R. v. Rowe (H.), (2013) 339 Nfld. & P.E.I.R. 79 (NLTD(G))

• Judge: Whalen, J.
• Court: Supreme Court of Newfoundland and Labrador (Canada)
• Case Date: March 19, 2013
• Jurisdiction: Newfoundland and Labrador
• Citations: (2013), 339 Nfld. & P.E.I.R. 79 (NLTD(G))

R. v. Rowe (H.) (2013), 339 Nfld. & P.E.I.R. 79 (NLTD(G));

    1054 A.P.R. 79

MLB headnote and full text

Temp. Cite: [2013] Nfld. & P.E.I.R. TBEd. JL.010

Harvey Rowe (appellant) v. Her Majesty the Queen (respondent)

(201005G0169; 2013 NLTD(G) 101)

Indexed As: R. v. Rowe (H.)

Newfoundland and Labrador Supreme Court

Trial Division (General)

Whalen, J.

June 28, 2013.

Summary:

The accused was convicted of having care or control of a motor vehicle while having an excessive blood-alcohol level, contrary to s. 253(b) of the Criminal Code. He was also convicted of an offence that he, while being at large on an undertaking, failed to attend court, contrary to s. 145(2)(a) of the Code. The accused appealed the convictions.

The Newfoundland and Labrador Supreme Court, Trial Division (General), allowed the appeal and entered acquittals on both charges.

Civil Rights - Topic 1410.3

Security of the person - Law enforcement - Excessive force (incl. assault) - [See Civil Rights - Topic 8584 ].

Civil Rights - Topic 8584

Canadian Charter of Rights and Freedoms - Practice - Time for raising Charter issues - The accused appealed from his convictions for having care or control of a motor vehicle while having an excessive blood-alcohol level and failing to attend court - The accused argued, inter alia, that his s. 7 Charter rights were violated when he was forcibly removed from an RCMP vehicle - That issue was not raised at trial - The Newfoundland and Labrador Supreme Court, Trial Division (General), held that the accused did not meet the two hurdles that had to be overcome before Charter issues could be raised for the first time on appeal - First, the Charter issue had to not be an issue which the defence could have raised at trial, but chose not to - The circumstances surrounding the accused's removal from the police vehicle were very much a live issue at trial - He therefore did not overcome the first hurdle to now present this issue on appeal - The accused also did not overcome the second hurdle where the record in the case at bar would be insufficient for the accused's Charter issue to be explored - In any event, when the court looked at the evidence surrounding the police handling of the accused on the night in question, it could not be said that the police actions were outrageous or excessive - A review of the evidence surrounding the tazering of the accused showed clear justification on the part of the police - The police were faced with an angry, abusive person who was resisting all efforts by the officers, which ultimately resulted in the use of a tazer - The degree of force used was not unreasonable - There was no breach of the accused s. 7 Charter rights - See paragraphs 64 to 76.

Criminal Law - Topic 536

Offences against the administration of law and justice - Escapes and rescues - Failure to attend - The accused appealed his conviction for an offence that he, while being at large on an undertaking, failed to attend court, contrary to s. 145(2)(a) of the Criminal Code - The accused argued that the evidence of Cpl. Blackwood that the accused was not in court on September 4, 2007, was insufficient proof of that fact and more was required to ground or prove that finding - The Newfoundland and Labrador Supreme Court, Trial Division (General), rejected that argument - The officer was available for cross-examination - The accused was given the opportunity to test the veracity of the facts as stated by the officer - Without any contributory evidence, the court did not see any palpable and overriding error in accepting the officer's testimony that the accused was not in court as proof of that fact - However, the court considered that the trial transcript was absent of any evidence to prove that the accused was obligated to appear on September 4, 2007, pursuant to an undertaking or recognizance - No evidence was presented by the Crown to prove that element of the offence - That amounted to a palpable and overriding error by the trial judge - On the whole of the evidence, and specifically in the absence of any evidence of an undertaking or recognizance by the accused to appear, a properly instructed jury, acting judicially, could not reasonably render a verdict of guilty for the s. 145(1)(a) offence - Such a verdict was unsupported by the evidence and an acquittal had to be entered - See paragraphs 20 to 34.

Criminal Law - Topic 1376

Offences against person and reputation - Motor vehicles - Impaired driving - Breathalyzer or blood sample - Proof of blood-alcohol content - The accused (Rowe) appealed from his conviction for having care or control of a motor vehicle while having an excessive blood-alcohol level - Since the breath test was administered more than two hours after the accused was in care and control of the vehicle, the Crown had called a toxicologist who provided expert evidence relating the breathalyzer readings back to the time of care and control at 12:08 a.m. - The toxicologist's extrapolations were based on a number of assumptions, including her assumption that no alcohol was consumed by the accused in the half hour prior to 12:08 a.m. - The Newfoundland and Labrador Supreme Court, Trial Division (General), allowed the accused's appeal and entered an acquittal - The court stated that "When carefully considering the circumstantial evidence in the case at bar, we have containers of alcohol in the vehicle, a smell of alcohol coming from the accused, obvious signs of impairment, the vehicle is off the road in a ditch and no statement from the accused on which the Crown can rely as to when Mr. Rowe last nor how much he drank nor any observations of him in the thirty minutes prior to being in care and control to say he had not consumed alcohol. . ... While the modern approach to the Crown's burden does not require a great deal of circumstantial evidence combined with the common sense inference of a normal drinking pattern by individuals to undermine the theory of bolus drinking, in this case the circumstantial evidence is to the contrary. ... it is for the Crown to prove the facts that the expert's opinion is based upon, including no bolus drinking. ... the Crown failed to prove beyond a reasonable doubt that there was no consumption of significant quantities of alcohol within the 30 minutes prior to the accused being in care and control. In other words, there was reasonable doubt that the appellant's absorption of alcohol at the time of the alleged offence was over the legal limit" - Without the expert opinion, a properly instructed jury, acting judicially, could not reasonably conclude that the Crown had proven the charge against the accused - The verdict was unsupported by the evidence - See paragraphs 35 to 63.

