Cite as: R. v. Collicutt, 1973 NSCA 7 1971 So Ho Noo 00831 IN mE SUPREME COURT OF NOVA SCOTIA APPEAL DIVlSION CROWN SIDE BETWEEN: HER ,."JESTY THE Q.UEEN Appellant - aoo -lOU8S COlliCUTT Respoll'~dent [ ORAL OPINION] This is an ~ppeaJ by the Crown fram a decision by His Honour Judge Po To Jo 0 Hearn, a Judge of the County Court, District Number One, by way of an information 511..orn on April 30, 1971,the ,-espondent \ISS char-ged "that he at or near Ha 1ifax, in the County of Ha 1ifax, Nova Scot ia, on or about the 30th day of April, 1971, did unlawfu1ly without reasonable excuse, fa i1 to comr,>ly with a demand made to him by a peace officer to provide a sample of his breath suitable to enable an analysis to be made and to accompany the peace officer for that purpose, contrary to section 223 (2) of the £rimi6'lal COdell " On September 1, 1971, the respondent was tded before ~he learned Judge of the County Court in a trial !e novo, wae acquitted a~d his appea 1 a 110\'/ed" The facts are: On April 30, 19716 in the early morning» C~stables Wayne MacDonald and Les] ie Fletcher of the Hal ifax City Po) ice Forces \<iere carrying out their duties on foot patrol on Ma~nard Street, iro the City of Halifax, Province of Neva ScotiaQ At about 2G40 aomo they saw a
(., particular, motor vehicle ""icll \o!aS being driven in a slow and hesitant mannero Cst. MacDonald caused the vehicle to stop and the respondent was discovered to be the driver and lone occupanto Both constables observed the respondent to exhibit certain physical signs associated with impairment such as glassy or bloodshot eyes~ the odour of alcohol on his breath and a certain unsteadinesso After conferring with each other momentarily, Csto MacDor~ld, having formed the belief that the respondent had consumed a sufficient amount of alcohol to Justify a breathalyzer test, related to him a breathalyzer dema~ in the words of subsection 2350 (1) of t~e £riminal Code 0 $hortly after Csto Vincent MacDo~ld, also of the Hal ifax City Pol ice Force, ,"rrived in a pol ice vehicle and he and C§t:o Wayne MacDonald drove the respondent to the Halifax Pol ice Statio~ for the purpose of conducting the testo On the way to the statio~ Csto Wayne ~\acDona Id obser"~ed that the responderllt seemed unsure of what was happening and told him that he would be charged with impaired drivingo Upon arrival 3t the station" at about 3 aoffio, the re~pOl1ld€nt stated to Wayne MacDonald that he "would nat go i!'il for the ol'eathalyzer testllo Wayne MacDona Id informed Cst. V incent MacDona 1d , who was a qua 1 ified technician under subsection 2370 ill of the Code, of this circwnstanceo Vi !'1Icent MacDona 1d then obsei"'Jed the respondent and aho ,"ead to him a breathaJyzer demand in words essentially the same as tr-~ose pt"evio!.!sly used by Wayne HacDonaici o To this the respondent rep) ied that he did !'tot irJtei'1Jd to take any bf-eathalyzer testo !-Ie was then charged \>Jith refusal 0 The grounds of appeal are: 2
(1) If the appellant's appeal really is from the decision of Judge 0 Hearn dated October 7, 1971$ then the notice of appeal dated June 21, 1972, is out of times and the fint point then will be """ether or mot the appellant should be granted .m extension of time; (2) on a charge under what is now sectiorn 2350 (2) of
the Criminal Code, should the infonnatio~ specBfy the peace
officer who gave the demand o
Leave to appeal is grantedo With regard to the first ground the Court finds that the time for filing the notice of appeal here ran from the 3th day of Ju~~~ 1972:whe~ the learned trial Judge gave his decision of acquittalo The notice of appeal dated June 2~ 1972, was therefore not out of timeo The evidence shows that the demalid was 9 ivan by Csto Wayne MacDonald, who had reasonable cause to believe that the app~11ant had more than the permissible amount of alcohol in his b1ood o \/hen the appellant refused to agree to this demand and take the breathalyzer test, the offence was ccmp1ete ~ That Csto Vincent MacDonaid$ the tecrmicia!1.f) aften.,;ar<'Cls repeated the demand in essent is 11 y the SElme words does ~ot nu 11 Hv'!) c! Ot!(~ or vitiate the demand given by Cst~ wayne MacDcna!do Cst. Wayne MacOo!1Clld waS the only offEcer invoived in issl..lir!'9 the demand, and the appelhmt was -not misled by the ir~formation which did not spec ify the name of the peace off icer who gave the demand but men.~ ly noted it was given by lie peace officer": See section 5120 -~21 of the Criminal Code 0 It would appear that there was only one transuction and the appe 11 ant shou 1d not be pt'evented from pi cad i ng aut r.efo is acqu i t or .aut re-fois convict in the event of subsequent charges: see Regioo Vo Layn .... e,~ (i~'72) ~~.~ ~ 3
6 coeoco BoCo 50to 476 0 Accordingly, and with deference, the acquittal by the learned Judge of the County court should be set aside and the co~victlon of the Magistrate restoredo It is our UI'Wnimous op inion that the appel lent should be provided with a concl it iooo 1 1 ieanse prah ibit ing him frorn driving a motor vehicle between the hours of 11 pom~ and 6 aomo in the area usually trC/velled by him inhis business inaccordancet"ith So 2380 (1) (>f the trim ina 1 Code 0 MTED at Halifax" Nova Seotie, this 7th day of February!) Ao Do, 19730 Members of Appeal Divisto~ McKinnon, CoJoNoSo toff in, JoAo Cooper, JoA 0 counsel Graham We Stewart, Esq. Appe llant Ar.gus Lo Macdonald, QoC~ Respondent 4
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