Citation: R. v. Wiles , 2009 NSSC 17
Date: 20090107
Docket: CRAD287935
Registry: Digby
Between:
Her Majesty The Queen
v.
Charles Keith Wiles
Judge: The Honourable Justice Patrick J. Duncan
Heard: November 24 and 25, 2008; January 7, 2009,
at Digby, Nova Scotia
Oral Decision: January 7, 2009
Counsel: Murray Judge, for the Crown
Darren MacLeod, for the Accused, Charles Keith Wiles
By the Court (orally):
[1] Mr. Wiles is charged that he:
“On or about the 3rd day of March 2007 at or near Lawrencetown, Annapolis County, Nova Scotia did while his ability to operate a motor vehicle was impaired by alcohol, operate a motor vehicle and thereby caused bodily harm to Maggie Burrell and Thomas O’Donnell contrary to Section 255(2) of the Criminal Code.”
AND FURTHER that,
at the same time and place did, having consumed alcohol in such a quantity that the concentration thereof in his blood exceeded eighty milligrams of alcohol in 100 millilitres of blood, operate a motor vehicle contrary to Section 253(b) of the Criminal Code.
[2] These are the first 2 counts of a 5 count Indictment dated November 9, 2007. During the course of the trial of this matter Mr. Wiles changed his plea to guilty in relation to counts 3, 4 and 5.
[3] The trial was conducted over a period of two days. During that time the Crown called evidence from nine witnesses. The Defence followed with the testimony of two witnesses, including the accused.
[4] The issues have been substantially narrowed by counsel. The accused admits that:
1. He operated a motor vehicle;
2. On March 3, 2007;
3. At or near Lawrencetown, Annapolis County, Nova Scotia; and
4. That as a result of his driving error his car came into collision with the
vehicle of Maggie Burrell and Thomas O’Donnell, which motor vehicle accident caused them bodily harm.
ISSUES
[5] The live issue in relation to count 1 may be stated in this way: Has the Crown proven beyond a reasonable doubt, on properly admissible evidence, that Mr. Wiles’ ability to operate a motor vehicle at the relevant time, was impaired by alcohol?
[6] As to the second count, the live issue may be stated as follows:
Has the Crown proved beyond a reasonable doubt on properly admissible evidence that the accused’s blood alcohol level at the relevant time and place exceeded 80 milligrams of alcohol in 100 milliliters of blood?
ANALYSIS: Count 2 - section 253(b) CCC
[7] I will deal with the second count. Section 253(1)(b) makes it an offence for an individual to operate a motor vehicle having consumed alcohol in such a quantity that the concentration in the person’s blood exceeds 80 milligrams in 100 millilitres of blood.
[8] In order to prove the guilt of the accused on this offence, the Crown relies on the combination of the analysis of two samples of the accused’s breath taken on the evening in question, together with the expert opinion evidence of Jean-Claude Landry, a forensic alcohol specialist employed by Toxicology Services with the Royal Canadian Mounted Police.
[9] The Defence, in closing arguments, submitted that the demanding officer did not have the requisite grounds to make the demand pursuant to section 254(3)(a)(i) of the Criminal Code which demand lead to the Breathalyzer results. As such, it was submitted that the test results should be excluded.
[10] The Crown took no objection to the court considering this argument. I pointed out at that juncture that, in my opinion, R. v Rilling , [1976] 2 S.C.R. 183 was good law and that for such an argument to be advanced it would necessarily need to be framed as an application pursuant to section 24(2) of the Charter seeking to exclude the test results as having been obtained in contravention of the accused’s right to be secure from unreasonable search and seizure as guaranteed by section 8 of the Charter.
[11] Following the conclusion of submissions, the case was adjourned for further written submissions on an unrelated issue. During the period of that adjournment I communicated to counsel my request for clarification of their positions on the availability of a Charter argument to the accused having regard to the fact that there had been no notice of an intended Charter motion provided by the accused.
[12] Both counsel communicated with the court and with the following result:
1. The accused seeks that the court consider the section 24(2) Charter argument as set out earlier;
2. The Crown waived its right to notice by the accused of an intention to advance a Charter argument;
3. The Crown and the accused agree that no further evidence would be available on the Charter issue than is already before the court;
4. The parties reserved the right to make further oral submissions on today’s date.
[13] Notwithstanding the restrictive philosophy expressed in R. v Dwernychuk (1992), 77 C.C.C. (3d) 385, I accept that it is in the interests of justice to consider the application in these circumstances, and that no prejudice to either the Crown or the accused results from this procedure.
