Cite as: R. v. Dempsy, 1992 NSCO 35 CANADA PROVINCE OF NOVA SCOTIA COUNTY OF HALIFAX I N THE C 0 U OF DISTRICT NUMBER BETWEEN: HER MAJESTY - and KEITH J. DEMPSEY, John L Scott, Esq., solicitor for the respondent. Mark F. Dempsey, Esq., solicitor for the appellant. 1992, July 13, Anderson, an appeal from a conviction that the appellant did have the care or control of vehicle having in such a quantity concentration thereof exceeded eighty milligrams of alcohol in one hundred millili tres of blood, contrary to Section Criminal Code. . On conviction he of $500.00, costs of $50.00 of $75.00 and in the alternative imprisoned in the county jail prohibited from driving anywhere of six months commencing March 26, 1991. The three grounds C.H. 74166 N T Y C 0 U R T ONE THE QUEEN, Respondent Appellant J.C.C.:- This is by a Provincial Court Judge a motor consumed alcohol that the in his blood 253(b) of the was ordered to pay a fine and a Victim Fine Surcharge was ordered to be for thirty days, and was in Canada for a period of appeal as set forth in
- 2 the notice of appeal had been in the brief of counsel and to quote The Appellant respectfully submits that the issues to are as follows: 1. Did the Learned Provincial Court Judge err in law the unilingual amendable to allow the Crown with Section the Criminal Code of Canada? 2. Did the Learned Provincial Court Judge err in law the breath tests Appellant were taken practicable as required Criminal Code? 3. Did the Learned Provincial Court JUdge err in law the Defence request and reference ampoules reasonable one? FACTS On October 6th, 1990 R.C.M.P. was driving on the Herring Cove area, when a direction forced him off the This vehicle was well over the Gallant's lane. Constable Gallant the vehicle observing the same center line and going around vehicle's speed in excess of well above the posted signs hour. When the vehicle was was the sole occupant of the vehicle. odour of alcohol coming from slurred and his movements were slow. redefined, as set forth be deterimined in holding that information was compliance by 841(3) of in holding that taken from the as soon as by the in holding that for the test was not a Constable Mario Gallant, Purcell's Cove Road in the vehicle coming the opposite road to avoid a collision. center line in Constable
turned and followed
vehicle going over the turns he estimated the 100 kilometers per hour, of 70 and 50 kilometers per stopped the accused ['~mpsey There was a strong his breath, his speech was When asked to produce
- 3 a driver I s license he gave the officer first card and then an MSI card. He driving, given his Charter rights at given a breathalyzer demand at for a tow truck to remove his taken to the Halifax Detachment he was given the right to use the· officer, because of the number requested by the accused. take the test and two readings milligrams of alcohol per 100 10:33 p. m. , and 120 milligrams millilitres of blood at 10:53 p.m. Issue No.1: Did the Judge err in law in holding that the unilingual information was amendable to allow compliance by the Crown with s.841(3) of the Criminal Code of Canada? A case in the County Court, The Queen v. Goodine, dealt with the matter of unilingual informations and counsel agreed that because the Goodine of Appeal of Nova Scotia that it would to wait their decision before deciding issue No.1. In a letter of May appellant Dempsey indicated I that the decision in Goodine has been rendered with the ruling being that a Information is not fatal and does not render the Information null and void under Section 841 (3) Obviously, Your Honour I s ruling the Goodine decision and so issues in the Dempsey appeal to be determined. I a business was arrested for impaired 9:20 p.m. and was 9:28 p.m. After waiting vehicle, the accused was of the R.C.M.P. where the telephone. In fact accused's state, called a The accused agreed to were obtained; 140 millilitres of blood at of alcohol per 100 learned Provincial Court case went to the Court perhaps be well 19,1992 counsel for the unilingual of the Criminal Code. on this issue will follow that leaves the other two
