• Cite as: R. v. Elliott, 1989 NSCO 11 C.D. #2500 IN THE COUNTY COURT OF DISTRICT NUMBER THREE BETWE,EN; HER MAJESTY THE QUEEN APPELLANT - and -LAWRENCE KEVIN ELLIOTT RESPONDENT ' HEARD: At Digby, Nova Scotia, on January 25th, 1989 BEFORE: The Honourable Judge Charles E. Haliburton, J.C.C. CHARGE: Section 238(5) of the Criminal Code DECISION: The 6th day of February, A.D. 1989 COUNSEL: Mr. Lloyd Tancock, Esq., for the Appellant Ms. Michele Cleary, for the Respondent D E C I S I 0 N 0 N APPEAL
~ HALIBURTON, J.C.C. This is an appeal on behalf of the Crown against the acquittal of the Accused on a reaso ' nable excuse refuse to comply samples of his breath suitable for a breathalyzer analysis under s. 238(5) of the Criminal Code. breach of s.lO(b) of the Charter of Rights and Freedoms. The background of the matter, Accused, who testified on his trial, was detained by Constable Emeno of the R.C.M.P. in Freeport, village on Long Island and is travelling time from Digby. The Accused, in his evidence, time in question, he had "a buzz on" as a result of drinking. Because of a dispute, he drove his own motor vehicle into that of a former girlfriend. The Accused then left the scene of that incident, and a complaint was located by Constable Emeno still operating his vehicle or 45 minutes later. Constable Emeno testified that he followed the vehicle which had a shattered windshield and, found the Accused to be the operator. the Constable testified (page 11): ... he smelled of alcoholic somewhat unsteady on his feet, p.m. I gave him his demand. charge that he did without with a demand to provide The acquittal was based on a briefly, is that the Digby County. Freeport is a approximately one hour in conceded that at the made to the police. He was some 40 when it was stopped, he In direct examination, beveragc, ah, ah, at 8:00 rights and the ALERT
- 2 -After the Accused failed the demand was made. As a result of that demand, testified (page 12): He said that he wasn't going to take the breathalyzer. And later: I went through it again just, the demand again, but that, ah, if he didn't basically he would be charged with the charge as if he had taken it and failed the breathalyzer test. He he would take the test. take it". The Constable then described ' Accused who was generally cooperative. Accused, he observed that there containing 11 sealed beer bottles. Of significance in this exchange between the Prosecutor and witness (page 13): Question: Urn, at this stage, discussion of counsel? Answer: Ah, nothing further to his initial (SiC) being advised that ah, to speak to counsel. On cross-examination, Charter question more fully. (page 16): Question: Did he say relation to your having told Section lO(b) rights? ALERT, a breathalyzer Constable Emeno I didn't read I explained to him take the test, same then decided that he, He said, "ok, I'll the behaviour of the In the vehicle of the was a 24-bottle beer case appeal is the following was there any he had the right 1 Defence Counsel pursued the anything to you in him about nis
- 3 -Answer: Pardon me? Question: Did you ask him if he understood? Answer: Yes. Question: His Section lO(b) rights? Answer: Yes. Question: What did he say? Answer: He acknowledged that he understood and I was satisfied that he understood. And later, page 18: Question: Did you ask him if he wanted to talk to a lawyer? Answer: I don't recall if I did or not. Question: Did he say anything to you about wanting to talk to a lawyer at that time? Answer: No. Ques-tion: Did he say anything about not wanting to, did he make any reference to that at all, that you recall? Answer: Not that I recall. And again: Question: Did he at any point in your conversations with him throughout this procedure indicate to you anything about wanting to see a lawyer? Answer: No. The Ac~used, as indicated earlier, gave evidence himself. With respect to the subject of his "right to Counsel", his evidence was essentially a denial that his s. 10 (b) rights had been communicated to him at all. (page 32):
- ' Question: Ah, do you recall any discussion with him about your instruct counsel without delay? Answer: No, he never asked me that. Question: Did you remember that before-he gave you the ALERT demand? Answer: No, he didn't because if he had've I would have asked to go into Lindsay's house and call a lawyer. Irrelevant to the particular issues appeal is the Accused's testimony that on reaching the R.C.M.P. Detachment in Digby, he was advised of his right to counsel and did, in fact, speak to Counsel. After speaking to Counsel, ' response to the breathalyzer demand which yielded 160 milligrams per cent and refused to provide a further sample. GROUNDS OF APPEAL The Notice of Appeal sets forth the following grounds: 1. That the learned Trial Judge erred in holding that the accused's rights were officer's not allowing the accused to contact counsel prior to being transported to the police detachment; 2. That the learned Trial Judge erred in holding peace officer must, after giving a demand for a breath sample, give the subject the immediate opportunity to exercise his rights to counsel regardless of where he is; 3. That the learned Trial Judge erred in holding tl.at had the accused been given the opportunity to use telephone at the place of transporting the accused avoided thereby violating rights to receive counsel; 4 - right to retain and him asking you raised on this he furnished one sample in a reading of violated by the peace a a arrest the necessity of to Digby may have been the accused's immediate