[14] It is worth noting that both the Crown and the Defence intimated in their earlier submissions that the evidence of the demanding officer did not conform entirely to their pre-trial expectations, and so I accept the process must sometimes give way to the recognition of changed circumstances.
Reasonable Grounds for Demand
[15] Section 254(3)(a)(i) reads as follows:
“If a peace officer has reasonable grounds to believe that a person is committing, or at any time within the preceding three hours has committed, an offence under section 253, as a result of the consumption of alcohol, the peace officer may, by demand made as soon as practicable, require that person,
(a) to provide, as soon as practicable,
(i) samples of breath that, in a qualified technician’s opinion, will enable a proper analysis to be made to determine the concentration, if any, of alcohol in the person’s blood.
[16] At paragraph 48 of Justice Sopinka’s decision in R. v. Bernshaw, [1994] 53 B.C.A.C. 1, it states:
The existence of reasonable and probable grounds entails both an objective and subjective component. That is, section 254(3) of the Code requires that the police officer subjectively have an honest belief that the suspect has committed the offence and objectively there must exist reasonable grounds for this belief.
[17] In R. v. Chartier (Quebec Attorney General), [1979] 2 S.C.R. 474, the court held that a peace officer is entitled to “take into account all the information available to him” in forming his belief as to someone’s guilt. That is, he is “entitled to disregard only what he has good reason for believing not reliable”.
[18] I am of the view that an officer is not entitled to make a demand based simply
upon “a quick assessment”, but rather must assess all of the circumstances available
upon which to form the requisite grounds.
[19] The officer who issued the demand in this case was Cst. Brent Betts. His evidence indicates that on the evening of March 3rd, he was on patrol in Middleton with a Cst. Burns, when he heard Cst. Pyne over the radio speaking of a motor vehicle accident. When they arrived at the area he did not go to the accident site but instead went to Elliott Road where Cst. Betts met with Cst. Pyne, who had a person in custody. Csts. Betts and Burns began a foot search of the area for a second person.
[20] At 8:50 p.m. Cst. Betts located the accused in a wooded area off the Elliott Rd. At that time the officer formed the opinion that the accused appeared either asleep or passed out. He smelled alcohol and observed the accused in possession of a car stereo.
[21] He indicates in his evidence that he immediately placed the accused under arrest. His evidence varied as to what he told the accused as the reason, testifying that he said it was for being intoxicated in a public place, for failing to remain at the scene of an accident and for impaired driving. He handcuffed the accused who was lead out of the woods to a waiting police vehicle where he was, at 9:00 p.m., issued the demand under section 254(3).
[22] A search of the accused determined he was in possession of one bottle of Labatt Blue beer.
[23] At approximately 9:10 p.m. the accused was transported from the scene to the Middleton RCMP Detachment.
[24] At approximately 9:47 p.m., while at the detachment office, the accused admitted to the officer that in fact he was the driver of the vehicle. He was turned over to Cst. Wetzel who administered the breathalyzer tests.
[25] When asked to provide the basis for the formation of his belief that the accused had committed an offence contrary to Section 253, Cst. Betts indicated his reasons to be:
1. A very strong smell of alcohol; and
2. That the accused appeared to be passed out or sleeping in the snow in a wooded area “in the middle of nowhere”.
[26] When the Crown asked him if there was anything else, he replied: “That’s all I recall”. It is important to look at the totality of all the circumstances that were available to him and that one could reasonably infer the officer would have known. It would have been apparent to Cst. Betts, based on the evidence that a motor vehicle accident had recently taken place nearby and that two suspects fled from the scene; that the accused had a car stereo in his possession; and that the accused was in possession of a beer.
[27] I have reviewed the evidence of all of the other witnesses to determine what, if any, information was provided to Cst. Betts prior to his coming upon the accused and issuing the breathalyzer demand. There is nothing to suggest that Cst. Betts had any evidence to show that Mr. Wiles was the operator of the motor vehicle, prior to issuance of the demand. This is a necessary element of the offence of section 253. It is not clear how Cst. Betts reached the opinion that the accused had been in care or control of the motor vehicle some 90 minutes earlier.
