R. v. Munn (D.R.), (2010) 353 N.B.R.(2d) 318 (TD)

• Judge: Walsh, J.
• Court: Court of Queen's Bench of New Brunswick (Canada)
• Case Date: January 25, 2010
• Jurisdiction: New Brunswick
• Citations: (2010), 353 N.B.R.(2d) 318 (TD);2010 NBQB 29

R. v. Munn (D.R.) (2010), 353 N.B.R.(2d) 318 (TD);

    353 R.N.-B.(2e) 318; 910 A.P.R. 318

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Temp. Cite: [2010] N.B.R.(2d) TBEd. FE.011

Renvoi temp.: [2010] N.B.R.(2d) TBEd. FE.011

Douglas Ransford Munn v. Her Majesty the Queen

(S/A/4/09; 2010 NBQB 29; 2010 NBBR 29)

Indexed As: R. v. Munn (D.R.)

Répertorié: R. v. Munn (D.R.)

New Brunswick Court of Queen's Bench

Trial Division

Judicial District of Saint John

Walsh, J.

January 25, 2010.

Summary:

Résumé:

The accused appealed from his conviction for impaired driving.

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

Civil Rights - Topic 8584

Canadian Charter of Rights and Freedoms - Practice - Time for raising Charter issues - The accused appealed from his conviction for impaired driving - His grounds of appeal amounted to a complaint that the trial judge erred in finding that the arresting officer had reasonable and probable grounds upon which to base his opinion that the accused's ability to operate a motor vehicle was impaired by alcohol or a drug - In the accused's written argument, those grounds of appeal were transformed into a constitutional challenge, alleging a breach of the accused's ss. 8 and 9 Charter rights and seeking relief under s. 24(2) of the Charter - The New Brunswick Court of Queen's Bench, Trial Division, declined to entertain the Charter argument as it was not properly raised in the court below and was never actually argued - Even if the argument could be considered to have been raised given that a Notice of Motion seeking Charter relief was filed, it was implicitly withdrawn at the outset of the trial both in terms of what defence counsel said to the court and in terms of the fact that it was never mentioned again - It was obvious from the transcript of the trial proceedings that there was not a sufficient evidentiary record upon which to resolve the Charter issues - No miscarriage of justice would result from declining to entertain the accused's constitutional argument, given that the evidentiary record supported the trial judge's finding that the accused's ability to operate a motor vehicle was impaired.

Criminal Law - Topic 7470

Summary conviction proceedings - Appeals - General - Restriction on arguments on appeal - [See Civil Rights - Topic 8584 ].

Droit criminel - Cote 7470

Déclarations de culpabilité par procédure sommaires - Appels - Généralités - Limitation sur les arguments présentés en appel - [Voir Criminal Law - Topic 7470 ].

Droits et libertés - Cote 8584

Charte canadienne des droits et libertés - Procédure - À quel moment invoquer la Charte - [Voir Civil Rights - Topic 8584 ].

Cases Noticed:

R. v. King (R.A.) (2008), 338 N.B.R.(2d) 163; 866 A.P.R. 163; 2008 NBCA 81, refd to. [para. 15].

R. v. Langlais (M.) (2008), 328 N.B.R.(2d) 201; 841 A.P.R. 201; 2008 NBCA 20, refd to. [para. 15].

R. v. Nguyen - see R. v. Doan (T.T.) et al.

R. v. Doan (T.T.) et al. (2007), 321 N.B.R.(2d) 282; 827 A.P.R. 282; 2007 NBCA 70, refd to. [para. 16].

R. v. Stellato (T.), [1994] 2 S.C.R. 478; 168 N.R. 190; 72 O.A.C. 140, refd to. [para. 18].

R. v. Collicott (1990), 105 N.B.R.(2d) 355; 264 A.P.R. 355 (C.A.), refd to. [para. 19].

Counsel:

Avocats:

W. Rodney Macdonald, appearing on behalf of the accused;

Patrick R. Wilbur, appearing on behalf of the Crown.

This appeal was heard on January 25, 2010, before Walsh, J., of the New Brunswick Court of Queen's Bench, Trial Division, Judicial District of Saint John, who delivered the following oral decision on the same date.