5 4. Such other grounds as may appear upon examination of the transcript. ' At the time of argument, it appeared that the real essence of the appeal is reflected in the position advanced on behalf of the Crown that: In the absence of some explicit or indication by the accused exercise his right, there was upon the peace officer provide the accused opportunity and time to retain and instruct counsel "at the point of detention". The decision of Judge hereunder set forth in full: Well, I'm going to dismiss it on that basis, having read Menzies and ' cited, 49 M.V.R. 10, and 49 M.V.R. 1, I think Constable Emeno said he gave him his rights, but he said he's not going to, his right to counsel until he got back to the office, and yet Mr. Elliott was handy a phone, could have used the phone, and transportation all the way into the, into the detachment. Well, a perusal of the case law seems to indicate that when you give them the demand, you have to give and give them the opportunity to exercise those rights, regardless of where you are and notwithstanding you might be on the Island or somewhere else. In response to the issue Defence Counsel responds with the following question the essential issue: Did the Learned Trial finding that the accused reasonable opportunity to retain and instruct Counsel "without delay"? -implied of a desire to no obligation to go further and with a reasonable Nichols on the trial is McKane that . you might have saved them their rights advanced by the Crown, as being Judge err in law in was not offered a
- 6 ' She argues that the decision at the conclusion of the trial "was a finding of fact". Counsel's interpret~tion is that the T ' rial Judge concluded that the Accused "was not afforded a reasonable opportunity to exercise his right to Counsel. decision was based on the evidence evidence." R. v. Hamilton (1985), brother, Hall J.C.C., is cited as "that a reasonable opportunity must be extended at the time of detention and not an hour later". The arguments advanced Respondent/Accused in this case render it necessary to consider the facts as found by the Trial Judge and the evidence on which those findings are based. The Conviction Appeal Court under the Court to approach findings of decision of the Appeal Division of the Scotia said in Regina v. Gillis 60 C.C.C. A verdict of acquittal aside where it is unreasonable or cannot be supported by the evidence. test, it is not the duty of the Appeal Court to retry the case, and findings of issues of credibility should only be interfered with in very rare circumstances. Drawing on the flndings of the Supreme Court of Canada in Yebes v. The Queen 36 c.c.c. The Ship "Kathy K" et al (1976) (., nonetheless, the obligation of the Appeal - This and is supported by the 39 M.V.R. 69 decided by my supporting the proposition by Counsel for the duties imposed on a Summary Criminal Code require the fact with- some caution. A Supreme Court of Nova (2d) 169, at page 176: should only be set In applying that (3d) 417 and in Stein et al v. 2 S.C.R. 802, it is, Court to re-examine
- and re-weigh the evidence, and to determine whether the verdict is one which a properly instructed could reasonably have rendered. I the Appeal Court is free to draw its own inferences from proven facts while taking into account Trial Judge. The inferences adopted on the appeal unless there are cogent reasons for not doing so. Whether there is any evidence at all to support the findings of fact is, of course, reviewable. Questions of credibility are for the Trial Judge. In her submission, Counsel for the Respondent asserts that the Judge, at the conclusion of the trial, made of fact that the Accused had opportunity to exercise his right to counsel finding was based on the evidence. transcript does not support that relating to the issue is fully set out above. advice given to the Accused by the police constable that he had the right to consult a lawyer evidence before the Trial Court with respect to any opportunity afforded to the Accused to exercise his right. inquiry made by the Accused as rights or when, and there is indication from him that he had any interest in doing so. Further, the words ~ delivering his decision do not support the proposition advanced by Defence Counsel that there was a finding of fact by the Judge 7 jury, acting judicially, In reaching these conclusions, the inferences drawn by the drawn on the trial should be a question of law and is clearly a finding not been afforded a reasonable and that such a A careful review of the proposition. The evidence Aside from the without delay, there was no There was no to how he might exercise his no evidence of the slightest used by the Trial Judge in
