R. v. Hardie (T.L.), 2013 NSPC 101

• Judge: Williams, P.C.J.
• Court: Provincial Court of Nova Scotia (Canada)
• Case Date: September 10, 2013
• Jurisdiction: Nova Scotia
• Citations: 2013 NSPC 101;(2013), 337 N.S.R.(2d) 253 (PC)

R. v. Hardie (T.L.) (2013), 337 N.S.R.(2d) 253 (PC);

    1067 A.P.R. 253

MLB headnote and full text

Temp. Cite: [2013] N.S.R.(2d) TBEd. NO.011

Her Majesty the Queen v. Trenna Lee Hardie

(2348408; 2348409; 2013 NSPC 101)

Indexed As: R. v. Hardie (T.L.)

Nova Scotia Provincial Court

Williams, P.C.J.

November 1, 2013.

Summary:

The accused was charged with impaired driving and failing the breathalyzer. She alleged that the police violated her s. 10(b) Charter right to counsel of choice. Included in that violation was that the police did not advise her, on her arrest and detention, that she could consult immediately with duty counsel and free of charge.

The Nova Scotia Provincial Court found that there had been a breach of the accused's s. 10(b) right to counsel. The court excluded the Certificate of a Qualified Technician under s. 24(2) of the Charter and found the accused not guilty of the breathalyzer charge. The accused was found guilty of the impaired driving charge.

Civil Rights - Topic 4602

Right to counsel - General - Denial of - Evidence taken inadmissible - [See Civil Rights - Topic 4617.1 ].

Civil Rights - Topic 4604

Right to counsel - General - Denial of or interference with - What constitutes - [See Civil Rights - Topic 4617.1 ].

Civil Rights - Topic 4609

Right to counsel - General - Duty to notify accused of or explain right to counsel - [See Civil Rights - Topic 4617.1 ].

Civil Rights - Topic 4610

Right to counsel - General - Impaired driving - [See Civil Rights - Topic 4617.1 ].

Civil Rights - Topic 4617.1

Right to counsel - General - Notice of - Sufficiency of - Cst. Verner arrested Hardie for impaired driving and read her right to counsel from a card - At the police station, Cst. Verner allowed Hardie to use her own cell phone to call her lawyer of choice and saw her making several calls - Five minutes later, Cst. Verner noticed that she was not speaking to anyone - Upon inquiry, Hardie informed Cst. Verner that she could not get her lawyers but left messages for return calls - Hardie would not give any particulars of her counsel or her calls to her lawyer - Cst. Verner called duty counsel who telephoned and spoke with Hardie - Before she spoke to duty counsel, Hardie kept restating that she wanted to speak to her own lawyer - After speaking with duty counsel, Hardie, upon demand, provided breath samples - The Nova Scotia Provincial Court held that the police failed in their informational obligations under s. 10(b) of the Charter where, on the card as read, there was neither any mention of duty counsel services that were available and free of charge and which immediately would provide free preliminary legal advice, nor any information on how to access that service or Legal Aid - A telephone number was not provided for those services nor was Hardie informed that she would have access to a telephone when at the police station in order to exercise her right to counsel - Cst. Verner calling duty counsel without a request did not salvage her initial duty to provide Hardie with the proper information - On Cst. Verner's failure to provide the full informational obligations, the s. 10(b) breach was complete and the issues of whether Hardie had reasonable opportunity to speak to the counsel of her choice or whether she was diligent in exercising that right did not arise for consideration - The court concluded that three statements made by Hardie were admissible - The first statement was made before she was arrested and had nothing to do with the alleged s. 10(b) violation - Admission of her second and third statements also would not affect the fairness of the trial in a significant way - The court found that Hardie wanted to tell her story and exonerate herself regardless of what the police said or did - However, the court excluded the Certificate of a Qualified Technician under s. 24(2) of the Charter, finding that admission of that evidence would bring the administration of justice into disrepute.

Civil Rights - Topic 8368

Canadian Charter of Rights and Freedoms - Denial of rights - Remedies - Exclusion of evidence - [See Civil Rights - Topic 4617.1 ].

