PROVINCIAL COURT OF NOVA SCOTIA
Citation: R. v. MacInnis, 2011 NSPC 70
Date: October 4, 2011
Docket: 2252040, 2252041
Registry: Pictou
Between:
Her Majesty the Queen
v.
Joshua Payne MacInnis
Judge: The Honourable Judge Del W. Atwood
Heard (Ex Parte) October 4, 2011, in Pictou, Nova Scotia
Written decision: October 6, 2011
Charge: That on or about the 30th day of October, A.D., 2010, at or near New Glasgow, in the County of Pictou, Nova Scotia, did while his ability to operate a motor vehicle was impaired by alcohol or a drug, did operate a motor vehicle contrary to Section 253(1)(a) of the Criminal Code; Furthermore: did having consumed alcohol in such a quantity that the concentration thereof in his blood exceeded eighty milligrams of alcohol in one hundred millilitres of blood, did operate a motor vehicle, contrary to Section 253(1)(b) of the Criminal Code;
Counsel: Mr. William Gorman, for the Crown
Accused, not present
By the Court:
[1] Thank you, Mr. Gorman. The Court has for decision following ex parte trial, the case of Joshua Payne MacInnis. Mr. MacInnis is charged with two offences, one under 253(1)(a)CC, the other under 253(1)(b)CC.
[2] The Court heard from the arresting officer, Cpl. Paris, who testified as to his understanding of Mr. MacInnis’ blood-alcohol concentration measured by the qualified technician. Obviously, that is not evidence that the Court is able to.... Well, while I’m sure that Cpl. Paris’ recollection is correct, it is nevertheless not admissible in evidence.
[3] The admissibility of measured blood-alcohol concentration may be proven by via voce evidence of the qualified technician who did the analysis, or by way of an admissible certificate of qualified technician under s. 258(1).
[4] In this particular case, as raised by the Court, the s. 258(7) pre-condition for admissibility of the certificate was not met. There is no proof of service; therefore the Certificate is not admissible. I concur in the position taken by the Crown and therefore the Court will direct a dismissal in relation to the section 253(1)(b)CC matter, which is case #2252041, there being no evidence as to blood-alcohol concentration.
[5] With regard to the 253(1)(a) charge, case 2252040, I am taking into account that fact that there is no evidence before the Court of blood-alcohol concentration; I observe that the period of time that Cpl. Paris had Mr. MacInnis under observation operating his motor vehicle was very, very brief; I note that Mr. MacInnis appeared to be licensed in the Province of Prince Edward Island, and I draw what I consider to be the common-sense inference from that fact that Mr. MacInnis would not have been familiar with the routing of streets in the downtown of New Glasgow; additionally, it is not clear to the Court from the evidence of Cpl. Paris as to the presence of signage on Archimedes Street that would have drawn to Mr. MacInnis’ attention that he was driving southbound on a roadway that was for northbound traffic only.
[6] While I do accept the credible and trustworthy evidence of Cpl. Paris that Mr. MacInnis was unsteady on his feet for at least a brief period of time, that he did have a strong odour of alcohol on his breath, and that his eyes were red and glossy, I am nevertheless left in a state of reasonable doubt as to whether Mr. MacInnis’ ability to operate a motor vehicle was impaired by alcohol. It is important to note that, although the Crown referred to Mr. MacInnis as being impaired, the burden of proof upon the Crown is not merely to show that Mr. MacInnis was impaired by alcohol; rather, the burden of proof rests upon the Crown to establish, beyond a reasonable doubt, that Mr. MacInnis’ ability to operate a motor vehicle was impaired by alcohol or a drug.
[7] In this particular case, there is no evidence before the Court of blood-alcohol concentration. There is no evidence before the Court that Mr. MacInnis was weaving, or travelling at an excessive rate of speed. Although he was travelling the wrong way on a one-way roadway, for the reasons that I’ve described earlier, I’m not satisfied that that would be an indicia of an impaired ability to operate a motor vehicle.
[8] I find that I am left in a state of reasonable doubt with respect to that essential element and , applying the principles set out in R. v. Stellato, being left in
a state of reasonable doubt, the Court would find Mr. MacInnis not guilty of the offence under section 253(1)(a)CC.
________________________________________
JUDGE DEL W. ATWOOD
A PROVINCIAL COURT JUDGE IN AND FOR
THE PROVINCE OF NOVA SCOTIA