R. v. Turnbull (R.J.), 2014 NSPC 70

• Judge: Gabriel, P.C.J.
• Court: Provincial Court of Nova Scotia (Canada)
• Case Date: June 17, 2014
• Jurisdiction: Nova Scotia
• Citations: 2014 NSPC 70;(2014), 350 N.S.R.(2d) 91 (PC)

R. v. Turnbull (R.J.) (2014), 350 N.S.R.(2d) 91 (PC);

    1105 A.P.R. 91

MLB headnote and full text

Temp. Cite: [2014] N.S.R.(2d) TBEd. SE.019

Her Majesty the Queen v. Ronald James Turnbull

(2703314; 2703315; 2014 NSPC 70)

Indexed As: R. v. Turnbull (R.J.)

Nova Scotia Provincial Court

Gabriel, P.C.J.

June 17, 2014.

Summary:

The accused was charged with impaired operation of a motor vehicle (count 1) and having care or control of a motor vehicle while his blood-alcohol content exceeded the legal limit (count 2). The accused argued that the investigating officer did not have the requisite grounds to make the approved screening device (ASD) demand, resulting in a violation of his s. 8 Charter rights. He applied for exclusion of the ASD results and the subsequent breathalyzer results pursuant to s. 24(2) of the Charter.

The Nova Scotia Provincial Court held that there was no violation of s. 8, and even if there was, it would not have excluded the evidence. The accused was found guilty of count 2 and not guilty of count 1.

Civil Rights - Topic 1217

Security of the person - Lawful or reasonable search - What constitutes unreasonable search and seizure - [See Criminal Law - Topic 1386.1 ].

Civil Rights - Topic 1404.1

Security of the person - Law enforcement - Breath or blood samples - [See Criminal Law - Topic 1386.1 ].

Civil Rights - Topic 8368

Canadian Charter of Rights and Freedoms - Denial of rights - Remedies - Exclusion of evidence - [See Criminal Law - Topic 1386.1 ].

Criminal Law - Topic 1362

Motor vehicles - Impaired driving - Evidence and proof - A police officer investigated a complaint of a car that was being driven erratically (swerving and made a U-turn) - He located the car at 1:25 a.m. - It was pulled over onto the shoulder of the road with its engine running - The driver (Turnbull) was using a cell phone, and advised the officer that he had been using the GPS on his phone to try and find his way back home to Stellarton - Turnbull admitted that he had a glass of wine with dinner earlier in the evening - The officer asked Turnbull to blow in his face and detected a "sweetish smell" - The officer made an approved screening device demand - Turnbull registered a fail - He was subsequently charged with impaired operation of a motor vehicle - The Nova Scotia Provincial Court was left with a reasonable doubt as to whether Turnbull was actually impaired while he operated his car and accordingly acquitted him of this charge - See paragraphs 1 to 9 and 46.

Criminal Law - Topic 1386.1

Motor vehicles - Impaired driving - Roadside screening test - Demand - A police officer investigated a complaint of a car that was swerving and had made a U-turn - He located the car at 1:25 a.m. - It was pulled over onto the side of the road with its engine running - The driver (Turnbull) was using a cell phone, and advised the officer that he had been using the GPS on his phone to try and find his way back home to Stellarton - Turnbull admitted that he had a glass of wine with dinner earlier in the evening - The officer formed a suspicion that Turnbull had alcohol in his body - He asked Turnbull to blow in his face and detected a "sweetish smell" - The officer made an approved screening device (ASD) demand - Turnbull registered a fail - He was later charged with having care or control of a motor vehicle while his blood-alcohol content exceeded the legal limit - The Nova Scotia Provincial Court found Turnbull guilty - The court rejected the argument that there was no basis for the ASD demand - Although the officer did not know how much earlier in the evening the wine had been consumed, or how large the glass of wine had been, one possible explanation for the erratic driving was that Turnbull still had alcohol in his body - The fact that the officer asked Turnbull to blow in his face after forming the suspicion did not make the suspicion any less reasonable, since his investigation related to a possible impaired driving charge and not just determining whether a basis existed for an ASD demand - Even if there had been a breach of s. 8 of the Charter, the court would not have excluded the evidence.

Cases Noticed:

R. v. Ishmael (A.A.) (2012), 536 A.R. 229; 559 W.A.C. 229; 2012 ABCA 282, refd to. [para. 19].

R. v. Gilroy (1987), 79 A.R. 318 (C.A.), refd to. [para. 22].

R. v. Mitchell (R.) (2013), 291 Man.R.(2d) 231; 570 W.A.C. 231; 2013 MBCA 44, refd to. [para. 22].

R. v. Bhatti (P.S.), [2012] B.C.T.C. Uned. 741; 2012 BCSC 741, refd to. [para. 22].

R. v. Adolf (L.), [2013] A.R. Uned. 775; 2013 ABPC 334, refd to. [para. 22].

R. v. Boyd (P.D.) (2013), 326 N.S.R.(2d) 54; 1033 A.P.R. 54 (Prov. Ct.), refd to. [para. 22].

R. v. Dunn (K.C.) (2007), 430 A.R. 121; 2007 ABPC 160, refd to. [para. 23].

R. v. Hnetka (D.G.) (2007), 426 A.R. 254; 2007 ABPC 197, refd to. [para. 23].

R. v. Chipchar (A.L.), [2009] A.R. Uned. 871; 2009 ABQB 562, refd to. [para. 34].

R. v. Grant (D.) (2009), 391 N.R. 1; 253 O.A.C. 124; 2009 SCC 32, refd to. [para. 38].

R. v. Bryce (D.), [2009] O.T.C. Uned. K80 (Sup. Ct.), refd to. [para. 41].

Counsel:

Terri Lipton, for the Crown;

Craig Clarke, for the defence.

This matter was heard in Dartmouth, N.S., on May 2 and June 17, 2014, before Gabriel, P.C.J., of the Nova Scotia Provincial Court, who delivered judgment orally on June 17, 2014, and released the following written reasons on September 9, 2014.