Civil Rights - Topic 8587.1

Canadian Charter of Rights and Freedoms - Practice - Notice - General - Hardie was charged with impaired driving and failing the breathalyzer - She alleged that the police violated her s. 10(b) Charter right to counsel of choice - The issue of whether Hardie received the full informational component of her right to counsel arose from the evidence on the voir dire - Crown counsel argued that as she had not received any proper notice, this aspect of the alleged infringement should not be considered - The Nova Scotia Provincial Court stated that "First, in my view, the application was timely as it was asserted at the earliest possible point in the hearing of evidence and before an adjournment to hear further submissions on the blended voir dire. ... Besides, in my opinion, Ms. Hardie's s. 10(b) Charter right was and remained a live issue. Moreover, the Notice of Charter Application dated 21 February, 2013 subsumed that any issues that arose during the hearing of evidence that clearly impacted upon the accused's Charter rights would be subject to challenge. Here, there is strong evidence of a prima facie breach of the informational component of the right to counsel and I have heard submissions on the point. The Crown, in my view, had the time, to address fully the issue or even, if it so desired, to recall its witness on that point. Thus, in the circumstances, I think that I am duty bound to assess all the evidence presented considering the impact of any exclusion on the integrity of the justice system and to rule accordingly. ... Second, the authorities are clear that the right to counsel include both the informational and implementation components" - See paragraphs 14 to 16.

Criminal Law - Topic 1362

Offences against person and reputation - Motor vehicles - Impaired driving - Evidence and proof - The Nova Scotia Provincial Court found Hardie guilty of impaired driving - The court stated that "there is evidence before me that I accept that Ms. Hardie's manner of driving was erratic and unusual. She paused for an unduly length of time at the red light, straddled the lanes of the highway, made a wide right turn into the path of an oncoming vehicle almost hitting it and overcompensated by hitting the right curb and overcompensated again by going fully into the left lane. I find that the evidence supports the conclusion that it was a marked departure from normal conduct and conduct that indicated a deviation from normal driving conduct. She has admitted consuming alcohol and on the evidence, I conclude and find that such consumption most likely occurred before she drove and arrived at the beach. The observations of her conduct on her arrival at the beach and immediately afterwards, both by lay persons and police officers, were that she was intoxicated. ... She had red glossy eyes, slurred speech, strong smell of alcohol on her breath and unsteadiness on her feet. The life guard also felt that for her safety she was too inebriated to continue swimming. On the total evidence, I conclude and find that she exhibited signs of impairment. When I consider all these factors and weigh them with the total evidence I find, beyond a reasonable doubt, that her ability to operate her vehicle, when on the highway, was impaired by alcohol" - See paragraphs 66 to 67.

Criminal Law - Topic 1379.2

Offences against person and reputation - Motor vehicles - Impaired driving - Breathalyzer - Admissibility where Charter right breached - [See Civil Rights - Topic 4617.1 ].

Cases Noticed:

R. v. Feldman (1994), 42 B.C.A.C. 31; 67 W.A.C. 31; 91 C.C.C.(3d) 256 (C.A.), affd. [1994] 3 S.C.R. 832; 178 N.R. 140; 53 B.C.A.C. 158; 87 W.A.C. 158; 93 C.C.C.(3d) 575, refd to. [para. 15].

R. v. Travers (R.H.) (2001), 193 N.S.R.(2d) 263; 602 A.P.R. 263; 154 C.C.C.(3d) 426 (C.A.), refd to. [para. 15].

R. v. Bartle (K.), [1994] 3 S.C.R. 173; 172 N.R. 1; 74 O.A.C. 161, refd to. [para. 16].

R. v. Cobham, [1994] 3 S.C.R. 360; 172 N.R. 123; 157 A.R. 81; 77 W.A.C. 81; 92 C.C.C.(3d) 333, refd to. [para. 16].

R. v. Prosper, [1994] 3 S.C.R. 236; 172 N.R. 161; 133 N.S.R.(2d) 321; 380 A.P.R. 321; 92 C.C.C.(3d) 353, refd to. [para. 16].

