Cite as: R. v. Weir, 1992 NSCO 17 \ 1991 C . AR . No . 0 2 6 3 2 IN THE COUNTY COURT OF DISTRICT NUMBER THREE BETWEEN: HER MA,JESTY THE QUEEN APPELLANT - and -LLOYD MURRAY WEIR RESPONDENT HEARD: By written submissions BEFORE: The Honourable Judge Charles E. Haliburton, J.C.C. CHARGE: Section 254(5)(a) of the Criminal Code DECISION: The 20th day of January, A.D. 1992 COUNSEL: David E. Acker, Esq., for the Appellant C. Hanson Dowell, Esq., Q.C., for the Respondent D E C I S I 0 N 0 N A P P E A L '
' HALIBURTON, J.C.C. This is an Appeal by the Crown from the acquittal of Lloyd Murray Weir. Mr. Weir Middleton on or about the 19th day of October, 1990, he did without reasonable excuse demand ... to provide .. samples to determine the concentration, if any, his blood, contrary to Criminal Code. ยท The matter proceeded in John R. Nichols, J.P.C., on May consider the arguments of Counsel, charge, saying: I am prepared to acquit Lewis decision. Judge Nichols was referring to Her Majesty The Queen v. Thomas Lewis, No. C.C. 891535, British Columbia County Court. Justice D. T. Wetmore and filed August 14th, 1990. In general terms, there appeal and that is whether the Accused had a for his failure. Section 254 certain conditions being met, a peace officer 254(3) ... may, by demand made to that person ... ,require that person to provide then or as soon thereafter as is practicable (a) such samples of the person's breath as opinion of a qualified technician, or (b) where the peace probable grounds to believe that, physical condition of the person, was charged that at or near refuse to comply with a of his breath ... in order of alcohol in Sect ion 2 54 ( 5) (a) of the the Provincial Court before 14th, 1991. After reserving to Judge Nichols dismissed the your c 1 ient based on (the) Robert Vancouver Registry, of the The case was decided by Mr. is one issue only on this "reasonable excuse" of the Code provides that upon in the officer has reasonable and by reason of any
- ( i) the person may be incapable of providing sample of his breath, or (ii) it would be impracticable to obtain a sample of his breath, such blood ... as ... are necessary to enable proper in order to determine the concentration, if any, alcohol in the person's blood ... It is not clear from the materials before Judge Nichols had before him at the time of making his decision the decision rendered by Mr. Justice Misener in R. v. Richardson (1991), O.J. No. 695 (apparently reasoning of Misener, J. compelling and applicable to the case before me. In setting out the issue in that case, Misener, J. said: In the strict sense, the whether Judge Phillips was entitled to hold that excuse that Mr. Richardson reasonable one in the circumstances. the issue more accurately, however, issue is whether R. v. Lewis, of the Supreme Court of British Columbia, decided, and therefore whether a blood sample made in circumstances where blood samples can be easily obtained within the two-hour limit, is, without more, a reasonable comply with a demand to supply breath samples. THE FACTS A brief review of perhaps, be helpful. The Accused, being the operator of was apprehended at approximately 12:45 a.m. operating was a van belonging to one of the other occupants. 2 - a samples of the person's ana lysis to be made of me whether unpublished). I find the issue in this appeal is the asserted was, in 1 aw ,-a I think I state when I say that the a judgment of Wetmore J. was correctly bona fide offer of a excuse for refusing to (Emphasis added) the facts of this case would, a motor vehicle, The vehicle he was
- ' The occupants were returning to Nictaux after an evening spent in a cocktail lounge in Middleton. and Nictaux, an adjoining community. Because there was some vehicle towed from the site or finding one of the policemen involved drove the van with its owner the Accused to their destination. Accused was returned to the police office at approximately 1:15 a.m. On returning to the police office, Weir reiterated his refusal to take a breathalyzer test. constable in relation to this transcript: QUESTION: Do you recall 1n what way he refused? (Line 30) ANSWER: That problem was that he had for that which was a fractured skull years ago and as a result of that he was instrument. (And page 15) QUESTION: ... Now did he made at all in relation to this breathalizer test? (Line 15) ANSWER: Excuse me, my apology, as a result of reading the demand he had a problem with blowing into the instrument did indicate that he would wish to go to the hospital and take a blood test instead instrument. QUESTION: After you arrived back at your office and made the comment he didn't was anything further said about his fractured skull or about offering blood samples do you recall? ANSWER: Well in the police vehicle that he had more physical reasons for 3 - Middleton is a small Town difficulty with having the an ~ltcrnativc operator, and This was accomplished and the The evidence of the police is found at page 14 of the a medical reason unable to blow into the any other request of you he did make a request, and indicating that he of blowing into the want to speak to counsel, I said to Mr. Weir him not to blow
