R. v. Leger (K.), (2008) 329 N.B.R.(2d) 371 (PC)

JudgeFerguson, P.C.J.
CourtProvincial Court of New Brunswick (Canada)
Case DateJanuary 22, 2008
JurisdictionNew Brunswick
Citations(2008), 329 N.B.R.(2d) 371 (PC);2008 NBPC 21

R. v. Leger (K.) (2008), 329 N.B.R.(2d) 371 (PC);

    329 R.N.-B.(2e) 371; 844 A.P.R. 371

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Temp. Cite: [2008] N.B.R.(2d) TBEd. MY.001

Renvoi temp.: [2008] N.B.R.(2d) TBEd. MY.001

Her Majesty The Queen v. Kevin Leger

(13264513; 2008 NBPC 21; 2008 NBCP 21)

Indexed As: R. v. Leger (K.)

Répertorié: R. v. Leger (K.)

New Brunswick Provincial Court

Ferguson, P.C.J.

April 25, 2008.

Summary:

Résumé:

The accused was charged with impaired driving (Criminal Code, s. 253(a)) and operating a motor vehicle while having an excessive blood-alcohol level (s. 253(b)).

The New Brunswick Provincial Court convicted the accused of both charges. Given the finding of guilt under s. 253(b), a stay of proceedings would be entered conditionally on the conviction under s. 253(a) subject to a successful appeal on count one. If no appeal was launched on the verdict in count one or was unsuccessful, the stay of proceedings on count two would become unconditional.

Editor's note: for a motion for a stay of proceedings under the Charter in this case, see 311 N.B.R.(2d) 29; 803 A.P.R. 29 (Prov. Ct.).

Criminal Law - Topic 1376

Motor vehicles - Impaired driving - Breathalyzer or blood sample - Proof of blood-alcohol content - The accused was operating an all terrain vehicle when he was involved in an accident - The attending police officers noticed a strong odour of alcohol from the accused's breath, glassy eyes and somewhat slurred speech - The accused was brought to the hospital where the emergency room staff took blood samples - The blood vials were labeled and sent to the laboratory through the pneumatic tube system - The laboratory technician confirmed receipt of the vials identified as the accused's blood samples - An analyst, declared to be an alcohol expert, took one of the vials and tested it for blood-alcohol content - Her analysis found the blood-alcohol content to be 272 milligrams of alcohol per 100 milliliters of blood - The accused was charged with impaired driving (Criminal Code, s. 253(a)) and operating a motor vehicle while having an excessive blood-alcohol level (s. 253(b)) - The accused asserted that the absence of drinking pattern evidence for the accused in the half hour prior to the accident left open the possibility that the accused engaged in bolus drinking during that time thus rendering the expert evidence of alcohol content suspect - The New Brunswick Provincial Court rejected the assertion and convicted the accused - Evidence from witnesses at the scene established that the accused had not consumed any alcohol - Further, the inference of a normal alcohol drinking pattern was rooted in the common sense notions that people who drink alcohol only exceptionally bolus drank if at all - See paragraphs 45 to 58.

Criminal Law - Topic 1383.5

Motor vehicles - Impaired driving - Blood sample - Evidence and proof - The accused was operating an all terrain vehicle when he was involved in an accident - The attending police officers noticed a strong odour of alcohol from the accused's breath, glassy eyes and somewhat slurred speech - The accused was brought to the hospital where the emergency room staff took blood samples - The blood vials were labeled and sent to the laboratory through the pneumatic tube system - The laboratory technician confirmed receipt of the vials identified as the accused's blood samples - An analyst, declared to be an alcohol expert, took one of the vials and tested it for blood-alcohol content - Her analysis found the blood-alcohol content to be 272 milligrams of alcohol per 100 milliliters of blood - The accused was charged with impaired driving (Criminal Code, s. 253(a)) and operating a motor vehicle while having an excessive blood-alcohol level (s. 253(b)) - The accused asserted that the absence of evidence of his drinking pattern in the half hour prior to the time of the alleged offences coupled with unreliable evidence with respect to the accused's height and weight at the time undermined the analyst's opinion - The New Brunswick Provincial Court rejected the assertion and convicted the accused - The opinion evidence of the accused's weight observed on three separate occasions by two different witnesses was sufficiently reliable that it provided a firm basis upon which the expert could build her opinion - See paragraphs 31 to 39.

Criminal Law - Topic 1383.5

Motor vehicles - Impaired driving - Blood sample - Evidence and proof - The accused was operating an all terrain vehicle when he was involved in an accident - The attending police officers noticed a strong odour of alcohol from the accused's breath, glassy eyes and somewhat slurred speech - The accused was brought to the hospital where the emergency room staff took blood samples - The blood vials were labeled and sent to the laboratory through the pneumatic tube system - The laboratory technician confirmed receipt of the vials identified as the accused's blood samples - An analyst, declared to be an alcohol expert, took one of the vials and tested it for blood-alcohol content - Her analysis found the blood-alcohol content to be 272 milligrams of alcohol per 100 milliliters of blood - The accused was charged with impaired driving (Criminal Code, s. 253(a)) and operating a motor vehicle while having an excessive blood-alcohol level (s. 253(b)) - The accused asserted that the evidence did not establish that the vial used by the analyst as the basis of her opinion had been satisfactorily proven to be of those drawn by the emergency staff from the accused shortly after the accident - The New Brunswick Provincial Court rejected the assertion and convicted the accused - There was a firm temporal connection between the blood samples drawn and the blood samples that were received by the laboratory technician - There was, as well, a satisfactory and unbroken identity connection between the blood samples, the blood samples received by the laboratory technician and the blood samples seized by police and subsequently analyzed - See paragraphs 40 to 44.

