R. v. Kelly (J.), (2013) 338 Nfld. & P.E.I.R. 104 (NLPC)

• Judge: Gorman, P.C.J.
• Court: Newfoundland and Labrador Provincial Court (Canada)
• Case Date: June 07, 2013
• Jurisdiction: Newfoundland and Labrador
• Citations: (2013), 338 Nfld. & P.E.I.R. 104 (NLPC);2013 NLPC 1312

R. v. Kelly (J.) (2013), 338 Nfld. & P.E.I.R. 104 (NLPC);

    1049 A.P.R. 104

MLB headnote and full text

Temp. Cite: [2013] Nfld. & P.E.I.R. TBEd. JN.018

Her Majesty the Queen v. Joshua Kelly

(2013 NLPC 1312A00243)

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

Newfoundland and Labrador Provincial Court

Gorman, P.C.J.

June 17, 2013.

Summary:

The accused was charged with impaired driving and driving while having an excessive blood-alcohol level. The accused applied for exclusion of the results of the blood-alcohol concentration analysis under s. 24(2) of the Charter. He asserted that the blood was taken from him in violation of s. 8 of the Charter on the basis that the blood was obtained pursuant to an invalid s. 254(3)(a)(ii) Criminal Code demand.

The Newfoundland and Labrador Provincial Court dismissed the application.

Criminal Law - Topic 1375

Offences against person and reputation - Motor vehicles - Impaired driving - Breathalyzer or blood sample - Demand for - Police received information that a single motor vehicle accident occurred - Based on their inquiries, they concluded that an impaired driver (the accused) might have operated the vehicle - They received information that the accused was at the hospital - They obtained information that the accused had drunk approximately eight beers and when a police officer spoke to the accused he observed a smell of alcohol - The police observed the accused's injuries and that his head was being kept motionless and secure - The police decided to demand that the accused provide samples of his blood for alcohol content analysis - The accused complied with the demand and samples of his blood were taken by a qualified technician - The blood was subsequently analyzed and found to contain 188 milligrams of alcohol for every 100 hundred millilitres of blood - The accused was charged with impaired driving offences - The accused applied for exclusion of the results of the blood-alcohol concentration analysis under s. 24(2) of the Charter - He asserted that the blood was taken from him in violation of s. 8 of the Charter on the basis that the blood was obtained pursuant to an invalid s. 254(3)(a)(ii) Criminal Code demand - The accused submitted that because of his injuries, he was unable to understand the blood demand - The Newfoundland and Labrador Provincial Court dismissed the application - The accused understood the nature of the blood demand and voluntarily complied with it - The accused told the police when asked if he understood the blood demand that he did understand - Further, the accused was advised of his right to counsel without delay and cautioned - See paragraph 45.

Criminal Law - Topic 1375

Offences against person and reputation - Motor vehicles - Impaired driving - Breathalyzer or blood sample - Demand for - Police received information that a single motor vehicle accident occurred - Based on their inquiries, they concluded that an impaired driver (the accused) might have operated the vehicle - They received information that the accused was at the hospital - They obtained information that the accused had drunk approximately eight beers and when a police officer spoke to the accused he observed a smell of alcohol - The police observed the accused's injuries and that his head was being kept motionless and secure - The police decided to demand that the accused provide samples of his blood for alcohol content analysis - The accused complied with the demand and samples of his blood were taken by a qualified technician - The blood was subsequently analyzed and found to contain 188 milligrams of alcohol for every 100 hundred millilitres of blood - The accused was charged with impaired driving offences - The accused applied for exclusion of the results of the blood-alcohol concentration analysis under s. 24(2) of the Charter - He asserted that the blood was taken from him in violation of s. 8 of the Charter on the basis that the blood was obtained pursuant to an invalid s. 254(3)(a)(ii) Criminal Code demand - The accused submitted that the blood demand was not made as soon as practicable - The Newfoundland and Labrador Provincial Court dismissed the application - Though there was a delay between the grounds for a demand having been established and the making of the demand, the delay was caused by the ongoing medical treatment being administered to the accused - The police acted reasonably and the demand for the provision of blood samples was made as soon as practicable - There was a second delay, however it was necessary because the initial blood kit had expired and the accused was taken for more x-rays - Again, the police acted reasonably - Finally, the accident (or offence) occurred between 4:00 p.m. and 4:30 p.m. - The timing of the demand at approximately 6:36 p.m. fell within the statutory requirements set out in s. 245(3)(a)(ii) - See paragraphs 46 to 50.