- into the instrument. I he showed no indication breathing. As a result really had any problem with his breathing as well. QUESTION: Can I ask you any particular reason didn't take him to the hospital for a blood test? ANSWER: Generally I had reasonable grounds to believe that he was impaired by alcohol and that those grounds, without blowing into determine that he had a problem. (Line 14) QUESTION: ... he was asking for blood samples any reason why you didn't take him up on that? ANSWER: He refused the demand and we just left it with the refusal. (Line 28) QUESTION: Alright. Now refused, did he give reason time? ANSWER: The same reason skull and that he couldn't blow into the instrument. QUESTION: Alright and again from any observations you made of him walking, having dealings with him, speaking to him did you note anything to substantiate that may have a problem providing samples? ANSWER: None. On cross-examination, it was elicited from the police constable that the local hospital distant from the police office and that the police ~onstable had made no effort to determine whether there for the purpose of taking Accused had offered to give. The Accused himself, that he had had three beers during the evening and friends. Because of the condition of his friend, the van, "I said I'd better drive". 4 observed Mr. Weir walking and of having any problem of (inaudible ... ) he never why you the instrument I couldn't when you indicated that he for his refusal at that was that he had a fractured he was less than one-half mile a doctor might be available the blood sample which the in giving evidence, testified was with his the owner of
- (Page 23, Line 33) QUESTION: Now you were asked to take a breathalizer? ANSWER: Yes. I said to him after we police station I said I got can't take it and I said take me said it two or three times ... I sample. I said it two or three times. (Page 24, Line 23) QUESTION BY THE COURT: skull or how do you breathalizer? ANSWER: Even when I wear bothers me I have to wear it on the back of my head. QUESTION: What does that have to do with blowing into a machine? ANSWER: Well there's still a fracture. QUESTION: How long ago did you have the fracture? ANSWER: Ever since I was 11 years old. (There is no evidence as however, the evidence seems occupied as a meat cutter for a period in excess of It would seem to have been at least that long since he was 11.) The reading of the transcript makes it clear that the Trial Judge accepted the proposition advanced by Defence Counsel that "The man sincerely, honestly believed that he couldn't take the test". However, the transcript also includes the evidence of the Accused that he has not, blow in either a breathalizer or ALERT machine. 5 - got back to the a fractured skull and I down to the hospital I asked for a blood When did you fracture your know you can't take the a cap across my forehead it , to the age of the Accused, to indicate that he has been 14 years. aged in his lifetime, attempted to
- 6 THE BELIEF OF THE ACCUSED The bona fides of the belief held by the Accused is a question of fact to be determined by absence of a bona fide belief in some facts which prevented his blowing into the machine, there excuse. I merely express my transcript as to whether there may have been evidence upon which the Trial Judge could have reached the conclusion that Weir, fact, had such a bona fide belief. nothing more than the fact that he testified he had suffered skull fracture at age 11, and that it bothers him to wear in a certain position. There is injury would either prevent him from blowing or would create risk to his health if he did produced a number of cases in relation where a variety of factual circumstances case before the Court here is not one of those cases where the Accused tried and failed to blow; not one of those cases condition which objectively could have prevented made him unable to blow or caused him to suffer any damage by blowing; not one of those cases overcoming and urgent requirement to be elsewhere; not one of those cases officer either demanded a blood sample in the alternative or accepted the proposition that permitted to give such a sample in the alternative. -the Trial Judge. In the could not be a reasonable own doubt after a review of the in The evidence consists of a a hat no evidence as to how that a attempt to blow. Counsel have to reasonable excuse were advanced. The where there is evidence of a him or which would have apparently where the Accused had some where the investigat.!.ng pol ice the Accused might be
- ' APPLYING R. v. RICHARDSON Even if the Accused parameters of the Lewis case by establishing that his offer to provide blood samples was a bona fide one, that enunciated in the Richardson case. in that case are in accord with the decision of the Saskatchewan Court of Appeal in R. v. Wall Notwithstanding the views expressed by Wetmore, J., with respect to the changes in the Criminal Code which have taken place since the decision was rendered in Culliton, C.J.S., at pages 148 and 149 of Wall today as they were in 1974. He said: The 1 anguage of s. 2 3 5 is provides for the right under certain conditions peace officer to demand from person's breath. The section further provides that the person to whom the demand is S-S. (1) commits an offence refuses to comply with the demand in the absence of reasonable excuse for such failure or refusal. Culliton, C.J.S. goes on to say that the priority of the demand is established and that the respondent will therefore be guilty unless he can establish a "reasonable excuse" for his refusal. Mr. Justice Culliton was of the opinion that the offer to give a blood sample was not a reasonable excuse, as he says: The conclusion that such excuse for failing to comply with a proper demand for a sample of breath finds language of the section interpretation of that language. conclude not only defeats the intent and purpose of the enactment, but is, as well, the virtual exercise of legislative power which it does not possess. 