[28] Cst. Betts did not observe the accused operating the motor vehicle. He did not speak to any witnesses who observed the accused operating the motor vehicle. There is no evidence before the court to suggest that he spoke to any other person who was reliable, such as another police officer, who had information upon which Cst. Betts could reasonably believe the accused was the operator of the vehicle.
[29] Cst. Betts observed indicia consistent with both a subjective and an objective belief that the accused was under the influence of alcohol as at the time of the arrest and demand. This does not necessarily lead to the conclusion that the accused was impaired at the time of the motor vehicle accident.
[30] Cst. Betts was in possession of information that a second individual had been previously apprehended. That person had also left the vehicle. At the time of issuing the demand, however, at least on the evidence before the court, Cst. Betts was confronted with the fact two individuals had both run from the vehicle and no information as to which was the operator of the vehicle.
[31] It may be that Cst. Betts was in possession of more information than came out in trial, but to find that to be so would be to engage in speculation. In the manner in which the evidence was presented, it appears that Cst. Betts instinctively concluded that the person, Mr. Wiles, whom he had apprehended in the woods was in fact the operator and therefore a candidate to provide a sample in accordance with the demand under section 254.
[32] While not pertinent to the belief of Cst. Betts, it is interesting to observe that Cst. Pyne, who had previously apprehended the other occupant of the vehicle, one Neil McBurnie, indicated that when he came upon Mr. McBurnie he detained him “for impaired driving”. Again, it is not clear on the evidence as to the basis on which Csts. Pyne and Betts distinguished who of the two apprehended individuals was in fact the operator.
[33] I have concerns as to whether the information available to Cst. Betts as at the time he issued the demand would have been sufficient to conclude that Mr. Wiles, even if it was apparent he was the operator of the vehicle, was impaired at the time of the accident some one and a half hours previously. This is particularly complicated by the evidence indicating that Mr. Wiles was in possession of alcohol and could certainly have consumed alcohol after care and control of the motor vehicle ended.
[34] The officer’s observations of Mr. Wiles, prior to making the demand are, at best, consistent with the recent consumption of alcohol. Objectively, the indicia he relied upon, even when combined with other information I accept he would know would not support a conclusion that the accused was impaired as at the time of making the demand, let alone 90 minutes earlier.
Section 8: Unreasonable Seizure
[35] I am satisfied that the taking of a breath sample can constitute a seizure within the meaning of section 8 of the Charter. See, R.v. Pavel (1989), 36 O.A.C. 328 (Ontario Court of Appeal). The provision of the breath sample by Mr. Wiles constituted a warrantless seizure authorized by Statute. In the circumstances, it is imperative that the demand provisions of the Criminal Code, which demand can result in the compulsion of Mr. Wiles to provide a sample, must be strictly adhered to.
[36] I have concluded that the section 8 Charter right of Mr. Wiles to be secure from unreasonable seizure was violated. The evidence does not support a conclusion that the officer had a sufficient basis upon which to form reasonable grounds to conclude the accused was the operator of the motor vehicle nor that he was impaired as at the time of the care and control of the motor vehicle.
Section 24(2) of the Charter of Rights and Freedoms
[37] Having concluded that the accused’s section 8 Charter Rights were violated, I turn to the determination of whether the test results should be excluded under section 24(2). That section reads:
“Where, in proceedings under (1), a court concludes that evidence was obtained in a manner that infringed or denied any rights or freedoms guaranteed by this Charter, the evidence shall be excluded if it is established that, having regard to all the circumstances, the admission of it in the proceedings would bring the administration of justice into disrepute.”
[38] Three factors relevant to consideration of such an application were set out in R. v Collins (1987), 1 S.C.R. 265 and may be summarized as:
1. Whether admission of the evidence in some way affects the fairness of the trial;
2. The seriousness of the breach;
3. Whether the reputation of the judicial system is better served by the admission or the exclusion of the evidence.
[39] The seizure of the accused’s breath sample in violation of section 8 constitutes evidence that was conscripted and which did not pre-exist the Charter violation. There is no reason to believe that there is any other, alternative non-conscriptive means by which the Crown could have obtained a sample of the accused’s breath. Therefore, admission of Mr. Wiles breath sample would affect the fairness of the trial.
