R. v. Mason (B.), (2015) 368 Nfld. & P.E.I.R. 231 (NLTD(G))

• Judge: Orsborn, J.
• Court: Supreme Court of Newfoundland and Labrador (Canada)
• Case Date: June 15, 2015
• Jurisdiction: Newfoundland and Labrador
• Citations: (2015), 368 Nfld. & P.E.I.R. 231 (NLTD(G))

R. v. Mason (B.) (2015), 368 Nfld. & P.E.I.R. 231 (NLTD(G));

    1149 A.P.R. 231

MLB headnote and full text

Temp. Cite: [2015] Nfld. & P.E.I.R. TBEd. JL.006

Her Majesty the Queen v. Bernard Mason

(201401G8334; 2015 NLTD(G) 93)

Indexed As: R. v. Mason (B.)

Newfoundland and Labrador Supreme Court

Trial Division (General)

Orsborn, J.

June 30, 2015.

Summary:

Mason was found guilty of refusal to comply with a demand pursuant to s. 254(2)(b) of the Criminal Code that he provide a breath sample for analysis by an approved screening device. Mason appealed his conviction.

The Newfoundland and Labrador Supreme Court, Trial Division (General), dismissed the appeal.

Civil Rights - Topic 4610

Right to counsel - General - Impaired driving (incl. demand for breath or blood sample) - Mason was found guilty of refusal to comply with a demand pursuant to s. 254(2)(b) of the Criminal Code that he provide a breath sample for analysis by an approved screening device - Mason appealed his conviction - He argued that the trial judge erred in finding that his Charter right to counsel had not been breached, and in failing to find that, because of the passage of time, the demand became unlawful - There was no issue raised at trial as to the validity of the demand - The argument was that the passage of time, time during which Mason had the opportunity to contact counsel, led to the expiry or death of the demand - The Newfoundland and Labrador Supreme Court, Trial Division (General), stated that "In his ruling on the Charter application, the trial judge found that the demand had been lawfully made. At that point the s. 10(b) right to counsel was abrogated. ... Once it has been determined that the demand is valid, for the purposes of a ss. 254(5) refusal analysis, the passage of time following the demand does not serve to somehow invalidate the demand and revive the right to counsel, at least insofar as the passage of time may be attributed to the actions or non-actions of the accused. ... The loss of the right to consult counsel was authorized by the proper and constitutional operation of ss. 254(2). The fact that Mason in fact contacted one counsel and attempted to contact another gave him no legal recourse in the face of a valid demand. Accordingly, the trial judge made no legal error in finding that Mason's Charter rights had not been violated, although I would have arrived at that conclusion by a different process of reasoning" - See paragraphs 57 to 75.

Civil Rights - Topic 8590.1

Canadian Charter of Rights of Freedoms - Practice - Voir dire - Procedure - Mason was found guilty of refusal to comply with a demand that he provide a breath sample for analysis by an approved screening device - Mason appealed his conviction - The Newfoundland and Labrador Supreme Court, Trial Division (General), found that the trial judge erred in law by finding, in the course of his ruling on a blended voir dire Charter application, that Mason had in fact refused the demand to provide a breath sample - The court stated that "Unless a pre-trial application brought by counsel for an accused puts in issue an element of the offence - as occurred here with the validity of the demand - it is not appropriate for a trial judge to make a finding on an element of the offence until all of the evidence has been heard" - However, the court was satisfied that the error did not lead to any substantial wrong or miscarriage of justice - The fact of a refusal was acknowledged - Mason suffered no prejudice on account of the trial judge having made a finding of refusal during the voir dire - See paragraphs 45 to 56 and 85 to 88.

Criminal Law - Topic 1386.1

Offences against person and reputation - Motor vehicles - Impaired driving - Roadside screening test - Demand - [See Civil Rights - Topic 4610 ].

Criminal Law - Topic 1386.3

Motor vehicles - Impaired driving - Roadside screening test - Refusal - Mason was found guilty of refusal to comply with a demand pursuant to s. 254(2)(b) of the Criminal Code that he provide a breath sample for analysis by an approved screening device - Mason appealed his conviction - He argued that the trial judge made an unreasonable finding of fact and engaged in illogical reasoning by purporting to look at the entire "transaction" after having found the refusal to have taken place shortly after the demand - The Newfoundland and Labrador Supreme Court, Trial Division (General), stated that "The trial judge was entitled to look at the entire sequence of events, from the demand to the laying of the refusal charge in order to determine whether there had been a clear and unequivocal refusal of the demand. ... The trial judge is entitled to deference on his finding of a clear and unequivocal refusal. There was no palpable and overriding error in his conclusion. It was amply supported by the evidence. Neither did he commit any error through, as asserted by counsel, illogical reasoning by assessing the entire transaction after having concluded on the voir dire that the refusal was early in the sequence of events. In the unusual circumstances of this case and in the manner in which the case was argued by Mason's counsel, it was to be expected that, once Mason had testified concerning his refusal or lack of it, the trial judge would again refer to the element of refusal. In considering the issue at the conclusion of the trial, the judge was entitled to consider the entire sequence of events" - See paragraphs 76 to 84.