- 8 - ' that Elliott had not been afforded a "reasonable opportunity" He said: When you give them the give them their rights opportunity to exercise regardless ••.. Adopting these words literally would notification and the exercise of the right are to be considered in one time frame -that is, "forthwith". to be a statement of the law, then I must respectfully disagree. It is clear that while the notification or caution is to given forthwith (not immediately), the exercise of the right is to be permitted at the first "reasonable opportunity". ' The first "reasonable opportunity" the Accused indicates a desire to speak to Counsel, if he behaves or reacts in such a manner as to make it uncertain what his desire is. Other factors case, for example, the time breathalyzers, the peaceful removal of the suspect from an area of conflict, the availability of a telephone. To the extent that the words used by Judge Nichols in his decision might be interpreted as had been deprived of a right conclusion is not supported by evidence which would reasonably support a finding that Constable Emeno told the Accused he could not contact Counsel until he was (., brought to "the off ice" in Digby. that the Accused discussed contacting Counsel at all, and indeed . demand, you have to and give them the their rights, mean that the If that was intended be would arise after or perhaps may well apply in a given constraints imposed by a finding that the Accused he desired to exercise, his the evidence. There is no There is ·no evidence in fact
- 9 ~ the Accused denies any such discussion. he was advised of his right "immediately", the Trial Judge accepted that as fact. What does seem implicit in the decision of the Trial Judge is that he found, as a fact, given the Accused his Charter lO(b) caution. his decision assume the demand had been given case law cited as establishing that the officer not only had to give him his rights but also give him the opportunity to exercise those rights, regardless of notwithstanding you might be on the Island or somewhere else. ' A review of some of the section lO(b) is required to deal with the issues raised. Canadian Charter of Rights, Annotated, number of cases bearing on this specific issue. Regina v. Shields (1983), 6 C.R.R. 194, If such person wishes to retain and instruct counsel, he must be afforded the opportunity to do so at that time and without delay. At page 15.2-9, Regina v. Kelly ( On t . C . A . ) : The requirement that the accused be informed "promptly~ of the reason for the arrest means that he be informed "immediately". the requirement that the accused be informed of the right to counsel not the same as immediately. - There was evidence that and it is clear that that Constable Emeno had The words used in and rely on the where you are and cases dealing with Charter The 1988, C.L.B. reviews a At page 15.2-8, (Ont. Co. Ct.): (1985), 17 C.C.C. (3d) 419, However, •without delay• is
- 10 -At page 15.2-10, in Regina v. Baig ( On t . C • A • ) : In this case, there was any evidence that the asked for an opportunity instruct counsel ... His failure to acknowledge explicitly that he understood his rights or his failure to request exercise his right to counsel did not circumstances justifying his constitutional rights had been violated. At page 15.2-14, in R. v. Mohl (1987), C.A.), after advising the detainee of his section lO(b) rights, the arresting officer must: give the accused the opportunity to exercise that right, and not to require the accused to provide evidence which prior to affording ' opportunity to make a retain and instruct counsel. At page 15.2-14a, in Regina v. Elgie (1986) C.A.): It is only when the accused chooses to invoke or exercise his right to retain counsel that the officer must then reasonable opportunity and time to retain and instruct counsel. And Regina v. Sheppard (1987), 48 M.V.R. 6, it is incumbent upon the authorities to take positive steps to permit telephone a lawyer, particularly detained person has. already opportunity to do so. At page 15.2-14h, in R. v. MacCormack (1988), (P.E.I. S.C.): Simply to inform an existence of a right individual no opportunity to (1985), 20 C.C.C. (3d) 515, a total absence of accused desired or to retain and an opportunity to retain and instruct constitute special a conclusion that 56 C.R. (3d) 318, (Sask. may incriminate him him the reasonable reasoned choice to 48 M.V.R. 103, (B.C. provide him with a (Nfld. S.C.): an accused to when the requested an 4 W.C.B. (2d) 379, individual of the and to offer that exercise that
- 11 right is to make a sham. of the whole ' procedure. An officer giving an accused his rights under this paragraph must explain in concise and understandable terms that he has the right to retain and instruct counsel, and that he will be given an opportunity to do so as soon as he is taken to police headquarters, and must satisfy himself that the accused understands this. The officer must make a telephone available to the accused upon his arrival at headquarters and permit the accused to use it. At page 15.2-14j, in Regina v. Solonas (1982 B.C. Prov. Ct.): An accused's right to retain and instruct counsel as guaranteed by this paragraph is not infringed where the accused makes no request for counsel. At page 15.2-14k, in Regina v. Fallowfield (1983), 24 M.V.R. 97 (B.C. Co. Ct. ) : While it was held that the right to consult counsel includes the right to do so in ' private, there is no denial of the right 'to counsel when the accused does not complain of the facilities provided. At page 15.2-141, in Regina v. Fairweather (1982, Ont. LeSage, Co.Ct.J.): This paragraph does not impose an obligation on the police to invite a person under arrest to make a telephone call to a lawyer, or otherwise positively promote the calling of counsel. The only obligation on the police is to facilitate the making of a call in any way possible when an accused requests that he be permitted to make such a call. At page 15.2-15, in Regina v. Sabourin (1984), 13 C.C.C. (3d) 68, (Man. C.A.): .. the onus is on him to request counsel or express a desire to contact one. It need not be shown that the accused, having been informed of his right to retain and instruct counsel, specifically waived that right ..
