R. v. Landry (S.), (2013) 403 N.B.R.(2d) 190 (TD)

• Judge: Léger, J.
• Court: Court of Queen's Bench of New Brunswick (Canada)
• Case Date: November 13, 2012
• Jurisdiction: New Brunswick
• Citations: (2013), 403 N.B.R.(2d) 190 (TD);2013 NBQB 57

R. v. Landry (S.) (2013), 403 N.B.R.(2d) 190 (TD);

    403 R.N.-B.(2e) 190; 1045 A.P.R. 190

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[French language version follows English language version]

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Temp. Cite: [2013] N.B.R.(2d) TBEd. MY.003

Renvoi temp.: [2013] N.B.R.(2d) TBEd. MY.003

Sophie Landry (appellant) v. Her Majesty the Queen (respondent)

(B/CA/2/2011; 2013 NBQB 57; 2013 NBBR 57)

Indexed As: R. v. Landry (S.)

Répertorié: R. v. Landry (S.)

New Brunswick Court of Queen's Bench

Trial Division

Judicial District of Bathurst

Léger, J.

January 7, 2013.

Summary:

Résumé:

The accused was charged with impaired driving and driving while having an excessive blood-alcohol content. A voir dire was held to determine the admissibility of the Certificate of Analysis.

The New Brunswick Provincial Court, in a decision reported at 374 N.B.R.(2d) 215; 965 A.P.R. 215, ruled the Certificate admissible. The accused was acquitted of impaired driving but convicted of driving while having an excessive blood-alcohol content. She appealed her conviction.

The New Brunswick Court of Queen's Bench, Trial Division, dismissed the appeal.

Criminal Law - Topic 1386.2

Motor vehicles - Impaired driving - Roadside screening test - Time and place for (e.g. residual mouth alcohol) - Four or five minutes after the accused left a bar and drove away, she was intercepted by a police officer - The officer noticed red eyes, red face and an "average" alcohol odour - The accused indicated that she had just come from a bar and had consumed one or two beers during the evening - She complied with an Approved Screening Device (ASD) demand which resulted in a "fail" - She then complied with a breathalyzer demand - She was subsequently convicted of driving while having an excessive blood-alcohol content - She appealed on the grounds that the trial judge had erred in finding that (1) the ASD results were valid when the officer had not taken the necessary steps to ensure that no alcohol had been consumed in the 15 minutes that preceded the test, and (2) the ASD results were reliable despite the fact that she had consumed alcohol in the 15 minutes that preceded the test - The New Brunswick Court of Queen's Bench, Trial Division, dismissed the appeal - The trial judge's finding that the officer honestly believed that he could proceed without delay with the breathalyzer demand was supported by the evidence - At the time he made the breath sample demand, the officer had no information regarding the last drink consumed - In the circumstances, he was entitled to rely on the ASD results - Moreover, he was under no obligation to make further inquiries on the exact circumstances of the situation to ascertain when the accused had consumed her last drink - The officer was clearly of the opinion that the test result was valid and that the instrument was functioning properly - It was open to the trial judge to find that the officer had reasonable grounds to suspect the presence of alcohol in the accused's body.

Droit criminel - Cote 1386.2

Véhicules à moteur - Capacité de conduite affaiblie - Test de détection routier - Moment et lieu - [Voir Criminal Law - Topic 1386.2 ].

Cases Noticed:

R. v. Fowler (M.O.) (2006), 304 N.B.R.(2d) 106; 788 A.P.R. 106; 2006 NBCA 90, refd to. [para. 7].

R. v. G.J.G. (2002), 254 N.B.R.(2d) 131; 664 A.P.R. 131; 2002 NBCA 99, refd to. [para. 8].

R. v. Mastromartino (A.), [2004] O.T.C. 310 (Sup. Ct.), refd to. [para. 14].

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. 14].

R. v. Einarson (K.) (2004), 184 O.A.C. 176 (C.A.), refd to. [para. 14].

Counsel:

Avocats:

Luc Roy, for the appellant;

Mélanie LeBlanc, for the respondent.

This appeal was heard in Bathurst, N.B., on November 13, 2012, before Léger, J., of the New Brunswick Court of Queen's Bench, Trial Division, Judicial District of Bathurst, who delivered the following decision on January 7, 2013.