R. v. Rice, (1990) 86 Nfld. & P.E.I.R. 254 (NFPC)

• Judge: Goulding, P.C.J.
• Court: Newfoundland and Labrador Provincial Court (Canada)
• Case Date: July 31, 1990
• Jurisdiction: Newfoundland and Labrador
• Citations: (1990), 86 Nfld. & P.E.I.R. 254 (NFPC)

R. v. Rice (1990), 86 Nfld. & P.E.I.R. 254 (NFPC);

    268 A.P.R. 254

MLB headnote and full text

Her Majesty The Queen v. Brian Harold Rice

Indexed As: R. v. Rice

Newfoundland Provincial Court

Judicial District of Grand Falls

Goulding, P.C.J.

July 31, 1990.

Summary:

The accused was charged with refusing to provide a breath sample after being given an A.L.E.R.T. demand. The accused submitted that he made numerous attempts but the machine did not register them.

The Newfoundland Provincial Court convicted the accused.

Civil Rights - Topic 4604

Right to counsel - Denial of or interference with - What constitutes - A motorist was given an A.L.E.R.T. demand, but he failed to provide the breath sample - The motorist was charged with failing to provide the breath sample - The motorist submitted that his s. 10(b) Charter right to counsel was infringed because the police failed to inform him of his right to counsel - The Newfoundland Provincial Court observed that while the motorist's Charter right was contravened, it was a reasonable limitation provided by law as allowed by s. 1 of the Charter - See paragraph 2.

Civil Rights - Topic 4608

Right to counsel - Right to be advised of - [See Civil Rights - Topic 4604 ].

Civil Rights - Topic 4610

Right to counsel - Impaired driving - Demand for breath or blood sample - A.L.E.R.T. demand - [See Civil Rights - Topic 4604 ].

Civil Rights - Topic 8348

Canadian Charter of Rights and Freedoms - Application - Exceptions - Reasonable limits prescribed by law - Charter, s. 1 - [See Civil Rights - Topic 4604 ].

Civil Rights - Topic 8591

Canadian Charter of Rights and Freedoms - Practice - Onus or burden of proof - The Newfoundland Provincial Court stated that in cases where the accused claimed either that his Charter rights were infringed or that the admission of evidence so obtained would bring the administration of justice into disrepute, the onus was on the accused to prove the claim on the balance of probabilities - See paragraph 2.

Criminal Law - Topic 1385

Offences against person and reputation - Motor vehicles - Impaired driving - Roadside screening test - A.L.E.R.T. demand - [See Civil Rights - Topic 4604 ].

Criminal Law - Topic 1386.3

Offences against person and reputation - Motor vehicles - Impaired driving - Roadside screening test - Refusal - The accused was given an A.L.E.R.T. demand - The accused appeared to attempt to provide the breath sample between five and nine times - Two mouthpieces were used - The accused became frustrated and stated that "I don't need this shit and I'm not blowing any more" - The accused was charged with refusing to provide a breath sample - The police officer claimed the accused did not blow because the light on the machine was not activated - Also, there was no expiration of breath - The Newfoundland Provincial Court convicted the accused.

Cases Noticed:

R. v. Collins, [1987] 1 S.C.R. 265; [1987] 3 W.W.R. 699; 74 N.R. 271; 33 C.C.C.(3d) 1; 56 C.R.(3d) 193; 13 B.C.L.R.(2d) 1; 38 D.L.R.(4th) 508; 28 C.R.R. 122, appld. [para. 2].

R. v. Thomsen, [1988] 1 S.C.R. 640; 84 N.R. 347; 27 O.A.C. 85; 40 C.C.C.(3d) 411, folld. [para. 2].

R. v. Wall, [1974] 5 W.W.R. 634; 19 C.C.C.(2d) 146, consd. [para. 14].

R. v. Brotton (1983), 28 Sask.R. 78; 24 M.V.R. 76, consd. [para. 15].

R. v. Tootoosis (1988), 7 M.V.R. 133 (D.C.), consd. [para. 17].

R. v. Hurley (1980), 29 Nfld. & P.E.I.R. 263; 82 A.P.R. 263 (Nfld. C.A.), consd. [para. 18].

Statutes Noticed:

Canadian Charter of Rights and Freedoms, 1982, sect. 10 [para. 2].

Criminal Code, R.S.C. 1985, c. C-46, sect. 254(2), sect. 254(5) [para. 1].

Counsel:

Counsel not disclosed.

This matter was heard by Goulding, P.C.J., of the Newfoundland Provincial Court, Judicial District of Grand Falls, who delivered the following judgment orally on July 31, 1990.