- 12 -At page 15.2-16, in Regina v. Dombrowski (1985), 18 C.C.C. 164, (Sask. C.A.): .. the accused was advised that right to retain and instruct that he would be permitted to do so at the police detachment. The clear inference was that he could use the detachment but not before. was offered for not granting telephone at the place amounted to an unjustified limitation of the right to retain counsel. statements made in response to questioning on the way to the (police) station were obtained in violation of the Charter and, circumstances of the case, were excluded. At page 15.2-19, in R. v. Naugler (1986), (N.S.C.A.): .. this paragraph imposes upon the detainee to provide that evidence without first providing him with a reasonable opportunity to retain and instruct counsel. At page 15.2-25, in R. v. Manninen (1987), ( S . C. of Can. ) : This paragraph imposes at least two duties on the police in addition to the duty to inform the detainee of his rights. police must provide the reasonable opportunity to exercise the right to retain and instruct counsel without delay. Secondly ..• the duty questioning .. until ... The accused, following informed of his right indicated that he wanted to speak to counsel and would say nothing until he had done so. Notwithstanding that telephone was irr'tlediately police began to question the accused. (Statements excluded~) (3d) he had the counsel, and telephone at the No explanation access to a of work. This Accordingly, oral in all the 72 N.S.R. (2d) 271, a duty not to call 34 C.C.C. (3d) 385, First, the qetainee with a to cease his arrest, was to counsel and fact and that a available the
- 13 This view of s. lO(b) Court of Canada in a recent decision R. 19176, January 19, 1989. In the majority, the Court spoke again of the two duties imposed on the arresting officer. Then went on to say: Once a detainee has asserted his right to counsel, the police cannot, compel the detainee to participate in a process ultimately have an adverse conduct of an eventual person has had a reasonable opportunity to exercise that right. While there is clearly amongst the various courts cited ~ covered, it is apparent that there is no denial of the right to counsel "immediately" unless the reasonable clarity 'his desire to contact counsel. is very much analogous to the finding with respect to "privacy". Fallowfield followed the decision of the Supreme Court of Canada in Jumaga v. C.C.C. (2d) 269 on the question of the right to consult counsel in private. There, the Supreme accused makes some complaint about the facilities provided, his right to privacy has not been infringed. It is the evidence elicited from the the time of the breach and the exercise his right to consult counsel that is to be excluded in any event. No such evidence is before the Court in the case of Mr. Elliott. That was the case in Manninen and Dombrowski cited -was reiterated by the Supreme v. LeClair & Ross, No. decision of Beetz, for the in any way, make a decision or which could effect in the trial until that some difference of opinion over the five-year period accused has indicated with That result in Fallowfield (above) The Queen (1976), 29 Court held that unless the accuc;ed between time when he does, in fact,
- 14 above. In Dombrowski, the Saskatchewan that there was an infringement where he was taken from his place effect, that he would not be permitted to consult counsel until he arrived at the police detachment. is very like the situation in Hamilton cited by Counsel herein. It is readily distinguishable from the case against Elliott. Hamilton, the evidence established, as in Dombrowski, accused was advised that he could call a lawyer when he got back to Bridgetown "if he so wished". at Kejimkujik National Park, a one-hour drive detachment. As Judge Hall says: The evidence also revealed that telephone facilities at the park ... there was ' a telephone conveniently available where the appellant could have opportunity of consulting being required to respond to the demand .. At page 76: The fact is that the appellant did make mention of talking to a by the police officer that he could "call lawyer at Bridgetown", implying that he would not be permitted to call his arrival at the R.C.M.P. detachment there. This of course wouid have involved a delay of at least 1 hour and would have been after he was required to respond to the "demand". Counsel for the Crown quotation in Hamilton (page 76): In my opinion, in ordinary circumstances, motorist should not be required to respond to Court of Appeal held of the rights of the accused of work and was told, in That case, it seems to me, In that the The accused had been arrested from the police there were been afforded the a lawyer before some lawyer. He was told a a lawyer prior to refers to the following a
