Cite as: R. v. States, 1993 NSCO 10 1992 C.D. 3300 IN THE SUPREME COURT OF NOVA SCOTIA HER MAJESTY THE QUEEN Appellant - versus -ELAINE BONITA STATES Respondent HEARD: At Digby, Nova Scotia, on the lOth day of February, A.D., 1993 BEFORE: The Honourable Mr. Justice Charles E. Haliburton CHARGE: Section 253 (a) of the Criminal Code. DECISION: Orally on the lOth day of February, A.D., 1993. COUNSEL: v. Blaine Allaby, Q.c., for the Appellant Michele Cleary, for the Respondent D E C I S I 0 fill 0 N A P P E A L
1. HALIBURTON, J. (Orally) This is an appeal by the Crown from the acquittal of Elaine Bonita States on a charge under Section 253{b) Criminal Code that: "On or about the 8th 1992, at or near Smith's County of Digby, Province of Nova Scotia, did having consumed quantity that the concentration thereof her blood exceeded eighty alcohol in one hundred blood, did operate contrary to Section Criminal Code." The appeal, as Defence on the narrow ground that the rights of Miss States under the Canadian Charter of Rights and Freedoms had been abridged by Policeman, on the night in question. While Judge Nichols does in his decision, the issue relates to Section 10 {b), that is the right to counsel or particularly perhaps, the right to be informed of the right to counsel. The circumstances are very simple. the night in question, the early morning hours of the morning in question, I should say, was who is employed at C.F.B. Cornwallis as a Military Policeman. He was operating a Military Military Police uniform. He of the day of Feburary, Cove in the alcohol in such a i milligrams of millilitres of a motor vehicle, 253 {b) of the Counsel has pointed out, is Judge erred in finding that Corporal Prosper, a Military not specify which "right" Miss States on observed by Corporal Prosper Police vehicle. He was in observed this vehicle when
2. returning to the Base from the driven in an erratic fashion, causing him some concern. result of his perception that the driver was impaired, he made radio contact with the R.C.M.P. instructed to stop the veh:Lcle until the R.C.M.P. could arrive. He did so. He stopped emergency equipment on his vehicle. over and stopped, he approached preliminary questions, as a obtained her license and insurance some observations of the occupant. "told" her to remain there is a matter of dispute between the parties but I've concluded a matter of no great import in how I must deal with the matter. They remained there, the Cpl. Prosper in his car and the accused in her car for some Police Constable arrived, the R.C.M.P. made a proper breathalyzer demand States of her right to counsel as required by the Charter. For purposes of the noted that as a result of that States was co-operative. She did go with the Police Officer to the R.C.M.P. Detachment in Digby where breathalyzer samples Town of Digby. It was being As a Detachment in Digby and was and ask the driver to remain the vehicle by using the When the vehicle pulled the driver: asked a few policeman would have done: card and so on: andmade Whether he "asked" her or 20 to 30 minutes when the Constable arrived who and properly advised Ms. record, perhaps it should be breathalyzer demand, Miss
3. of her breath were made at 3:29 and at 3:50 in the morning, registering readings of 230 and 220 respectively. The driver was seriously impaired. There's no question about that. Judge Nichols, at the conclusion of the trial, found that: "Miss States was unduly denied her rights under the Charter... she was detained by the MP and as a result of him not giving her her rights the delay was longer than approximately half an hour so I'm satisfied that ... (her Charter rights were abridged), and I find her not guilty of that offence." I am conscious of the fact that this appeal is taken on the narrow ground that Judge Nichols incorrectly found that the Charter rights of the accused had been abridged. I invited discussion from Counsel as to whether the exclusion of the Certificate evidence was the only or even the appropriate remedy in the circumstances. Defence Counsel, arguing in relation to that point, urges that this Court need not refer to Section 24 of the Charter, at all. The remedy to be granted, which is granted by the trial judge under Section 24 may or may not be a matter that is entirely within his province to decide. But Defence Counsel argues that whether or not the remedy granted was the correct one, is not before this Court to decide, that the only thing to be reviewed on this appeal is whether or not the rights of the accused under the Charter of Rights were abridged.
4. Defence Consel has findings in Therens case which was well known after 1985, less current today. The situation were such that Miss States would think that she was being stopped by an agent of the state who had authority to stop her. There was the uniform: there was the pol ice vehicle: ther·e was Whether or not the Police Constable, Policeman had the right to arrest her or not arrest her or an obligation to .•• whether he had the right to arrest her or not arrest her, is not in issue. The perception that Miss States would the circumstances is perhaps considering the Therens argument. Perhaps I can gra.tuitiously say that it might have been more appropriate had Corporal Prosper assumed that he had all of the authority of a police officer and done what he knew was correct and advise her why she was stopped and indicate to her that she had an immediate then, I suppose, have faced an action for wrongful arrest as a citizen not clothed with that authority. scenario. In any case, on the appeal has been taken, I find that I reminded the Court of the here was that, circumstances have had every reason to the emergency equipment. the M.P., Military have had of the important factor in right to counsel. He might It's a troubling narrow grounds on which the agree with the conclusion
• 5. of Judge Nichols that Miss States, at least subjectively, was detained and that the Chartt:!r required that she be given her right to counsel and on tha.t narrow ground, I would dismiss the appeal without costs to the Respondent. DATED at Digby, in the County of Digby and Province of Nova Scotia, this lOth day of February, A.D., 1993. J. TO: J. R. Patrick Mcintyre, Esq. Prothonotary Court House DIGBY, Nova Scotia BOV lAO
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