[40] Cases such as R v. Stillman, [1997] 1 S.C.R. 607 can lead to the conclusion that on this basis alone, it is appropriate to grant the application and exclude the evidence. Were it necessary to do so, I would find that the compliance with a statutorily compelled breath sample can render the violation to be a serious one in circumstances such as this. There was ample opportunity for Cst. Betts to have inquired of witnesses such as Kimberley Gaudet-Theriault or other officers who had arrived on scene previously to obtain the necessary information to support his instinct that Mr. Wiles was the operator of the vehicle, and to have collected further information about the accused upon which he could have formed a reasonable belief that the accused was the operator of the vehicle and was impaired at the time of his operation of the vehicle.
[41] Admission of evidence which affects fairness of the trial tends to bring the administration of justice into disrepute and should generally be excluded. Where the conscripted evidence emanates from the accused and did not exist prior to the violation then it strikes at one of the fundamental tenets of a fair trial, the right against self incrimination. In the circumstances I am satisfied that the admission of the test results generated by an improperly based demand would bring the administration of justice into disrepute and therefore I exclude the test results.
ANALYSIS: Count 2 - section 255(2) CCC
[42] In order to do a proper analysis in relation to this charge a more detailed review of the evidence is necessary.
[43] Margaret Burrell and Thomas O’Donnell were operating a motor vehicle on Highway 101 near the Lawrencetown exit proceeding in an easterly direction. At approximately 7:30 p.m. both observed the lights of an oncoming vehicle traveling west bound but in their lane of travel. Mr. O’Donnell unsuccessfully tried to avoid the collision.
[44] Neither Ms. Burrell nor Mr. O’Donnell could identify the driver of the other vehicle and could offer no apparent reason for the collision. Both indicated that the conditions were dry, and although it was dark out, visibility was unobstructed.
[45] Ms. Burrell suffered a broken wrist as well as neck and back pain.
[46] Mr. O’Donnell suffered cuts to the forehead, whip lash, back pain and some psychological trauma.
[47] Mr. O’Donnell testified he observed an RCMP officer chase one of the occupants of the other vehicle up an embankment. That embankment carried up to an overpass to an area referred to as the “Elliott Road”.
[48] Kimberley Gaudet-Theriault was operating a west bound vehicle, following the vehicle operated by Mr. Wiles. She observed the accused’s vehicle swerve into the oncoming motor vehicle after which she pulled over to the road side and called 9-1-1. She observed two persons exiting the accused’s vehicle.
[49] She saw the two gather some things from the vehicle and heard a clink of bottles. She then saw the driver leading the way up the embankment. He dropped something, bent over and picked it up. The police arrived, by her estimate, approximately five to ten minutes later and forty to sixty minutes after that the accused was brought to her for a single person identification. She did identify Mr. Wiles as the operator but was not asked to look at a second person.
[50] Two points of significance in her evidence are:
1. The absence of information as to which of the police officers on scene received her information describing the two individuals who left the scene of the accident; and
2. Although she was following the accused’s vehicle, she offered no evidence to suggest that the accused was operating his vehicle in an unusual fashion prior to the single incidence of crossing the centre line into the oncoming vehicle. This becomes important in considering the weight to be given to Mr. Wiles’ evidence that he was not having difficulties operating the motor vehicle and that it was caused by a moment of inattention when he looked down to the console of his vehicle for a cigarette.
[51] Cst. Pyne was the first officer on the scene. He testified that after checking for injuries he received information from an unidentified male indicating that two males ran up the embankment to the overpass. He obtained a general description of the two and then followed foot prints up the embankment. On the way up the embankment he saw a broken beer box intended to hold 12 Labatt Blue beer bottles. He saw some Labatt Blue bottles at that site and later six beer were recovered from that site.
[52] Cst. Pyne says he followed the first set of prints, which if he is correct should have been the driver according to the evidence of Ms. Gaudet-Theriault. Approximately one kilometer from the scene he located a male now known to be Neil McBurnie. He placed him under arrest for impaired driving and a later search determined that he was in possession of a bottle of vodka.
[53] Cst. Michel Wetzel administered the breathalyzer test, the results of which I have concluded should be excluded from evidence.
