R. v. Spin (R.), (2011) 307 N.S.R.(2d) 344 (CA)

• Judge: Fichaud, Beveridge and Farrar, JJ.A.
• Court: Court of Appeal of Nova Scotia (Canada)
• Case Date: Wednesday May 18, 2011
• Jurisdiction: Nova Scotia
• Citations: (2011), 307 N.S.R.(2d) 344 (CA);2011 NSCA 80

R. v. Spin (R.) (2011), 307 N.S.R.(2d) 344 (CA);

    975 A.P.R. 344

MLB headnote and full text

Temp. Cite: [2011] N.S.R.(2d) TBEd. SE.040

Rudolph Spin (appellant) v. Her Majesty the Queen (respondent)

(CAC 339874; 2011 NSCA 80)

Indexed As: R. v. Spin (R.)

Nova Scotia Court of Appeal

Fichaud, Beveridge and Farrar, JJ.A.

September 15, 2011.

Summary:

The accused was convicted of driving while having an excessive blood-alcohol level. He appealed.

The Nova Scotia Court of Appeal allowed the appeal, ordering a new trial.

Civil Rights - Topic 3604

Detention and imprisonment - Detention - What constitutes detention - [See Civil Rights - Topic 4604 ].

Civil Rights - Topic 4604

Right to counsel - General - Denial of or interference with - What constitutes - Spin was the driver of a vehicle that struck another vehicle head on at approximately 6:30 p.m. - Spin left the scene of the accident at 7:22 p.m. - An officer attended at Spin's home and started taking a statement from him regarding the accident at 7:50 p.m. - They discussed breathalyzer testing - At 8:37 p.m., in the officer's patrol vehicle just outside of the residence, the officer made an approved screening device demand - Spin registered a "fail" - Six minutes later, the officer informed Spin of his right to counsel and made a breathalyzer demand - At his trial on impaired driving charges, Spin sought exclusion of the breathalyzer results, asserting, inter alia, a violation of his right to counsel (Charter, s. 10(b)) - The trial judge found no s. 10(b) violation and convicted Spin of driving while having an excessive blood-alcohol level - The Nova Scotia Court of Appeal allowed Spin's appeal, ordering a new trial - When he was in the police car, Spin was detained within the meaning of s. 10(b) - The Crown appropriately conceded that the failure to comply with the informational and other duties triggered by that detention was a violation of s. 10(b) - The trial judge had erred in failing to find such a violation - While the court had the jurisdiction to carry out the analysis under s. 24(2) as to whether the breathalyzer results were admissible, it declined to do so here in the absence of a sufficient record - A new trial was the appropriate remedy - See paragraphs 51 to 70.

Civil Rights - Topic 4609.1

Right to counsel - General - Duty of police investigators (incl. undercover officers) - [See Civil Rights - Topic 4604 ].

Civil Rights - Topic 4610

Right to counsel - General - Impaired driving (incl. demand for breath or blood sample) - [See Civil Rights - Topic 4604 ].

Civil Rights - Topic 8380.20

Canadian Charter of Rights and Freedoms - Denial of rights - Remedies - New trial - [See Civil Rights - Topic 4604 ].

Criminal Law - Topic 1362

Offences against person and reputation - Motor vehicles - Impaired driving - Evidence and proof - The accused was convicted of driving while having an excessive blood-alcohol level - On appeal, he asserted that the trial judge had erred in accepting the evidence of a forensic alcohol specialist called by the Crown as an expert in order to extrapolate the accused's blood-alcohol level at the time when he was involved in an accident - The specialist based her calculation on the assumption that the vodka that the accused had consumed prior to the accident was 40% alcohol by volume - The Nova Scotia Court of Appeal rejected this ground of appeal - While it might have been clearer had the Crown established the brand of vodka or its alcohol concentration, there was no error by the trial judge in relying on the specialist's opinion - The reasonable inference to be drawn from the specialist's evidence was that commercially available vodka was 40% alcohol by volume - There was no evidence that the vodka consumed here was anything other than one that was commercially available - The trial judge was entitled to rely on the specialist's opinion, including her reliance on 40% as the appropriate alcohol percentage - See paragraphs 30 to 50.

Criminal Law - Topic 4983.1

Appeals - Indictable offences - Powers of Court of Appeal - Power to order new trial - [See Civil Rights - Topic 4604 ].

Evidence - Topic 7009

Opinion evidence - Expert evidence - General - Proof of assumptions - [See Criminal Law - Topic 1362 ].

Cases Noticed:

R. v. White (J.K.), [1999] 2 S.C.R. 417; 240 N.R. 1; 123 B.C.A.C. 161; 201 W.A.C. 161, refd to. [para. 8].

R. v. Woods (J.C.) (2005), 336 N.R. 1; 195 Man.R.(2d) 131; 351 W.A.C. 131; 2005 SCC 42, refd to. [para. 26].

R. v. Boudreau (G.A.) (2009), 278 N.S.R.(2d) 76; 886 A.P.R. 76; 2009 NSPC 26, refd to. [para. 28].

R. v. Liddell, 2008 BCPC 143, refd to. [para. 28].

R. v. Grant (D.) (2009), 391 N.R. 1; 253 O.A.C. 124; 2009 SCC 32, refd to. [para. 54].

R. v. R.E.W. (2011), 298 N.S.R.(2d) 154; 945 A.P.R. 154; 2011 NSCA 18, refd to. [para. 56].

R. v. Thomsen, [1988] 1 S.C.R. 640; 84 N.R. 347; 27 O.A.C. 85, refd to. [para. 57].

R. v. George (N.) (2004), 189 O.A.C. 161; 187 C.C.C.(3d) 289 (C.A.), refd to. [para. 60].

R. v. Reddy (C.J.) (2010), 282 B.C.A.C. 51; 476 W.A.C. 51; 2010 BCCA 11, refd to. [para. 63].

R. v. Strilec (J.J.) (2010), 286 B.C.A.C. 171; 484 W.A.C. 171; 2010 BCCA 198, refd to. [para. 63].

R. v. Caputo (E.) (1997), 98 O.A.C. 30; 114 C.C.C.(3d) 1 (C.A.), refd to. [para. 63].

R. v. Squires (E.) (2005), 249 Nfld. & P.E.I.R. 14; 743 A.P.R. 14; 2005 NLCA 51, refd to. [para. 63].

R. v. Chehil (M.S.) (2009), 284 N.S.R.(2d) 130; 901 A.P.R. 130; 2009 NSCA 111, refd to. [para. 63].

R. v. U.P.M. (2010), 399 N.R. 200; 346 Sask.R. 1; 477 W.A.C. 1; 2010 SCC 8, refd to. [para. 63].

R. v. Timmons (W.T.) (2011), 303 N.S.R.(2d) 91; 957 A.P.R. 91; 2011 NSCA 39, refd to. [para. 63].

Counsel:

Michael S. Taylor, for the appellant;

William D. Delaney, for the respondent.

This appeal was heard at Halifax, Nova Scotia, on May 18, 2011, by Fichaud, Beveridge and Farrar, JJ.A., of the Nova Scotia Court of Appeal. On September 15, 2011, Beveridge, J.A., delivered the following reasons for judgment for the court.