I I . Cite as: R. v. Houle, 1992 NSCA 93 \.., S.C.C. No. 02540 I IN lllE SUPREME COURT OF NOVA SCOTIA APPEAL DMSION I Jones, Chipman and Freeman, JJ.A I BEIWEEN: YV AN ROGER HOULE ) Margaret L Macinnis I ) for the appellant appellant ) ) Robert C. Hagell I ) for the respondent - and - ) ) Appeal Heard: I ) June 2, 1992 HER MAJESTY TIIE QUEEN ) ) Judgment Delivered: I respondent ) June 2, 1992 ) t~ I TIIB COURT: Leave to appeal granted but the appeal is dismissed per oral reasons for judgment of Jones, J.A; Chipman and Freeman, JJ.A concurring. I I I I I IL I I
I ·~ The reasons for judgment of the Court were delivered orally by: I JONES. J.A: The appellant was charged that he: I "at or near Halifax in the County of Halifax, Nova Scotia, on or about the 22nd day of August, I 1990 did operate a motor vehicle on the street, to wit: on Barrington Street, in a manner that was dangerous to the public and thereby causing I bodily harm to Kevin William Murphy, contrary to Section 249(3) of the Criminal Code. I AND FURTHER AT THE SAME TIME AND PLACE AFORESAID, while his ability to operate I a motor vehicle was impaired by alcohol he did operate a motor vehicle and thereby cause bodily harm to Kevin William Murphy, contrary to I Section 255(2) of the Criminal Code. ,..., AND FURTHER AT THE SAME TIME AND PLACE AFORESAID, having the care and control of a motor vehicle that was involved in an accident with a vehicle in the charge of Kevin I William Murphy at Barrington Street with intent to escape civil or criminal liability did fail to stop his vehicle give his name, address and other I assistance to Kevin William Murphy, an injured party, contrary to Section 252(1) of the Criminal Code." I The appellant was tried before Anderson, J.C.C. The appellant was convicted I on counts two and three in the indictment. The appellant has appealed. The appeal has been confined to count two and the appellant has abandoned the appeal with respect to I count three. I At approximately 11:30 p.m. on August 22, 1990, the appellant came along Barrington Street south of the Angus L Macdonald bridge driving a pick-up truck. The street has four lanes. He passed a vehicle parked in the vicinity of Camille's Fish and Chip 'I'" " I
------------2 Restaurant He was being overtaken by a motorcycle driven by Kevin Murphy. Murphy was in the southbound lane next to the centre line. Murphy was driving at 60 to 70 kilometers per hour. As Murphy came along side the truck, the appellant cut to the left and struck the motorcycle. The bike and Murphy were thrown to the opposite curb. injured. The appellant made a U-turn on Barrington Street and then went north and made a right turn towards the Dockyard. The truck had a flat tire on the front drivers side and there was some damage to the front end. The police were alerted and the truck was overtaken on Agricola Street The truck came to a stop and the driver got out and proceeded to walk away. He was overtaken by two military police officers. The driver of the car parked in front of Camille's noticed the truck approaching from the rear. It was weaving in the road. Shortly after it passed the car the appellant made a U-turn in the street and as he did so collided with the motorcycle. When the appellant was stopped he showed signs of impairment including unsteadiness while standing. He was taken to the Halifax Police Department where a breathalyzer test was administ~red at 1:29 a.m. The test showed a reading of 90 milligrams of alcohol in 100 millilitres of blood. The second test showed the same reading. On the trial Joseph Dupuis, an expert was called by the Crown to interpret the reading. It was his opinion that at 11:45 p.m. the readings would have been between 95 and 140 milligrams. The appellant testified that he had been at Bud's Pub in Burnside at approximately 8 p.m. on that night. He had something to eat and about three beers. He left there at about 9:30. He went back to the tavern later on and had two more beers. He left the tavern after 11 p.m. and proceeded to Halifax intending to go towards the Dockyard. He said that as he came onto Barrington Street he pulled to the left to pass the car parked l ,] J l Mr. Murphy was l l l ] l ] _J ] ] ] ] l ] ,] .J l ]
I 3 I'' "" by Camille's. He did not see any vehicle coming down Barrington Street. As he came into the centre lane he felt a bump and saw sparks. He felt a shimmying in the front of the I truck but kept on driving down Barrington Street and turned up Cornwallis. He denied that I he made a U-tum. He also stated that he never saw the motorcycle. In entering a conviction on count two the trial judge accepted the Crown evidence that the appellant was I making a U-turn when the collision occurred. He rejected the appellant's evidence that he I did not see the motorcycle which struck the front of the truck. The learned trial judge was satisfied beyond a reasonable doubt that the impaired driving caused the accident. I The appellant contends that the trial judge was not entitled to rely on the I expert evidence as the Crown had not established the facts on which the opinion was based. The argument is that the evidence did not establish that the appellant did not have anything '~ to drink one-half hour before the accident or did not consume any alcohol following the I accident. He relies on the decision in R. v. Nelson (1982), 16 Sask. R. 391. In that case the I charge was driving with a blood alcohol level exceeding eighty milligrams of alcohol in one hundred millilitres of blood. In that case the Crown undertook to prove that fact beyond I a reasonable doubt. The Crown did not undertake such a burden in this case. While the I evidence was not conclusive it was admissible. There was evidence that this accident occurred around 11:30 p.m. or shortly thereafter. The appellant was drinking around 11 I p.m.. He testified he only had two beers. He did not suggest that he had anything to drink I following the accident and there is no evidence that he did. In fact there was very little opportunity to do so. Given the breathalyzer readings which were not conclusive, the expert I \.., evidence together with the other indicia of impairment including the accident there was I I
l ,,] 4 J ample evidence to support the conclusion of the trial judge that the appellant was indeed l impaired and that it was the impaired driving which caused the accident. ] Leave to appeal is granted and the appeal is dismissed. ] J Concurred in: ·] Chipman, J.A ~I Freeman,J~ J ] _j J l l ] J ] ,,] ..,J J J
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