R. v. Thorburn (D.A.), (2001) 192 N.S.R.(2d) 290 (ProvCt)

• Judge: Williams, P.C.J.
• Court: Provincial Court of Nova Scotia (Canada)
• Case Date: March 13, 2001
• Jurisdiction: Nova Scotia
• Citations: (2001), 192 N.S.R.(2d) 290 (ProvCt);2001 NSPC 3

R. v. Thorburn (D.A.) (2001), 192 N.S.R.(2d) 290 (ProvCt);

 599 A.P.R. 290

MLB headnote and full text

Temp. Cite: [2001] N.S.R.(2d) TBEd. MR.029

R. v. Donald Anthony Thorburn

(953527/953528; 2001 NSPC 3)

Indexed As: R. v. Thorburn (D.A.)

Nova Scotia Provincial Court

Williams, P.C.J.

March 13, 2001.

Summary:

The accused was charged with impaired driving and driving a motor vehicle while having an excessive blood-alcohol content. The accused submitted, inter alia, that the breath samples were not taken "as soon as practicable" as required by s. 254(3) of the Criminal Code.

The Nova Scotia Provincial Court found the accused guilty of driving while having an excessive blood-alcohol content. The court was satisfied that the breath samples were taken "as soon as practicable". The court acquitted the accused of impaired driving.

Criminal Law - Topic 1374

Motor vehicles - Impaired driving - Breathalyzer or blood sample - Evidence and certificate evidence - The accused was stopped at 2:25 a.m. and was forthwith given an ALERT demand, which he com­plied with and failed - At 2:35 he was given a breathalyzer demand and advised of his Charter rights - He was transported to the police station and turned over to a breathalyzer technician at 3:05 - The first breath sample was taken at 3:29, 24 minutes later - The Crown witness did not explain the 24 minute delay, was not cross-examined on that point and the accused called no evidence - The accused stated that absent an explanation for the delay, the Crown failed to prove that the breath sample was taken "as soon as practicable" (Criminal Code, s. 254(3)) and the breathalyzer certificate should be excluded - The Nova Scotia Provincial Court found the accused guilty of driving while having an excessive blood-alcohol content - The 24 minute delay was not prejudicial to the accused and was not unreasonable or inor­dinate - The breath samples were taken "as soon as practicable" - Further, taking samples as soon as practicable related to relying on the presumption in s. 258(c), not the admissibility of the breathalyzer certificate (which the accused did not object to).

Cases Noticed:

R. v. Payne (1990), 38 O.A.C. 161; 56 C.C.C.(3d) 548 (C.A.), refd to. [para. 6].

R. v. Carter (1981), 9 Sask.R. 1; 59 C.C.C.(2d) 450 (C.A.), refd to. [para. 6].

R. v. Cambian, [1983] 2 W.W.R. 250; 1 C.C.C.(3d) 59; 18 M.V.R. 160 (B.C.C.A.), refd to. [para. 6].

R. v. Letford (J.) (2000), 139 O.A.C. 387; 150 C.C.C.(3d) 224 (C.A.), refd to. [para. 8].

R. v. Van Der Veen (1988), 89 A.R. 4; 44 C.C.C.(3d) 38 (C.A.), refd to. [para. 9].

R. v. Greek (G.E.) (1994), 131 N.S.R.(2d) 109; 371 A.P.R. 109 (Prov. Ct.), refd to. [para. 9].

R. v. MacLennan (J.W.) (1995), 138 N.S.R.(2d) 369; 394 A.P.R. 369 (C.A.), refd to. [para. 10].

R. v. Deruelle, [1992] 2 S.C.R. 663; 139 N.R. 56; 114 N.S.R.(2d) 1; 313 A.P.R. 1, refd to. [para. 14].

R. v. Stellato (T.) (1993), 61 O.A.C. 217; 78 C.C.C.(3d) 380 (C.A.), refd to. [para. 19].

R. v. Andrews (M.A.) (1996), 178 A.R. 182; 110 W.A.C. 182 (C.A.), refd to. [para. 19].

R. v. Hill, [1999] N.S.J. No. 276 (Prov. Ct.), refd to. [para. 19].

R. v. Lozano, [1997] N.S.J. No. 581 (Prov. Ct.), refd to. [para. 19].

Statutes Noticed:

Criminal Code, R.S.C. 1985, c. C-46, sect. 253, sect. 254(2), sect. 254(3), sect. 258(1), sect. 258(7) [para. 5].

Counsel:

R. Woodburn, for the Crown;

R. Cragg, for the accused.

This case was heard before Williams, P.C.J., of the Nova Scotia Provincial Court, who delivered the following judgment orally on March 13, 2001.