[54] Cst. Ken Cook attended at the scene in response to a call from Cst. Pyne. He identified the area as exit 19 on Highway 101 and that upon his arrival he noted one person in Cst. Pyne’s custody. Cst. Cook conducted a search of the scene and seized a number of exhibits including:
1. A box for Labatt Blue bottled beer.
2. Six bottles of Labatt Blue beer on the path up the embankment where the box was located.
3. One bottle of Labatt Blue beer seized from Mr. Wiles.
4. One bottle of Labatt Blue beer located in the accused’s vehicle.
5. One bottle of vodka provided to him from Cst. Pyne.
6. One car stereo provided to him by Cst. Betts.
[55] He also received information from police files as to the height and weight of the accused which information was conveyed to Jean-Claude Landry for his calculations.
[56] His evidence that a bottle was located in the car would suggest that the case had been opened prior to the accident, a point that is inconsistent with the evidence of Mr. Wiles which would suggest that the alcohol in possession of he and his passenger had not been opened prior to the accident.
[57] The final witness for the Crown was Jean-Claude Landry. His report of July 10, 2008 was admitted into evidence. He offered an opinion that suggested the accused had a blood alcohol content, at approximately 7:45 p.m., in the range of 197 to 224 milligrams percent. He also offered an opinion as to subsequent consumption necessary to determine what the accused would have had to consumed between 7:45 p.m. and the second breathalyzer test at 2227 hrs. He sums it up as follows:
“In order for this individual to have had a BAC at the legal limit of 80 milligrams percent at 1945 hrs and 170 milligrams at 2227 hrs a minimum of 4.8 regular beers (341 ml, 5% alcohol v/v) which is equivalent to 7.3 ounces of hard liquor (40% alcohol v/v) would have had to be consumed after or within minutes prior to the conclusion such that none of this alcohol was contributing to his BAC when the offence occurred.”
[58] The final aspect of his testimony dealt with general impairing effects of alcohol on the ability of an individual to operate a motor vehicle.
[59] Essential to the opinion of Mr. Landry was certain information and assumptions. The breathalyzer test readings which have been excluded from evidence were necessary to his calculations. In the absence of that evidence then his calculations and conclusions cannot be afforded any weight. As well, in offering a range of 197 to 224 milligrams percent he assumed that the accused consumed no alcohol in the half hour prior to the accident, or from the time of the accident until the taking of the breath samples. There is no evidence supporting these assumptions.
[60] In the circumstances, I can place no weight on the evidence of Mr. Landry as it relates to calculation of the accused’s BAC levels. I accept his evidence with respect to the impairing effects of alcohol on the ability to operate a motor vehicle.
[61] Mr. Wiles gave evidence in his own defence. He acknowledged operating the motor vehicle at the time of the collision with the vehicle operated by Mr. O’Donnell.
[62] He says that at that time he was not licensed to operate a motor vehicle, did not have insurance, that the vehicle was not legally registered and that he was subject to an order of the court prohibiting him from consuming or possessing alcohol.
[63] He testified that he and his friend, Neil McBurnie, traveled to Greenwood where they did some shopping. While there Mr. McBurnie purchased the vodka that was subsequently seized and introduced into evidence. The accused indicates that he purchased the 12 bottles of Labatt Blue beer and a pint of Captain Morgan light rum. He denies consuming alcohol at any time prior to the motor vehicle accident.
[64] As indicated previously he says that the cause of the accident was a moment of inattention. He looked down towards the console of the vehicle for a cigarette and when he looked up he saw the lights of the oncoming vehicle. There was no time to avoid the collision. He says that he exited his vehicle and gathered the liquor and his car stereo to take with him. He offered that these had value and he does not have much money so did not want to leave these few things that had value to him behind.
[65] He says that he left the scene of the accident because of the various Motor Vehicle Act violations that he was committing as well as poor judgement that he attributes to shock and fear, not alcohol consumption.
[66] He says that he went into the woods to avoid apprehension. He was cold, frightened and his foot was hurting. It was later determined that the foot was broken. While there he consumed approximately half of the rum and four bottles of beer. This transpired between 7:30 p.m. and 8:50 p.m. He offered no explanation for a failure to bring the empty bottles or the liquor store receipt to court as evidence that might tend to corroborate his story.
[67] Some insight into Mr. Wiles’ attitude could be found in his testimony that he would not have consumed alcohol while driving since that location was too heavily policed. He said that he may have done so if he was “closer to home but not that far up the valley”. This suggests that he is certainly inclined to drink and drive. It is also an improbable story given that by operating the vehicle he was knowingly committing several offences irrespective of whether he was an impaired driver at that time, or of the greater police presence he alleges exists in that area.