- The second issue: Court Judge err in law in holding that the breath tests taken from the Appellant were taken as soon as practicable as required by the Criminal that the 18 minutes spent waiting for the demand· was made to the appellant to provide of his breath but prior to to the police station for the sample violated the requirement of s. 254 (3) that the test was given as soon thereafter as practicable, and he quotes R. v. Phillips (1988),42 C.C.C. Court considered this issue and stated: The test of reasonableness. be satisified that the police in the the arrest and test was reasonable ... It for the Judge at determine whether it for the police to Appellant to the by waiting for a tow truck. The trial judge said , I do find that an 18 and did not prevent the breath test the proper time'. In light (2d), p.33, I would not find erred in this regard and find that there is the second ground. The third issue Court Judge err in law in holding that the Defence request for the test and reference ampoules one? The appellant submitted that the trial in law in holding that the defence requests 4 Did the learned Provincial Code? The appellant sUbmits a tow truck after a sample transporting the appellant purpose of providing that (3rd) 150, Ont.C.A. The practicality is The Court must the conduct of interval between the breathalyzer will be the new trial to was reasonable delay taking the police station made a finding of fact and minute delay was reasonable from being given in of R. v. Russell 98 N.S.R. that the trial court judge no merit in Did the Learned Provincial was not a reasonable judge erred for the test - - - -- -
- 5 and reference ampoules was not argument pursuant to s.7 of the Canadian Charter of Rights and Freedoms and sought the the evidence re the results counsel rely on the decision in C.R. (3d) 271, 47 C.C.C. (3d) 129:' One of the cardinal of our system of is that an accused person is entitled to a fair trial. principle is the to make full answer to criminal allegations. has been expressly the Criminal Code since its initial enactment in 1892 ... The right to make defence is subsumed guaranteed by s.7 not to be deprived and the security of the person except in accordance with of fundamental justice. The appellant goes on, at p.13 of his brief, quoting from the Eagles case In the present no factual foundation or other basis shown indicating that the and examination of the representative ampoule would have capaci ty to advance I am not suggesting counsel, before being production, has to an examination of ampoule of the reagent establish tha'· def ective. Ra ther, there has to be some request for the production ampoule that reality to it - otherwise the request reasonable, and made an remedy of the exclusion of of the breath test. Both R. v. Eagles (1989), 68 cornerstones criminal justice Inherent in such substantive right and defence This right guaranteed by full answer and in the right of the Charter of life, liberty the principles case ... there was production any meaningful the defence. that defence entitled to establish that a representative used would the later was in my opinion basis for the of the lends an air of
- 6 is really for nothing a 'fishing expedition'. expeditions are not encouraged. The trial judge of Mr. Frorrun, who gave, his of the usefulness of the ampoules. that it was nothing more than wishful speculation amounting to, I would suggest, a similar term to a fishing expedition. Macdonald, J.A., in Eagles, considered R. v. Bourget (1987), 54 Sask.R. 178; 35 C.C.C. (3d) where he states ... Rather, in my to be some basis for the production that, as in Bourget, of reality to it request is really than a II fishing expeditions are - not encouraged. The trial judge had the evidence of she had the authority of Eagles of the opinion that she made regard to s. 7 that there was error in law and this issue must also fail. Therefore the appeal decision and sentence of the trial court confirmed. more that Such to be discouraged had before her the evidence expert opinion on the matter The trial judge found 371, Sask.Court of Appeal, opinion there has for the request of the ampoule lends an air otherwise the for nothing more expedition ". Such to be discouraged Mr. Frcrrun, and Bourget, and I am the correct decision with no breach and therefore no is dismissed and the r' ,// ?', /~,/ _.------ Judge of the County Court of District Number One - --~- -- I
CAN A D A PROVINCE OF NOVA SCOTIA COUNTY OF HALIFAX IN THE COUNTY COURT OF DISTRICT NUMBER ONE ON APPEAL FROM THE PROVINCIAL COURT HER MAJESTY THE QUEEN Respondent - and KEITH J. DEMPSEY, Appellant HEARD BEFORE: Her Honour Judge Sandra Oxner PLACE HEARD: 5250 Spring Garden Road, Halifax, Nova Scotia DATES HEARD: January 28, 1991 and March 26, 1991
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