R. v. Martin (R.F.), (1990) 87 Nfld. & P.E.I.R. 71 (NFPC)

• Judge: LeBlanc, P.C.J.
• Court: Newfoundland and Labrador Provincial Court (Canada)
• Case Date: December 05, 1990
• Jurisdiction: Newfoundland and Labrador
• Citations: (1990), 87 Nfld. & P.E.I.R. 71 (NFPC)

R. v. Martin (R.F.) (1990), 87 Nfld. & P.E.I.R. 71 (NFPC);

    271 A.P.R. 71

MLB headnote and full text

Her Majesty the Queen v. Randy Frederick Martin (defendant)

Indexed As: R. v. Martin (R.F.)

Newfoundland Provincial Court

District of Menihek

LeBlanc, P.C.J.

December 5, 1990.

Summary:

The impaired owner of a motor vehicle asked a friend to drive. The owner then sat in the rear. The police stopped the vehicle. The driver told the police she only possessed a beginner's permit. The owner was charged under s. 253(b) of the Criminal Code, R.S.C. 1985, c. C-46, with having care or control of a motor vehicle while impaired. At the end of the Crown's case, the owner applied for a directed verdict of not guilty.

The Newfoundland Provincial Court granted the motion and acquitted the owner.

Criminal Law - Topic 1367

Offences against person and reputation - Motor vehicles - Impaired driving - Meaning of "care or control" - The owner of a motor vehicle was impaired - He asked a friend to drive - The owner sat in the rear - The police stopped the vehicle - After the driver stated that she only possessed a beginner's permit, the owner was charged under s. 253(b) of the Code with having care or control of a motor vehicle while impaired - The Newfoundland Provincial Court stated that before an owner, who was not the driver, could be found to have care or control of a vehicle, there must be evidence that he gave some directional instructions or guidelines to the driver - See paragraphs 15 to 17.

Criminal Law - Topic 1368

Offences against person and reputation - Motor vehicles - Impaired driving - Care or control - What constitutes - The owner of a motor vehicle was impaired - He asked a friend to drive - The owner sat in the rear - No evidence that the driver received instructions or assistance from the owner - The vehicle was stopped and the owner was charged under s. 253(b) of the Code with having care or control of a motor vehicle while impaired - The Newfoundland Provincial Court acquitted the owner on a directed verdict - The court observed that even if there was evidence that the driver was not qualified to drive, the Crown still lacked evidence concerning instructions from the owner to the driver - See paragraph 20.

Criminal Law - Topic 4440

Procedures - Verdicts, discharges and dismissals - Directed verdicts - The Newfoundland Provincial Court discussed the test to be applied in deciding a defendant's motion for a directed verdict at the end of the Crown's case - The court stated "that the test this court must apply is whether there is any admissible evidence upon which a reasonable jury properly instructed could return a verdict of guilty. If there is admissible evidence, whether credible or not, the trial judge must deny the motion for a directed verdict" - See paragraphs 5 to 8.

Criminal Law - Topic 4557

Procedure - Trial - Motions - Motion for a nonsuit - For lack of evidence - [See Criminal Law - Topic 4440].

Evidence - Topic 1500

Hearsay rule - General principles and definitions - General rule - The Newfoundland Provincial Court considered the nature of the rule regarding the admissibility of hearsay evidence - The court noted that "[E]vidence of a statement made to a witness by a person who is not himself called as a witness may or may not be hearsay. It is hearsay and inadmissible when the object of the evidence is to establish the truth of what is contained in the statement. It is not hearsay and is admissible when it is proposed to establish by the evidence, not the truth of the statement but the fact that it was made" - See paragraph 10.

Evidence - Topic 1504

Hearsay rule - General principles and definition - What constitutes hearsay - The owner of a motor vehicle was impaired - He asked a friend to drive - The police stopped the vehicle and the driver informed the police that she only possessed a beginner's permit - The owner was charged under s. 253(b) of the Code with having care or control of the vehicle while impaired - At the trial, the officer testified as to the driver's statement regarding the permit - The driver did not testify - On a motion for a directed verdict, the Newfoundland Provincial Court ruled that there was no admissible evidence as to the driver's lack of qualification because the officer's testimony was inadmissible hearsay - See paragraph 11.