Criminal Law - Topic 5214.9

Evidence and witnesses - Admissibility and relevancy - Voir dire - General - [See Civil Rights - Topic 8590.1 ].

Cases Noticed:

R. v. Brodersen (C.M.), [2012] A.R. Uned. 615; 2012 ABPC 231, refd to. [para. 31].

R. v. Boston (R.) (2013), 309 O.A.C. 24; 2013 ONCA 498, refd to. [para. 33].

R. v. Furlong (L.) (2012), 323 Nfld. & P.E.I.R. 77; 1004 A.P.R. 77; 2012 NLCA 29, refd to. [para. 34].

R. v. Kutynec (1992), 52 O.A.C. 59; 7 O.R.(3d) 277 (C.A.), refd to. [para. 36].

R. v. Quansah (P.) (2012), 287 O.A.C. 383; 2012 ONCA 123, refd to. [para. 42, footnote 1].

R. v. Hurdman (R.D.) (2003), 340 A.R. 239; 2003 ABQB 202, refd to. [para. 42, footnote 1].

R. v. Grant, [1991] 3 S.C.R. 139; 130 N.R. 250; 93 Nfld. & P.E.I.R. 181; 292 A.P.R. 181, consd. [para. 42, footnote 1].

R. v. Cote (1992), 54 O.A.C. 281; 6 O.R.(3d) 667; 70 C.C.C.(3d) 280 (C.A.), refd to. [para. 42, footnote 1].

R. v. Woods (J.C.), [2005] 2 S.C.R. 205; 336 N.R. 1; 195 Man.R.(2d) 131; 351 W.A.C. 131; 2005 SCC 42, refd to. [para. 42, footnote 1].

R. v. Megahy (J.) (2008), 432 A.R. 223; 424 W.A.C. 223; 2008 ABCA 207, refd to. [para. 42, footnote 1].

R. v. Komenda (K.C.), [2012] B.C.T.C. Uned. 536; 2012 BCSC 536, refd to. [para. 42, footnote 1].

R. v. Collings, [1980] B.C.J. No. 13039 (Co. Ct.), refd to. [para. 42, footnote 1].

R. v. Gillis, 2008 BCPC 387, refd to. [para. 42, footnote 1].

R. v. Nguyen, 2007 ONCJ 130, refd to. [para. 42, footnote 1].

R. v. Delarm (S.), [2013] O.T.C. Uned. 975; 2013 ONSC 975, refd to. [para. 42, footnote 1].

R. v. Swizter, [1993] B.C.J. No. 728 (Prov. Ct.), refd to. [para. 42, footnote 1].

R. v. Redstar (S.D.), [2009] A.R. Uned. 255; 2009 ABPC 79, refd to. [para. 42, footnote 1].

R. v. Jacobson (J.R.), [2002] B.C.T.C. Uned. 736; 2002 BCSC 651, refd to. [para. 42, footnote 1].

R. v. Sidhu, 2013 ONCJ 131, refd to. [para. 42, footnote 1].

R. v. Bleta (E.), [2012] O.T.C. Uned. 1235; 258 C.C.C.(3d) 261; 2012 ONSC 1235, consd. [para. 42, footnote 1].

R. v. Degiorgio (T.) (2011), 279 O.A.C. 386; 2011 ONCA 527, disagreed with [para. 42, footnote 1].

R. v. Pierman (M.B.) (1994), 73 O.A.C. 287; 19 O.R.(3d) 704 (C.A.), refd to. [para. 42, footnote 1].

R. v. Caswell (J.A.) (2015), 599 A.R. 254; 643 W.A.C. 254; 2015 ABCA 97, refd to. [para. 42, footnote 1].

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. 42, footnote 1].

Statutes Noticed:

Canadian Charter of Rights and Freedoms, 1982, sect. 10(b) [para. 5].

Criminal Code, R.S.C. 1985, c. C-46, sect. 254(2) [para. 3].

Counsel:

Kathleen O'Reilly, for the Crown;

Jeremy de Jong, for the accused.

This appeal was heard on June 15, 2015, at St. John's, N.L., before Orsborn, J., of the Newfoundland and Labrador Supreme Court, Trial Division (General), who delivered the following decision on June 30, 2015.