R. v. Mahoney (T.), (1989) 80 Nfld. & P.E.I.R. 17 (NFPC)

• Judge: Woodrow, P.C.J.
• Court: Newfoundland and Labrador Provincial Court (Canada)
• Case Date: October 27, 1989
• Jurisdiction: Newfoundland and Labrador
• Citations: (1989), 80 Nfld. & P.E.I.R. 17 (NFPC)

R. v. Mahoney (T.) (1989), 80 Nfld. & P.E.I.R. 17 (NFPC);

    249 A.P.R. 17

MLB headnote and full text

Her Majesty The Queen v. Thomas Mahoney

Indexed As: R. v. Mahoney (T.)

Newfoundland Provincial Court

Woodrow, P.C.J.

October 27, 1989.

Summary:

The accused was charged with refusing to provide a breathalyzer sample. He alleged that he was not informed of his Charter right to counsel. The police constable alleged that he was given his Charter right. The accused made a telephone call while awaiting the breathalyzer technician.

The Newfoundland Provincial Court convicted the accused.

Civil Rights - Topic 4610

Right to counsel - Impaired driving - Demand for breath or blood sample - The accused was charged with breathalyzer refusal - He alleged that he was not given his Charter rights - The police alleged that he was read his rights - The accused made a telephone call while awaiting a breathalyzer technician - The Newfoundland Provincial Court stated that even if the accused was not advised of his right to counsel, the failure was of no consequence under the circumstances.

Civil Rights - Topic 4610

Right to counsel - Impaired driving - Demand of breath or blood sample - [See Civil Rights - Topic 8346 below].

Civil Rights - Topic 8346

Canadian Charter of Rights and Freedoms - Denial of rights - Burden of proof - The accused was charged with a breathalyzer refusal - He alleged that he was not given his Charter right to counsel - He asked to use the telephone and was given permission to do so - The police constable alleged that he was given his Charter rights - The Newfoundland Provincial Court convicted the accused - The court stated that the burden of proof of Charter breach was on the accused - Where the evidence did not establish whether the rights were infringed, the court must conclude that they were not.

Cases Noticed:

R. v. Therens, [1985] 1 S.C.R. 613; 40 Sask.R. 122; 59 N.R. 122; 18 C.C.C.(3d) 481; 45 C.R.(3d) 97; 18 D.L.R.(4th) 655; [1984] 4 W.W.R. 286; 32 M.V.R. 153 (S.C.C.), refd to. [para. 3].

R. v. Comeau (1982), 55 N.S.R.(2d) 170; 114 A.P.R. 170; 4 C.R.R. 306 (C.A.), refd to. [para. 4].

R. v. Hylkena (1985), 70 N.S.R.(2d) 368; 166 A.P.R. 368; 23 C.C.C.(3d) 454, refd to. [para. 5].

R. v. Collins, [1987] 1 S.C.R. 265; [1987] 3 W.W.R. 699; 74 N.R. 276; 33 C.C.C.(3d) 1; 56 C.R.(3d) 193; 13 B.C.L.R.(2d) 1; 38 D.L.R.(4th) 508; 28 C.R.R. 122, refd to. [para. 7].

Statutes Noticed:

Canadian Charter of Rights and Freedoms, 1982, sect. 10(b) [para. 3].

Counsel:

H. Porter, for the Crown;

S. Marshall, for the defence.

This case was heard before Woodrow, P.C.J., of the Newfoundland Provincial Court, who delivered the following judgment on October 27, 1989.