- 15 a demand ... until after he ..• has been afforded ' a reasonable opportunity to consult counsel should he so desire. Counsel for the Crown, M.V.R. 103, contends that there arresting officer to go further than to advise the detainee of his :right to counsel unless the arrested party signifies his desire to contact counsel. In response to the same argument as that raised for the defence in this case, the British Columbia Court of Appeal approved comments Mr. Justice Callaghan of the Supreme Court as Summary Conviction Appeal Court, when he said (page 108): In my view, the Crown need not go that far. The officer detaining course, has an obligation ' clearly to him that he retain and instruct counsel. circumstances he may have explaining the right if, actions of the accused, or his statements, he appears not to understand his rights. it is only when the accused chooses to invoke or exercise his right to retain and instruct counsel that the officer must him with a reasonable opportunity and time to retain and instruct obligation to provide the applicant with reasonable opportunity and time to retain and instruct counsel comes only after a for counsel has been made. Defence Counsel before me relies on R. decision of the Ontario Court of Appeal, reported at 10, which was considered in Elgie, the conclusion of which the British Columbia Court of Appeal specifically disagreed with. relying on R. v. Elgie 48 is no obligation upon the Mr. Justice Craig of made by the individual, of to communicate has the right to In some to go further in because of the Surely then provide counsel ..• the .•. a request v. Menzies, a 49 M.V.R.
- 16 -Counsel for the defence argues that Menzies is authority for the - proposition that s. lO(b) imposes upon the accused a duty not only to inform the detainee of his right to counsel but-also to provide him with a. reasonable opportunity and time to retain and instruct counsel. There can be no doubt of the accuracy of that quotation as a proposition of law but with great deference to the interpretation of the B.C. Court in Elgie, I do not understand that proposition to be the "ratio" in the Menzies case. The Ontario Court, in Menzies, as I read that case, determined nothing more than that the Trial Judge had failed to consider whether or not the detainee had been provided such a "reasonable ' opportunity" and determined that; the Trial Judge having failed to give that aspect of s. lO(b) any consideration; it was within the province of the Summary Conviction Appeal Court Judge to make his own finding of fact on that question. The decision of the Ontario Court is contained in the following quotation: The Summary Conviction Appeal Court Judge, having jurisdiction over questions of fact as well as questions of law, essentially, found as a fact that the respondent, in the circumstances, had not been afforded a reasonable opportunity to retain and instruct counsel. MacKinnon A.C.J.O., then goes on to say: There was evidence to support this finding (by the Appeal Judge) and he was entitled to make it on that evidence.
- 17 - ~ Mr. Justice MacKinnon then declined finding of fact. It will be seen that, in my view, there is no conflict between the decisipn of the British Columbia Court in Elgie and the Ontario Court in Menzies. Both decisions turn on a question of fact which is whether or not the detainee has been accorded a "reasonable opportunity and time counsel". The onus is on the Accused to establish on of probabilities that his Charter right has been abridged. the Hami 1 ton case above, the accused had been arrested by the warden of the National Park who constable to the scene by telephone. "c6nveniently available" to the place between the detainee and the police constable with respect to contacting counsel and the accused was advised "you will have to wait". Accordingly, there was determine that the accused had not counsel "at the first reasonable having indicated his "desire" to do so. In the case before me, arresting officer and the Accused discussion as to how and when the access to counsel provided and there was no expressed desire Accused to consult counsel. He did, however, exercise his right to consult counsel after being detachment at Digby. There is no suggestion that any evidence was obtained from the Accused between the time of his detention to interfere with that to retain and instruct a balance In had summoned the police This telephone was detainee. A discussion took a factual basis upon which to been permitted to consult opportunity", the accused the evidence of both the is that there was no would be on the part of the returned to the R.C.M.P.