Criminal Law - Topic 7470

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

Criminal Law - Topic 7659

Summary conviction proceedings - Appeals - Grounds - Verdict unreasonable or unsupported by evidence - [See Criminal Law - Topic 536 and Criminal Law - Topic 1376 ].

Evidence - Topic 7012

Opinion evidence - Expert evidence - Basis for opinion - [See Criminal Law - Topic 1376 ].

Police - Topic 3065

Powers - Arrest and detention - Use of excessive force - [See Civil Rights - Topic 8584 ].

Police - Topic 3078.1

Powers - Arrest and detention - Tasers - Use of - [See Civil Rights - Topic 8584 ].

Cases Noticed:

R. v. Corbett, [1975] 2 S.C.R. 275; 1 N.R. 258; 14 C.C.C.(2d) 385, refd to. [para. 9].

R. v. Yebes, [1987] 2 S.C.R. 168; 78 N.R. 351, refd to. [para. 10].

R. v. Biniaris (J.), [2000] 1 S.C.R. 381; 252 N.R. 204; 134 B.C.A.C. 161; 219 W.A.C. 161; 2000 SCC 15, refd to. [para. 11].

R. v. R.P., [2012] 1 S.C.R. 746; 429 N.R. 361; 2012 SCC 22, refd to. [para. 12].

R. v. Harper, [1982] 1 S.C.R. 2; 40 N.R. 255; 65 C.C.C.(2d) 193, refd to. [para. 13].

Housen v. Nikolaisen et al., [2002] 2 S.C.R. 235; 286 N.R. 1; 219 Sask.R. 1; 272 W.A.C. 1; 2002 SCC 33, refd to. [para. 15].

Furlong Estate v. Newfoundland Light & Power Co. (2005), 247 Nfld. & P.E.I.R. 65; 735 A.P.R. 65; 2005 NLCA 25, refd to. [para. 16].

Green v. Green (2005), 247 Nfld. & P.E.I.R. 82; 735 A.P.R. 82; 2005 NLCA 29, refd to. [para. 16].

R. v. Myles (C.R.) (2005), 250 Nfld. & P.E.I.R. 55; 746 A.P.R. 55; 2005 NLTD 138, refd to. [para. 16].

R. v. Devereaux (A.) (2012), 325 Nfld. & P.E.I.R. 296; 1009 A.P.R. 296; 2012 NLTD(G) 2, refd to. [para. 16].

R. v. Pretty - see R. v. B.C.P.

R. v. B.C.P. (2012), 326 Nfld. & P.E.I.R. 118; 1012 A.P.R. 118; 2012 NLTD(G) 98, refd to. [para. 16].

Taylor v. Ankenman and Jaegli Enterprises Ltd., [1981] 2 S.C.R. 2; 40 N.R. 4, refd to. [para. 17].

Schreibner Brothers Ltd. v. Currie Products Ltd. and Gulf Oil Canada Ltd., [1980] 2 S.C.R. 78; 31 N.R. 335, refd to. [para. 17].

Stein Estate v. Ship Kathy K, [1976] 2 S.C.R. 802; 6 N.R. 359, refd to. [para. 17].

Lewis v. Todd et al., [1980] 2 S.C.R. 694; 34 N.R. 1, refd to. [para. 17].

R. v. Grosse (P.) (1996), 91 O.A.C. 40; 107 C.C.C.(3d) 97 (C.A.), consd. [para. 45].

R. v. Hall (S.) (2007), 219 O.A.C. 251; 41 M.V.R.(5th) 8; 2007 ONCA 8, refd to. [para. 48].

R. v. McLean (P.S.) (2010), 290 B.C.A.C. 75; 491 W.A.C. 75; 96 M.V.R.(5th) 73; 2010 BCCA 341, refd to. [para. 49].

R. v. Shoemaker (J.J.) (2011), 261 Man.R.(2d) 182; 10 M.V.R.(6th) 73; 2011 MBPC 15, refd to. [para. 50].

R. v. Waterman (N.) (2000), 194 Nfld. & P.E.I.R. 317; 584 A.P.R. 317 (Nfld. T.D.), refd to. [para. 67].

R. v. Ryan (1992), 54 O.A.C. 379; 12 C.R.(4th) 173 (C.A.), refd to. [para. 70].

Statutes Noticed:

Canadian Charter of Rights and Freedoms, 1982, sect. 7 [para. 66].

Criminal Code, R.S.C. 1985, c. C-46, sect. 145(2)(a) [para. 21].

Counsel:

Peter Ralph, Q.C., for the appellant;

Jerred Moore, for the respondent.

This appeal was heard on March 19, 2013, at Gander, N.L., before Whalen, J., of the Newfoundland and Labrador Supreme Court, Trial Division (General), who delivered the following decision on June 28, 2013.