) [para. 31].

Authors and Works Noticed:

Rogers, Greg, The Test of Causation in Criminal Driving Cases (1991), 3.2 J.M.V.L. 137, generally [para. 65].

Counsel:

Tony Brown, for the Crown;

Mark Dempsey, for the accused.

This case was heard on April 24 and June 17, 1991, at Bridgewater, N.S., before Batiot, P.C.J., of the Nova Scotia Provincial Court, who delivered the following judgment on August 16, 1991.