R. v. Vaillancourt, (1988) 84 N.S.R.(2d) 187 (ProvCt)

JudgeCurran, P.C.J.
CourtProvincial Court of Nova Scotia (Canada)
Case DateDecember 10, 1987
JurisdictionNova Scotia
Citations(1988), 84 N.S.R.(2d) 187 (ProvCt)

R. v. Vaillancourt (1988), 84 N.S.R.(2d) 187 (ProvCt);

    213 A.P.R. 187

MLB headnote and full text

R. v. Gerald Albert Vaillancourt

(Case No. 29614)

Indexed As: R. v. Vaillancourt

Nova Scotia Provincial Court

Curran, P.C.J.

January 21, 1988.


The accused was charged with refusing to comply with a breathalyzer demand and impaired driving, contrary to ss. 238(5) and 237(a) of the Criminal Code. The issues were whether the accused, who did nothing but shift the gears, had care and control and whether his right to counsel was denied on the ground that he was too intoxicated to understand his rights.

The Nova Scotia Provincial Court convicted the accused of refusing the breathalyzer demand and stayed the impaired driving charge.

Civil Rights - Topic 4610

Right to counsel - Impaired driving - Breathalyzer demand - An accused given a breathalyzer demand was advised of his right to counsel - The accused refused the demand and later claimed that his right to counsel was denied where he was too intoxicated to understand his rights - The Nova Scotia Provincial Court stated that impaired driving cases were to be distinguished from cases involving statements, because it would be absurd to have to wait to give a breathalyzer demand until the accused was sufficiently sober to understand his Charter rights - Alternatively, the court held that the accused failed to establish on a balance of probabilities that he was too intoxicated to understand his rights - See paragraphs 11 to 19.

Criminal Law - Topic 1368

Motor vehicles - Impaired driving - Care and control - What constitutes - The accused's brother was steering the accused's van while the accused did the shifting - The Nova Scotia Provincial Court held that the accused had care and control of the motor vehicle - The court stated that it was possible to have more than one person at a time with care and control - The court stated that the accused had care and control because he exercised control over the speed at which the motor vehicle could operate -See paragraphs 6 to 10.

Criminal Law - Topic 1378

Motor vehicles - Impaired driving - Breath sample - Excuse for refusal to provide -The Nova Scotia Provincial Court stated that a lack of care and control was not a reasonable excuse for refusing to comply with a breathalyzer demand.

Cases Noticed:

R. v. Toews (1985), 61 N.R. 349; 21 C.C.C.(3d) 24; 47 C.R.(3d) 213 (S.C.C.), consd. [para. 7].

R. v. Ford, [1982] 1 S.C.R. 231; 40 N.R. 451; 65 C.C.C.(2d) 392; 36 Nfld. & P.E.I.R. 254; 101 A.P.R. 254, consd. [para. 7].

R. v. Slessor, [1970] 1 O.R. 664, refd to. [para. 9].

R. v. Taraschuk (1975), 5 N.R. 507; 25 C.C.C.(2d) 108 (S.C.C.), appld. [para. 11].

R. v. Mohl (1987), 55 Sask.R. 22; 34 C.C.C.(3d) 435 (C.A.), disagreed with [para. 13].

R. v. Clarkson (1986), 66 N.R. 114; 69 N.B.R.(2d) 40; 177 A.P.R. 40; 25 C.C.C.(3d) 207 (S.C.C.), dist. [para. 13].

Statutes Noticed:

Criminal Code, R.S.C. 1970, c. C-34, sect. 237(a), sect. 238(5).

Canadian Charter of Rights and Freedoms, 1982, sect. 10(b).


C. Morris, for the Crown;

V. Calderhead, for the accused.

This case was heard on December 10, 1987, at Bedford, Nova Scotia, before Curran, P.C.J., of the Nova Scotia Provincial Court, who delivered the following judgment on January 21, 1988.

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