Evidence - Topic 1721

Hearsay rule - Exclusions and exceptions - Res gestae - Utterances as part of the issue or event - Accused's statements - The owner of a vehicle was impaired and he asked a friend to drive - The friend only had a beginner's permit - They were detained by the police - The owner told the officer that he asked the friend to drive because he was impaired - The owner was charged under s. 253(b) of the Code with having care or control of the vehicle while impaired - The Newfoundland Provincial Court held that the officer's testimony concerning the accused's statement was admissible evidence under the hearsay rule because it concerned a contemporaneous statement - See paragraph 12.

Cases Noticed:

United States of America v. Sheppard, [1977] 2 S.C.R. 1067; 9 N.R. 215; 70 D.L.R.(3d) 1365; 30 C.C.C.(2d) 424; 34 C.R.N.S. 207, appld. [para. 5].

R. v. Mezzo, [1986] 1 S.C.R. 802; [1986] 4 W.W.R. 577; 68 N.R. 1; 43 Man.R.(2d) 161; 80 D.L.R.(4th) 161; 27 C.C.C.(3d) 97; 52 C.R.(3d) 113, consd. [para. 7].

R. v. Hearn & Fahey (1989), 75 Nfld. & P.E.I.R. 13; 234 A.P.R. 13 (Nfld. C.A.), refd to. [para. 8].

R. v. Chura (1990), 67 Man.R.(2d) 312; 11 W.C.B.(2d) 58 (Man. C.A.), refd to. [para. 8].

Ratten v. R., [1971] 3 All E.R. 801 (P.C.), appld. [para. 10].

R. v. Abbey, [1982] 2 S.C.R. 24; [1983] 1 W.W.R. 251; 43 N.R. 30; 39 B.C.L.R. 201; 138 D.L.R.(3d) 202; 29 C.R.(3d) 193; 68 C.C.C.(3d) 394 (S.C.C.), refd to. [para. 10].

R. v. Ford, [1982] 1 S.C.R. 231; 40 N.R. 451; 36 Nfld. & P.E.I.R. 254; 101 A.P.R. 254; 65 C.C.C.(2d) 292; 13 M.V.R. 237, consd. [para. 15].

R. v. Toews, [1985] 2 S.C.R. 119; [1985] 6 W.W.R. 158; 61 N.R. 349; 20 D.L.R.(4th) 758; 21 C.C.C.(3d) 24; 47 C.R.(3d) 213; 36 M.V.R. 1, consd. [para. 16].

R. v. Wicks, [1972] 3 W.W.R. 318 (Sask. Mag. Ct.), refd to. [para. 17].

R. v. Gentry (1966), 49 C.R. 279 (B.C.C.C.), refd to. [para. 17].

R. v. Sheldon, [1971] 2 W.W.R. 462 (Yuk. Terr. Mag. Ct.), refd to. [para. 17].

R. v. Collins (1975), 10 Nfld. & P.E.I.R. 509; 17 A.P.R. 509 (Nfld. Prov. Ct.), refd to. [para. 17].

R. v. Doyle (1975), 10 Nfld. & P.E.I.R. 542; 17 A.P.R. 542 (Nfld. Prov. Ct.), refd to. [para. 17].

Lumiala, Re (1957), 25 C.R. 361 (Ont. S.C.), consd. [para. 18].

R. v. Slessor (1969), 7 C.R.N.S. 379, refd to. [para. 19].

Statutes Noticed:

Criminal Code, R.S.C. 1985, c. C-46, sect. 253(b) [para. 1].

Authors and Works Noticed:

McWilliams, Canadian Criminal Evidence (3rd Ed.), p. 8.70.1 [para. 12].

Counsel:

David King, for the Crown;

Randy Frederick Martin for himself.

This matter was heard by LeBlanc, P.C.J., of the Newfoundland Provincial Court, District of Menihek, who delivered the following judgment on December 5, 1990.