Criminal Law - Topic 1383.5

Motor vehicles - Impaired driving - Blood sample - Evidence and proof - The accused was operating an all terrain vehicle when he was involved in an accident - The attending police officers noticed a strong odour of alcohol from the accused's breath, glassy eyes and somewhat slurred speech - The accused was brought to the hospital where the emergency room staff took blood samples - The blood vials were labeled and sent to the laboratory through the pneumatic tube system - The laboratory technician confirmed receipt of the vials identified as the accused's blood samples - An analyst, declared to be an alcohol expert, took one of the vials and tested it for blood-alcohol content - Her analysis found the blood-alcohol content to be 272 milligrams of alcohol per 100 milliliters of blood - The accused was charged with impaired driving (Criminal Code, s. 253(a)) and operating a motor vehicle while having an excessive blood-alcohol level (s. 253(b)) - The accused asserted that there was an unidentified powdered substance contained in the blood vials which rendered the analysis suspect - The New Brunswick Provincial Court rejected the assertion and convicted the accused - The powder contained in the blood vial was Potassium EDTA - This substance, described as an anticoagulant, did not scientifically impact the findings - The presence of Potassium EDTA powder in the questioned blood vial was not evidence that in any way undercut the analyst's opinion - See paragraphs 59 to 63.

Droit criminel - Cote 1376

Véhicules à moteur - Capacité de conduite affaiblie - Éthylomètre ou échantillon de sang - Preuve d'alcoolémie - [Voir Criminal Law - Topic 1376 ].

Droit criminel - Cote 1383.5

Véhicules à moteur - Capacité de conduite affaiblie - Échantillon de sang - Preuve - [Voir Criminal Law - Topic 1383.5 ].

Cases Noticed:

R. v. Boucher (E.), [2005] 3 S.C.R. 499; 342 N.R. 42, refd to. [para. 36].

R. v. Abbey, [1982] 2 S.C.R. 24; 43 N.R. 30, refd to. [para. 36].

R. v. Paquet (A.J.) (2007), 317 N.B.R.(2d) 272; 819 A.P.R. 272 (T.D.), affd. (2008), 329 N.B.R.(2d) 311; 844 A.P.R. 311; 2008 NBCA 29, refd to. [para. 36].

Ares v. Vennor, [1970] S.C.R. 608, refd to. [para. 44].

R. v. Hall (S.) (2007), 219 O.A.C. 251 (C.A.), leave to appeal denied (2007), 379 N.R. 395 (S.C.C.), refd to. [para. 46].

R. v. Grosse (P.) (1996), 91 O.A.C. 40; 107 C.C.C.(3d) 97 (C.A.), refd to. [para. 48].

R. v. Bulman (W.) (2007), 221 O.A.C. 210 (C.A.), refd to. [para. 51].

R. v. Dyer, [2007] O.J. No. 2752 (Prov. Ct.), refd to. [para. 57].

R. v. Gibson (R.A.) (2008), 373 N.R. 1; 429 A.R. 327; 421 W.A.C. 327; 2008 SCC 16, refd to. [para. 60].

R. v. Crosthwait, [1980] 1 S.C.R. 1089; 31 N.R. 603; 25 Nfld. & P.E.I.R. 509; 68 A.P.R. 509; 52 C.C.C.(3d) 129, refd to. [para. 61].

R. v. Beer (1985), 55 Nfld. & P.E.I.R. 1; 162 A.P.R. 1; 21 C.C.C.(3d) 417 (P.E.I.S.C.), refd to. [para. 62].

R. v. Nutt, [1981] B.C.J. No. 1556 (Co. Ct.), refd to. [para. 62].

R. v. Smeltzer (1986), 72 N.S.R.(2d) 284; 173 A.P.R. 284 (C.A.), refd to. [para. 62].

R. v. LeBlanc (1981), 36 N.B.R.(2d) 675; 94 A.P.R. 675; 64 C.C.C.(2d) 31 (C.A.), refd to. [para. 62].

R. v. Loffler, [1981] B.C.J. No. 1451 (Co. Ct.), refd to. [para. 62].

R. v. Stellato (T.), [1994] 2 S.C.R. 478; 168 N.R. 190; 72 O.A.C. 140, refd to. [para. 66].

Counsel:

Avocats:

Jean-Guy Savoie, for the Crown;

Wendell Maxwell, Q.C., for the defence.

This case was heard on February 8, June 13, October 25, December 19 and 20, 2006, and January 22, 2008, by Ferguson, P.C.J., of the New Brunswick Provincial Court, who delivered the following judgment on April 25, 2008.

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1 practice notes
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    • Canada
    • Provincial Court of New Brunswick (Canada)
    • December 15, 2014
    ...27; 103 O.R.(3d) 424 (C.A.), refd to. [para. 16]. R. v. Jordaan, [2014] O.J. No. 6162 (C.J.), refd to. [para. 17]. R. v. Leger (K.) (2008), 329 N.B.R.(2d) 371; 844 A.P.R. 371; 2008 NBPC 21, refd to. [para. R. v. St-Onge Lamoureux (A.), [2012] 3 S.C.R. 187; 436 N.R. 199; 2012 SCC 57, refd to......
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