- 18 ~ and the time when he actually consulted counsel. of the cases I have cited, there is reasonably bear the interpretation right infringed to have a "reasonable opportunity and time to retain and instruct counsel". In response to the issues raised would conclude that, in the absence of a desire communicated by the detainee to exercise his right obligation on the arresting officer to afford him opportunity to do so "at the point of detention". the Learned Trial Judge did err Accused was entitled to have instruct counsel, where he displayed no wish to do so. The appeal is allowed and the Accused is convicted on the charge herein. I am not aware of any special considerations taken into account in relation to notice on file that the Crown is proceeding by way conviction or is seeking an increased circumstances, the penalty will Fifty ($750.00) Dollars to be paid within sixty (60) the date herein. The Respondent will have his license suspended under the provisions of the Criminal year. - In the context no evidence which could that the Accused had his by the parties, I to counsel, there is no a reasonable I find that in law in finding that the a reasonable opportunity to to be sentencing. There is no of second penalty. In these be a fine of Seven Hundred, days from Code for a period of one
- 19 - ' DATED at Digby, Nova Scotia, this 6th day of February, A.D. 1989. g..-:2_4-QAA_ CHARLES E. HALIBURTON JUDGE FOR THE COUNTY COURT OF DISTRICT NUMBER THREE TO: Clerk of the County Court P.O. Box 668 Digby, Nova Scotia BOV lAO Mr. C. Lloyd Tancock, Esq. Crown Prosecutor P.O. Box 1449 ' Digby, Nova Scotia BOV lAO Solicitor for the Appellant Ms. Michele J. Cleary Barrister & Solicitor P.O. Box 1030 Digby, Nova Scotia BOV lAO Solicitor for the Respondent CASES CITED: R. v. Hamilton (1985), 39 M.V.R~ 69 Regina v. Gillis 60 C.C.C. (2d) 169 Yebes v. The Queen 36 C.C.C. (3d) 417 Stein et al v. The Ship "Kathy K" et al (1976) 2 S.C.R. 802 Canadian Charter of Rights, Annotated, 1988
- 20 -Regina v. Shields (1983), 6 C.R.R. 194, (Ont. Co.Ct.) ' --~-------------Regina v. Ke 11 y ( 19 8 5 ) , 17 C. C. C • ( 3d) 419, (On t • C. A. ) --~----------~ _R_e ...g.::....i_ _n_a_ _v_. __B_a ~ ig (1985), 20 C.C.C. (3d) 515, (Ont. C.A.) R. v, Mohl (1987), 56 C.R. (3d) 318, (Sask. C.A.) Regina v. Elgie (1986), 48 M.V.R. 103, (B.C. C.A.) Regina v. Sheppard (1987), 48 M.V.R •. 6, (Nfld. S.C.) R. v. MacCormack (1988), 4 W.C.B. (2d) 379, (P.E.I. S.C.) Regina v. Solonas (1982 B.C. Prov. Ct.) Regina v. Fallowfield (1983), 24 M.V.R. 97, (B.C. Co.Ct.) Regina v. Fairweather (1982, Ont. LeSage, Co.Ct.J.) Regina v. Sabourin (1984), 13 C.C.C. (3d) 68, (Man. C.A.) Regina v. Dombrowski (1985), 18 C.C.C. (3d) 164, (Sask. C.A.) R. v. Naugler (1986), 72 N.S.R. (2d) 271, (N.S.C.A.) R. v. Manninen (1987), 34 C.C.C. (3d) 385, (S.C. of Can.) ' R. v. LeClair & Ross, No. 19176, January 19, 1989 Jumaga v. The Queen (1976), 29 C.C.C. (2d) 269 R. v. Menzies 49 M.V.R. 10
CANADA PROVINCE OF NOVA SCOTIA COUNTY OF DIGBY C.D. 2500 IN THE COUNTY COURT JUDGE'S CRIMINAL COURT OF DISTRICT NUMBER THREE ON APPEAL FROM THE PROVINCIAL COURT 'BETWEEN: HER MAJESTY THE QUEEN -and-LAWRENCE KEVIN ELLIOTT HEARD BEFORE: His Honour Judge John R. Nichols, J.P.C. PLACE HEARD: Digby, Nova Scotia DATES HEARD: February 26th, March 3rd and March 17th, 1988 CHARGE: That he at or near Digby in the County of Digby, Nova Scotia, on or about the 13th day of June, 1987, did without reasonable excuse refuse to comply with a demand made to him by a peace officer, to provide then or as soon thereafter as 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 238(5) of the Criminal Code. COUNSEL: M. Alison Crowe for the Prosecution Lorenne M. G. Clark for the Defence C A S E 0 N APPEAL
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.