7 - brings himself within the I find the law to be The conclusions reached (1974) 19 C.C.C (2d) 146. R. v. Wall, the comments of remain as valid c 1 ear and unambiguous. It of a a person a sample of that made in accordance with if he or she fails or a an offer is a reasonable no support either in the or in any logical For the Court to so a Moreover,
- such an interpretation would enable a inoperative the probative simply refusing to supply offering a blood sample in place thereof. Court should not permit. The present section is essentially no different the Code section which was considered in 254 ( 3) provides that the peace officer can, certain criteria, demand a breath test and, further, that where he, the peace officer, has reasonable and probable grounds for believing certain other things, sample of blood upon certain section as the Defence seeks to have it interpreted here virtually negate the Legislation. recipient of a breath demand as to whether he will give a breath sample or a blood sample. In discretion from the peace officer, in whom fit to vest the choice. The breathalyzer provisions response to an extreme social ill. the detection and conviction of impaired drivers so as to reduce the risk of motor vehicle accidents and the resultant injuries arising from drinking and driving. society as a whole, is a restriction on the general proposition that no one will be obliged to give evidence against themselves. It is presumably because of this serious erosion of basic evidentiary right in Legislature provided that consequences of a "failure or reasonable excuse as provided established that any "excuse" which amounts to an attack on the 8 person to render provisions of s. 237 by a breath sample and by This the (My emphasis. ) from R. v. Wall. Section upon establishing he may make a demand for a conditions. To interpret the would It would give a choice to the doing so, it would remove that the Legislature saw were legislated in Their purpose is to permit The price to be paid by what is a our traditional law that the an accused might escape the a refusal" by establishing a in s. 254(5). It is well
- ' legislative scheme is not a "reasonable" evidence, if any, in the facts thesis that Weir was physically incapable of would have suffered any pain by blowing, or that doing so would have endangered his health. The evidence is not persuasive that he was genuine in his offer Nichols, having fail~d to give reasons other than to say that he was following the decision in R. in the circumstances that he Wetmore, that the offer of constituted a reasonable excuse breath sample. Such a proposition legislative scheme and is not reasonable excuse. DATED at Digby, Nova Scotia, this 20th day of January, A.D. 1992. ~"f.~ TO: Mrs. Patricia Connell Clerk of the County Court P.O. Box 129 Annapolis Royal, Nova Scotia BOS lAO 9 - one. There is scant of this case to support any blowing, that he to permit blood tests. Judge v. Lewis, leads me to conclude considered, as did Mr. Justice a blood sample, in itself, for his refusal to provide a is an attack on the and cannot be accepted aR a C LES E. HALIBURTON JUDGE OF THE COUNTY COURT OF DISTRICT NUMBER THREE
- 10 -AND TO: Mr. David E. Acker Senior Crown Attorney P.O. Box 1270 Middleton, Nova Scotia BOS !PO Solicitor for the Appellant Mr. C. Hanson Dowell, Q.C. Barrister and Solicitor P.O. Box 910 Middleton, Nova Scotia BOS !PO Solicitor for the Respondent CASES AND STATUTES CITED: Her Majesty The Queen v. Robert Thomas Lewis, No. C.C. 891535, Vancouver Registry R. v. Richardson (1991), O.J. No. 695 R. v. Wall (1974) 19 C.C.C. (2d) 146
CANADA PROVINCE OF NOVA SCOTIA 192279 IN THE COUNTY COURT JUDGE'S CRIMINAL COURT OF DISTRICT NUMBER THREE ON APPEAL FROM THE PROVINCIAL COURT HER MAJESTY THE QUEEN -versus-LLOYD MURRAY WEIR HEARD BEFORE: His Honour Judge John R. Nichols, J.P.C. ' PLACE HEARD: Annapolis Royal, Nova Scotia DATES HEARD: May 14 and July 17, 1991 CHARGE: That he at or near Middleton in the County of Annapolis, Nova Scotia, on or about the 19th day of October, 1990, did without reasonable excuse refuse to comply with a demand made to him by Timothy James Carrigan, a peace officer to provide then or as soon thereafter was was practicable samples of his breath as in the opinion of a qualified technician were necessary to enable a proper analysis to be made in order to determine the concentration, if any, of alcohol in his blood, contrary to Section 254(5)(a) of the Criminal Code. COUNSEL: David E. Acker, Esq., for the Prosecution C. Hanson Dowell, Esq., Q.C., for the Defence C A S E 0 N A P P E A L
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