R. v. Oram (R.G.), (2015) 370 Nfld. & P.E.I.R. 291 (NLPC)

• Judge: Gorman, P.C.J.
• Court: Newfoundland and Labrador Provincial Court (Canada)
• Case Date: August 19, 2015
• Jurisdiction: Newfoundland and Labrador
• Citations: (2015), 370 Nfld. & P.E.I.R. 291 (NLPC);2015 NLPC 1313

R. v. Oram (R.G.) (2015), 370 Nfld. & P.E.I.R. 291 (NLPC);

    1153 A.P.R. 291

MLB headnote and full text

Temp. Cite: [2015] Nfld. & P.E.I.R. TBEd. AU.036

Her Majesty the Queen v. Raymond Gerald Oram

(2015 NLPC 1313A004827)

Indexed As: R. v. Oram (R.G.)

Newfoundland and Labrador Provincial Court

Gorman, P.C.J.

August 25, 2015.

Summary:

Oram was charged with having failed to comply with an approved screening device demand (Criminal Code, ss. 254(2)(b) and 254(5)). At the close of the Crown's case, Oram moved for a directed verdict. He submitted that no evidence was presented by the Crown that an "approved screening device" was utilized by the police.

The Newfoundland and Labrador Provincial Court, in a decision reported at (2015), 364 Nfld. & P.E.I.R. 1; 1136 A.P.R. 1, dismissed the application. The trial continued. Oram testified that he attempted to provide a suitable sample but had trouble breathing, and therefore the Crown had failed to prove that he had the necessary mens rea.

The Newfoundland and Labrador Provincial Court found Oram guilty as charged.

Criminal Law - Topic 1378

Motor vehicles - Impaired driving - Breathalyzer or blood sample - Excuse for refusal to provide - [See Criminal Law - Topic 1386.3 ].

Criminal Law - Topic 1386.3

Motor vehicles - Impaired driving - Roadside screening test - Refusal - The accused (Oram) was charged with having failed to comply with an approved screening device demand (Criminal Code, ss. 254(2)(b) and 254(5)) - Oram argued that he attempted to provide a suitable sample but had trouble breathing, and therefore the Crown had failed to prove that he had the necessary mens rea - The evidence established that Oram had been stopped by the police shortly after leaving a bar in which he drank at least one bottle of beer - He made seven attempts to provide a sample of breath, but failed to provide a sample suitable for analysis - The police officers described Oram as not blowing long enough, as having stopped blowing, and as not blowing directly into the screening device ("blowing over it") - The device used by the police was an approved instrument and was working properly - The Newfoundland and Labrador Provincial Court convicted Oram - "I conclude that Mr. Oram was concerned that he might register a fail if he provided a proper sample of his breath because of the close proximity between his consumption of alcohol and the administering of the screening device. I conclude that Mr. Oram purposely and willfully failed to provide a suitable sample of his breath in an attempt to avoid registering a fail." - See paragraphs 37 to 42.

Criminal Law - Topic 1386.4

Motor vehicles - Impaired driving - Roadside screening test - Evidence and proof (incl. whether device approved, calibration records, etc.) - [See Criminal Law - Topic 1386.3 ].

Criminal Law - Topic 5229

Evidence and witnesses - Burden of proof - Proof of exception, exemption, excuse or qualification - [See Criminal Law - Topic 1386.3 ].

Cases Noticed:

R. v. Moser (1992), 53 O.A.C. 145; 71 C.C.C.(3d) 165 (C.A.), refd to. [para. 20].

R. v. Lewko (G.L.) (2002), 227 Sask.R. 77; 287 W.A.C. 77; 169 C.C.C.(3d) 359; 2002 SKCA 121, refd to. [para. 20].

R. v. Goleski (G.A.) (2014), 352 B.C.A.C. 142; 601 W.A.C. 142; 2015 BCCA 80, affd. (2015), 467 N.R. 1; 365 B.C.A.C. 1; 627 W.A.C. 1; 2015 SCC 6, refd to. [paras. 20, 21].

R. v. Sheehan, [2003] N.J. No. 57; 35 M.V.R.(4th) 61 (N.L. Prov. Ct.), refd to. [para. 22].

R. v. J.K. (2015), 365 Nfld. & P.E.I.R. 53; 1138 A.P.R. 53; 2015 NLCA 14, refd to. [para. 28].

R. v. Lifchus (W.), [1997] 3 S.C.R. 320; 216 N.R. 215; 118 Man.R.(2d) 218; 149 W.A.C. 218, refd to. [para. 29].

R. v. Starr (R.D.), [2000] 2 S.C.R. 144; 258 N.R. 250; 148 Man.R.(2d) 161; 224 W.A.C. 161, refd to. [para. 29].

R. v. J.M.H., [2011] 3 S.C.R. 197; 421 N.R. 76; 283 O.A.C. 379; 2011 SCC 45, refd to. [para. 29].

R. v. D.W., [1991] 1 S.C.R. 742; 122 N.R. 277; 46 O.A.C. 352, refd to. [para. 30].

R. v. S.T. (2015), 319 Man.R.(2d) 22; 638 W.A.C. 22; 2015 MBCA 36, refd to. [para. 31].

R. v. M.D.R., [2015] O.A.C. Uned. 283; 2015 ONCA 323, refd to. [para. 31].

R. v. Griffin (J.) et al., [2009] 2 S.C.R. 42; 388 N.R. 334; 2009 SCC 28, refd to. [para. 32].

R. v. Moose (B.A.), [2015] A.R. Uned. 38; 2015 ABCA 71, refd to. [para. 33].

R. v. Gundy (T.) (2008), 235 O.A.C. 236; 231 C.C.C.(3d) 26 (C.A.), refd to. [para. 40].

R. v. Weare (D.J.), [2005] O.J. No. 2411 (C.A.), refd to. [para. 40].

Statutes Noticed:

Criminal Code, R.S.C. 1985, c. C-46, sect. 254(2)(b) [para. 17]; sect. 254(5) [para. 16]; sect. 794(2) [para. 19].

Counsel:

A. Dwyer, for Her Majesty the Queen;

R. Ash, for Mr. Oram.

This trial was heard at Rocky Harbour and Corner Brook, Newfoundland and Labrador, on February 11, April 8, June 16 and August 19, 2015, before Gorman, P.C.J., of the Newfoundland and Labrador Provincial Court, who delivered the following judgment and reasons, dated August 25, 2015.