R. v. Jakupaj (L.), (2015) 362 Nfld. & P.E.I.R. 271 (NLPC)

JudgeSkanes, P.C.J.
CourtNewfoundland and Labrador Provincial Court (Canada)
Case DateJanuary 29, 2015
JurisdictionNewfoundland and Labrador
Citations(2015), 362 Nfld. & P.E.I.R. 271 (NLPC);2015 NLPC 0114

R. v. Jakupaj (L.) (2015), 362 Nfld. & P.E.I.R. 271 (NLPC);

    1125 A.P.R. 271

MLB headnote and full text

Temp. Cite: [2015] Nfld. & P.E.I.R. TBEd. FE.021

Her Majesty the Queen v. Lulzim Jakupaj

(2015 NLPC 0114A01134)

Indexed As: R. v. Jakupaj (L.)

Newfoundland and Labrador Provincial Court

Skanes, P.C.J.

January 29, 2015.

Summary:

The accused was charged with refusing to comply with an approved screening device demand. He admitted that he had been drinking and that he refused the demand, but argued that the demand was unlawful because there was no evidence that he had been driving.

The Newfoundland and Labrador Provincial Court acquitted the accused.

Criminal Law - Topic 1386.1

Motor vehicles - Impaired driving - Roadside screening test - Demand - Police were investigating a report of a possible impaired driver - They located Jakupaj as he was exiting an apartment building and made an approved screening device (ASD) demand - Jakupaj was charged with refusing to comply with an ASD demand - He admitted that he had been drinking and had refused the demand, but argued that the demand was unlawful because there was no evidence that he had been driving - The Newfoundland and Labrador Provincial Court acquitted Jakupaj - The law in this area was unclear - The court asked "In order to successfully prosecute ... for the refusal of an ASD demand: 1) Does the Crown have to prove merely that the officer had a reasonable suspicion that the accused was driving, or 2) Though the officer is only required to reasonably suspect that the accused had alcohol in his body, must the Crown prove that the officer had reasonable grounds to believe that the accused was driving, or 3) ... must the Crown prove beyond a reasonable doubt at trial that the accused was actually driving or in care or control of a vehicle ... ?" - Whichever test was used, the Crown had not met the burden of proof in this case - There was no proof that Jakupaj was driving within the three hours prior to the demand - Nor were there objectively reasonable and probable grounds to believe that he was driving.

Criminal Law - Topic 1386.3

Motor vehicles - Impaired driving - Roadside screening test - Refusal - [See Criminal Law - Topic 1386.1 ].

Cases Noticed:

R. v. Jaycox (D.A.), 2010 BCPC 140, refd to. [para. 33].

R. v. MacPherson (P.) (2000), 140 O.A.C. 53 (C.A.), refd to. [para. 36].

R. v. Ademaj, [2001] O.T.C. 700; 2001 CarswellOnt 3334 (Sup. Ct.), affd. (2003), 171 O.A.C. 31 (C.A.), refd to. [paras. 43, 44].

R. v. Barry (P.W.), 2009 CanLII 38448 (N.L. Prov. Ct.), refd to. [para. 45].

R. v. Dullah (D.) (2014), 351 Nfld. & P.E.I.R. 347; 1093 A.P.R. 347; 2014 CanLII 27764 (N.L. Prov. Ct.), refd to. [para. 49].

Statutes Noticed:

Criminal Code, R.S.C. 1985, c. C-46, sect. 254(2) [para. 24]; sect. 254(5) [para. 25].

Authors and Works Noticed:

Kenkel, Joseph P., Impaired Driving in Canada (2012), pp. 132 [para. 37]; 164 [para. 38]; 212 [para. 39].

Counsel:

Erin Matthews, for Her Majesty the Queen;

Michael Ralph, for the accused.

This matter was heard at St. John's, N.L., on January 5 and 15, 2015, before Skanes, P.C.J., of the Newfoundland and Labrador Provincial Court, who delivered the following decision orally on January 29, 2015.

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