Criminal Law - Topic 1375

Offences against person and reputation - Motor vehicles - Impaired driving - Breathalyzer or blood sample - Demand for - Police received information that a single motor vehicle accident occurred - Based on their inquiries, they concluded that an impaired driver (the accused) might have operated the vehicle - They received information that the accused was at the hospital - They obtained information that the accused had drunk approximately eight beers and when a police officer spoke to the accused he observed a smell of alcohol - The police observed the accused's injuries and that his head was being kept motionless and secure - The police decided to demand that the accused provide samples of his blood for alcohol content analysis - The accused complied with the demand and samples of his blood were taken by a qualified technician - The blood was subsequently analyzed and found to contain 188 milligrams of alcohol for every 100 hundred millilitres of blood - The accused was charged with impaired driving offences - The accused applied for exclusion of the results of the blood-alcohol concentration analysis under s. 24(2) of the Charter - He asserted that the blood was taken from him in violation of s. 8 of the Charter on the basis that the blood was obtained pursuant to an invalid s. 254(3)(a)(ii) Criminal Code demand - The accused submitted that the Crown had not established that the accused was incapable of providing a breath sample or that it was impractical to have obtained samples of breath from the accused - The Newfoundland and Labrador Provincial Court dismissed the application - The police conceded that they had not spoken to the attending physician or any other hospital staff concerning the nature of the accused's injuries - However, there was no absolute common law requirement that they do so nor was there any statutory requirement - The accused was involved in a serious accident - The medical attention being provided was ongoing and the accused was strapped into a gurney - The police action was reasonable - See paragraphs 51 to 54.

Cases Noticed:

R. v. Colarusso, [1994] 1 S.C.R. 20; 162 N.R. 321; 69 O.A.C. 81, refd to. [para. 28].

R. v. Cole (R.) et al. (2012), 435 N.R. 102; 297 O.A.C. 1; 2012 SCC 53, refd to. [para. 28].

R. v. Mann (P.H.), [2004] 3 S.C.R. 59; 324 N.R. 215; 187 Man.R.(2d) 1; 330 W.A.C. 1; 2004 SCC 52, refd to. [para. 28].

R. v. Rodgers - see R. v. Jackpine (R.).

R. v. Jackpine (R.), [2006] 1 S.C.R. 554; 347 N.R. 201; 210 O.A.C. 200; 2006 SCC 15, refd to. [para. 28].

R. v. Caslake (T.L.), [1998] 1 S.C.R. 51; 221 N.R. 281; 123 Man.R.(2d) 208; 159 W.A.C. 208, refd to. [para. 29].

R. v. Shepherd (C.), [2009] 2 S.C.R. 527; 391 N.R. 132; 331 Sask.R. 306; 460 W.A.C. 306, refd to. [para. 30].

R. v. Caruth (R.K.) (2009), 474 A.R. 139; 479 W.A.C. 139; 2009 ABCA 342, refd to. [para. 33].

R. v. Salmon (E.) (1999), 132 B.C.A.C. 238; 215 W.A.C. 238; 2 M.V.R.(4th) 145 (C.A.), refd to. [para. 36].

R. v. Barrett (A.) (2012), 319 Nfld. & P.E.I.R. 287; 992 A.P.R. 287; 2012 NLCA 12, refd to. [para. 36].

R. v. Knox (W.), [1996] 3 S.C.R. 199; 202 N.R. 228, refd to. [para. 37].

R. v. Squires (D.) (2002), 159 O.A.C. 249; 59 O.R.(3d) 765 (C.A.), refd to. [para. 38].

! R. v. Myrick (N.J.) (1995), 130 Nfld. & P.E.I.R. 144; 405 A.P.R. 144 (Nfld. C.A.), refd to. [para. 38].

R. v. Vanderbruggen (M.) (2006), 208 O.A.C. 379; 206 C.C.C.(3d) 489 (C.A.), refd to. [para. 39].

R. v. Carter (1981), 9 Sask.R. 1 (C.A.), refd to. [para. 40].

R. v. McCarthy (1981), 35 Nfld. & P.E.I.R. 40; 99 A.P.R. 40; 64 C.C.C.(2d) 280 (Nfld. C.A.), refd to. [para. 40].

R. v. McLean, [2011] N.J. No. 220 (Prov. Ct.), refd to. [para. 40].

R. v. McCarthy (G.R.), 2009 NLTD 158, refd to. [para. 40].

R. v. Fiander, [1989] N.J. No. 340 (T.D.), refd to. [para. 40].

R. v. Reid (T.) (2013), 419 Sask.R. 164; 2013 SKPC 62, refd to. [para. 46].

R. v. Smalridge (K.G.) (2000), 270 A.R. 196 (Prov. Ct.), refd to. [para. 47].

R. v. Purdon (1989), 100 A.R. 313 (C.A.), refd to. [para. 47].

R. v. Rowe (T.M.) (2013), 336 Nfld. & P.E.I.R. 284; 1043 A.P.R. 284 (N.L. Prov. Ct.), refd to. [para. 52].

R. v. Gendron-O'Hara (M.), [2011] A.R. Uned. 221; 2011 ABPC 83, refd to. [para. 52].

R. v. Doyle (E.A.) (2009), 288 N.S.R.(2d) 12; 914 A.P.R. 12 (Prov. Ct.), refd to. [para. 53].

R. v. Dunning, [1995] O.J. No. 646 (C.J.), refd to. [para. 53].

Authors and Works Noticed:

Chamberlain, Erika, and Solomon, Robert, Enforcing Impaired Driving Laws Against Hospitalized Drivers: The Intersection of Health Care, Patient Confidentiality, and Law Enforcement (2010), 29 W.R.L.S.I. 45, generally [para. 32].

Counsel:

E. Ring, for Her Majesty the Queen;

T. James Bennett, for Mr. Kelly.

This application was heard at Corner Brook, NL, on June 7, 2013, by Gorman, P.C.J., of the Newfoundland and Labrador Provincial Court, who delivered the following judgment on June 17, 2013.