[68] The last witness was Peter Mullen, also qualified to give opinion evidence which was based on certain assumptions that, for the same reasons as caused me to disregard the evidence of Mr. Landry, cause me to place no weight on the evidence of Dr. Mullen.
[69] I am mindful of the decision in R v. (W.D.), a decision of the Supreme Court of Canada setting out the approach to be applied where an accused has testified. In short, it is:
1. If I accept the evidence of the accused, then I would have to conclude that the offence is not made out beyond a reasonable doubt and he should be acquitted;
2. If I do not accept the evidence of the accused but am left with a reasonable doubt by it, then I must acquit;
3. If I reject the evidence of the accused then I must still determine whether a proper consideration of all the evidence proves the allegation against the accused beyond a reasonable doubt.
[70] I accept some but I do not accept all of the evidence of the accused, finding it to be selective and driven by his own self interest. I am confident that he is capable of making a decision to drive while impaired. Further, evidence that indicates that the beer case was opened in the car suggests that some alcohol may have been consumed by either he or his passenger prior to the accident.
[71] Having said that I must still consider what evidence is available to indicate whether the accused was impaired at the time of his care or control of the motor vehicle. The motor vehicle accident, caused by a moment of inattention, is equally consistent with an innocent act as with one caused by the consumption of alcohol. Mr. Wiles has provided an explanation - looking away just prior to the collision - which I accept as true. The evidence of Ms. Gaudet-Theriault, gives no indication of erratic driving prior to the accident. I would reasonably expect if Mr. Wiles was operating the vehicle unsafely that evidence would have been brought before the court.
[72] Mr. Wiles left the scene and was observed to stumble as he was going up the embankment. He has explained, and I accept based not only on his evidence but all of the evidence before me, that the stumble was from the combination of running on what was determined later to be a broken foot, in the snow, up hill, while carrying beer, rum and a car stereo. In fact, one might conclude that he exhibited a fair degree of coordinated motor skills to be able to exit the area as well as he did under these circumstances.
[73] His decision to leave the scene is equally consistent with the fact that he was in violation of a number of statutory provisions, irrespective of whether he was also impaired at the time of the operation of the vehicle. The fact that his passenger, Mr. McBurnie, also chose to flee the scene, though he was not a driver, is indicative of the fact that there may be many reasons for a person to leave the area.
[74] There is no other evidence upon which to determine whether Mr. Wiles was impaired at the time of his operation of the motor vehicle until his apprehension by Cst. Betts some 75 to 90 minutes after the accident. If in fact Mr. Wiles consumed no alcohol between the time of the accident and the time of his apprehension I would still have questions as to whether the evidence of Cst. Betts would support a conclusion that Mr. Wiles was impaired. The various officers who encountered Mr. Wiles after his apprehension did not testify as to indicia that would support a conclusion that he was impaired within the meaning of section 255 of the Criminal Code. Cst. Betts’ testimony would suggest that although he believed Mr. Wiles to be asleep or passed out, that Mr. Wiles responded immediately to being touched by him, a fact that is consistent with Mr. Wiles’ version that he was in fact simply trying to conceal himself from the officer at the time that Cst. Betts came upon him. The strong smell of alcohol is consistent with the subsequent consumption of alcohol. Mr. Wiles’ displayed anger does not offer any insight as to whether he was or was not impaired at the relevant time. Other officers who encountered Mr. Wiles after his apprehension included Csts. Wetzel and O’Connor. Neither provided information of indicia of impairment.
[75] If I were to rely on my instincts only I would conclude that Mr. Wiles had consumed alcohol prior to the accident and perhaps in such a quantity as it could have rendered him impaired at the time of the accident. However, the burden of proof rests with the crown to prove beyond a reasonable doubt the guilt of the accused as to all the essential elements of the offence charged. There is no admissible empirical evidence to say that Mr. Wiles’ BAC exceeded the legal limit at the time of his operation of the motor vehicle. There is insufficient evidence to establish impairment at the time of the operation of the vehicle. I cannot, on the basis of the evidence before this court, conclude that the Crown has met its burden and therefore I find the accused not guilty in relation to both counts 1 and 2 as set out in the indictment.
Decision delivered orally at Digby, N.S. on January 7, 2009.
Duncan, J.