R. v. Mockler (A.L.), (2014) 422 N.B.R.(2d) 264 (TD)

Judge:Clendening, J.
Court:Court of Queen's Bench of New Brunswick
Case Date:June 02, 2014
Jurisdiction:New Brunswick
Citations:(2014), 422 N.B.R.(2d) 264 (TD);2014 NBQB 175
 
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R. v. Mockler (A.L.) (2014), 422 N.B.R.(2d) 264 (TD);

    422 R.N.-B.(2e) 264; 1096 A.P.R. 264

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Temp. Cite: [2014] N.B.R.(2d) TBEd. JL.048

Renvoi temp.: [2014] N.B.R.(2d) TBEd. JL.048

Alan Lawrence Mockler (appellant) v. Her Majesty the Queen (respondent)

(F-CRA-4-2013; 2014 NBQB 175; 2014 NBBR 175)

Indexed As: R. v. Mockler (A.L.)

Répertorié: R. v. Mockler (A.L.)

New Brunswick Court of Queen's Bench

Trial Division

Judicial District of Fredericton

Clendening, J.

July 11, 2014.

Summary:

Résumé:

The accused appealed his conviction for impaired driving.

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

Criminal Law - Topic 1362

Motor vehicles - Impaired driving - Evidence and proof - The accused was about to drive with his 11 year old stepson (Doiron) and the stepson's 11 year old friend (Hickey) from a lake to the accused's house - Hickey testified that he and Doiron were concerned that the accused had been drinking and they made him count to 10 to ensure that he was alright to drive - Hickey testified that the accused drove 120 km/hr on a two-lane back road to the Trans-Canada Highway and then sped up to 195 km/hr - He stated that after they stopped to put the car's roof up, the accused "stomped on it" going "full throttle" and that they were doing 200 km/hr when they went around a turn and the vehicle struck a guardrail - He claimed that the accused told him and Doiron to lie and say that they were travelling at normal speeds - Hickey admitted that at the time of the accident he told Doiron's mother that they had not been speeding and that he subsequently gave a police statement in which he said that they were travelling between 160 and 190 km/hr - The two witnesses who were first on the scene smelled alcohol on the accused and one testified to an overwhelming smell of alcohol in the accused's vehicle - An off duty police officer noted the smell of alcohol on the accused but did not note any physical symptoms - Another police officer noted a slight slur in the accused's speech and a fumbling for documents - A paramedic, a nurse and Doiron's mother testified that there was no alcohol smell or symptoms of impairment - Doiron testified that he saw no indication that the accused had been drinking and that they hydroplaned after hitting a puddle while travelling at 60 km/hr - An expert report indicated that the vehicle might have hydroplaned - The trial judge accepted Hickey's evidence of impairment and driving at a very high speed - Based on that evidence coupled with the single vehicle accident and the testimony of the witnesses who first arrived at the scene, the judge convicted the accused of impaired driving - The New Brunswick Court of Queen's Bench, Trial Division, affirmed the conviction - The trial judge placed substantial weight on Hickey's evidence and explained why she found his evidence to be credible - She was alive to all of the issues respecting a child witness, the evidence respecting the unexplained accident, the evidence of alcohol consumption, the totality of the evidence and the need to assess credibility - See paragraphs 37 to 57.

Criminal Law - Topic 5462

Evidence and witnesses - Evidence of children - Credibility - [See Criminal Law - Topic 1362 ].

Droit criminel - Cote 1362

Infractions contre la personne et la réputation - Véhicules à moteur - Capacité de conduite affaiblie - Preuve - [Voir Criminal Law - Topic 1362 ].

Droit criminel - Cote 5462

Preuve et témoins - Témoignage d'enfants - Crédibilité - [Voir Criminal Law - Topic 5462 ].

Cases Noticed:

R. v. Andrews (M.A.) (1996), 178 A.R. 182; 110 W.A.C. 182 (C.A.), refd to. [para. 33].

R. v. Stellato (T.) (1993), 61 O.A.C. 217; 78 C.C.C.(3d) 380 (C.A.), refd to. [para. 33].

R. v. Tavone (A.), [2007] O.T.C. Uned. H19 (Sup. Ct.), refd to. [para. 38].

R. v. Rhyason (B.P.) (2007), 365 N.R. 200; 412 A.R. 282; 404 W.A.C. 282; 2007 SCC 39, refd to. [para. 43].

R. v. Goodwin, 2010 NBQB 358, refd to. [para. 48].

R. v. R.W., [1992] 2 S.C.R. 122; 137 N.R. 214; 54 O.A.C. 164, refd to. [para. 48].

R. v. Clark (D.M.), [2005] 1 S.C.R. 6; 329 N.R. 10; 208 B.C.A.C. 6; 344 W.A.C. 6; 2005 SCC 2, refd to. [para. 50].

R. v. Vuradin (F.) (2013), 446 N.R. 53; 553 A.R. 1; 583 W.A.C. 1; 298 C.C.C.(3d) 139; 2013 SCC 38, refd to. [para. 51].

R. v. Randall (C.) (2012), 393 N.B.R.(2d) 217; 1017 A.P.R. 217; 2012 NBCA 25, refd to. [para. 52].

R. v. Wilson (B.S.) (2013), 412 N.B.R.(2d) 100; 1070 A.P.R. 100; 2013 NBCA 38, refd to. [para. 55].

R. v. Doiron (P.) (2013), 405 N.B.R.(2d) 22; 1050 A.P.R. 22; 2013 NBCA 31, refd to. [para. 55].

Counsel:

Avocats:

Alan D. Gold, for the appellant;

Claude A. Haché, for the respondent.

This appeal was heard on June 2, 2014, by Clendening, J., of the New Brunswick Court of Queen's Bench, Trial Division, Judicial District of Fredericton, who delivered the following judgment on July 11, 2014.

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