R. v. Harper, [1994] 3 S.C.R. 343; 172 N.R. 91; 97 Man.R.(2d) 1; 79 W.A.C. 1; 92 C.C.C.(3d) 423, refd to. [para. 16].

R. v. Matheson (R.N.), [1994] 3 S.C.R. 328; 172 N.R. 108; 123 Nfld. & P.E.I.R. 271; 382 A.P.R. 271; 92 C.C.C.(3d) 434, refd to. [para. 16].

R. v. Pozniak (W.), [1994] 3 S.C.R. 310; 172 N.R. 72; 74 O.A.C. 232; 92 C.C.C.(3d) 472, refd to. [para. 16].

R. v. Luong (G.V.) (2000), 271 A.R. 368; 234 W.A.C. 368 (C.A.), refd to. [para. 20].

R. v. Hebert, [1990] 2 S.C.R. 151; 110 N.R. 1, refd to. [para. 25].

R. v. Willier (S.J.), [2010] 2 S.C.R. 429; 406 N.R. 218; 490 A.R. 1; 497 W.A.C. 1; 2010 SCC 37, refd to. [para. 33].

R. v. Trueman (D.) (2008), 325 Sask.R. 252 (Q.B.), refd to. [para. 33].

R. v. Kreiser (A.) (2013), 428 Sask.R. 191 (Prov. Ct.), refd to. [para. 33].

R. v. McCrimmon (D.R.), [2010] 2 S.C.R. 402; 406 N.R. 152; 293 B.C.A.C. 144; 496 W.A.C. 144, refd to. [para. 35].

R. v. Collins, [1987] 1 S.C.R. 265; 74 N.R. 276, refd to. [para. 35].

R. v. Grant (D.), [2009] 2 S.C.R. 353; 391 N.R. 1; 253 O.A.C. 124; 2009 SCC 32, refd to. [para. 36].

R. v. Farahanchi (H.) (2010), 295 N.S.R.(2d) 99; 935 A.P.R. 99 (Prov. Ct.), refd to. [para. 39].

R. v. Markovic, [2013] O.J. No. 2549 (C.J.), refd to. [para. 40].

R. v. Harrison (B.), [2009] 2 S.C.R. 494; 391 N.R. 147; 253 O.A.C. 358; 2009 SCC 34, refd to. [para. 43].

R. v. Côté (A.) (2011), 421 N.R. 112 (S.C.C.), refd to. [para. 43].

Faryna v. Chorny, [1952] 2 D.L.R. 354 (B.C.C.A.), refd to. [para. 49].

R. v. D.D.S. (2006), 242 N.S.R.(2d) 235; 770 A.P.R. 235 (C.A.), refd to. [para. 50].

R. v. D.W., [1991] 1 S.C.R. 742; 122 N.R. 277; 46 O.A.C. 352, refd to. [para. 53].

R. v. Dinelle (1986), 74 N.S.R.(2d) 162; 180 A.P.R. 162 (C.A.), refd to. [para. 58].

R. v. Stellato (T.) (1993), 61 O.A.C. 217; 78 C.C.C.(3d) 380 (C.A.), affd. [1994] 2 S.C.R. 478; 168 N.R. 190; 72 O.A.C. 140, refd to. [para. 63].

R. v. Andrews (M.A.) (1996), 178 A.R. 182; 110 W.A.C. 182 (C.A.), refd to. [para. 64].

R. v. Graat, [1982] 2 S.C.R. 819; 45 N.R. 451, refd to. [para. 64].

Statutes Noticed:

Canadian Charter of Rights and Freedoms, 1982, sect. 10(b) [para. 1]; sect. 24(2) [para. 31].

Counsel:

Tanya Carter, for the Crown;

Stan MacDonald, for the accused.

This matter was heard on March 27, July 19 and September 10, 2013, before Williams, P.C.J., of the Nova Scotia Provincial Court, who delivered the following decision on November 1, 2013.