R. v. Williams (H.H.), (2010) 291 N.S.R.(2d) 24 (PC)

• Judge: Ross, P.C.J.
• Court: Provincial Court of Nova Scotia (Canada)
• Case Date: March 10, 2010
• Jurisdiction: Nova Scotia
• Citations: (2010), 291 N.S.R.(2d) 24 (PC);2010 NSPC 27

R. v. Williams (H.H.) (2010), 291 N.S.R.(2d) 24 (PC);

    922 A.P.R. 24

MLB headnote and full text

Temp. Cite: [2010] N.S.R.(2d) TBEd. AP.008

Her Majesty the Queen v. Harry Herbert Williams

(1986089/090; 2010 NSPC 27)

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

Nova Scotia Provincial Court

Ross, P.C.J.

March 10, 2010.

Summary:

The accused was charged with driving while having a blood-alcohol content over .08. The accused alleged that the samples were not taken as soon as practicable where 28 minutes had elapsed between the taking of the first and second samples.

The Nova Scotia Provincial Court rejected the argument and convicted the accused.

Criminal Law - Topic 1374

Motor vehicles - Impaired driving - Breathalyzer or blood sample - Evidence and certificate evidence - The accused was charged with driving while having a blood-alcohol content over .08 - The accused alleged that the samples were not taken as soon as practicable as required by s. 258(1)(c) of the Criminal Code - To produce a valid certificate of analysis and to obtain the benefit of the evidentiary presumption afforded by s. 258(1)(c), there had to be at least 15 minutes between the first and second samples - Here there were 28, which was 13 more than necessary - The accused argued that this delay, absent any explanation for it, deprived the Crown of the benefit of the presumption - The Nova Scotia Provincial Court convicted the accused - For the purposes of this case, and as a general guideline for future cases, only where the time between the first and second test was or exceeded 30 minutes was the delay prima facie unreasonable - Only then did it require viva voce evidence which showed that the time of the second test was the earliest practicable time - The mere fact of a delay of less than 15 minutes, beyond the 15 minute minimum, did not offend the practicability requirement in s. 258.

Cases Noticed:

R. v. C.A.J. (2004), 370 A.R. 76 (Q.B.), refd to. [para. 25].

R. v. Stapley, [1997] O.J. No. 4307 (Prov. Ct.), refd to. [para. 29].

R. v. Kunsenhauser, [2006] O.J. No. 4092 (C.J.), refd to. [para. 30].

R. v. Cassidy (E.J.J.) (2003), 212 N.S.R.(2d) 383; 665 A.P.R. 383 (Prov. Ct.), refd to. [para. 31].

R. v. Trempe (1992), 111 N.S.R.(2d) 317; 303 A.P.R. 317 (Co. Ct.), refd to. [para. 32].

R. v. Cook (J.S.) (1994), 130 N.S.R.(2d) 99; 367 A.P.R. 99 (S.C.), refd to. [para. 33].

R. v. Russell (1990), 98 N.S.R.(2d) 33; 263 A.P.R. 33 (Co. Ct.), appld. [para. 34].

Statutes Noticed:

Criminal Code, R.S.C. 1985, c. C-46, sect. 258(1)(c) [para. 17].

Counsel:

Gerald MacDonald, Crown Attorney;

William Burchell, defense Attorney.

This case was heard on February 11 and 18, 2010, by Ross, P.C.J., of the Nova Scotia Provincial Court, who delivered the following decision on March 10, 2010.