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CRIMINAL CODE OFFENCES - Motor vehicles - Impaired driving or driving over the legal limit - Breathalyzer or blood sample demand - Certificate of analysis

Wednesday, May 03, 2017 @ 8:32 AM  

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Appeal by the Crown from the acquittal of the accused, Schofield, of driving with an illegal blood-alcohol level. Following a traffic stop and interaction with police, the accused was taken to an RCMP detachment for the provision of breath samples. The arresting officer gave the accused a copy of the Certificate and Notice of Intention. The accused was detained thereafter until his release. At the first trial, the Certificate was excluded due to a lack of sufficient grounds for the breath sample demand. The Crown successfully appealed. At the second trial, the Certificate and Notice were introduced as an exhibit without objection by defence counsel. The defence called no evidence. During final submissions, the defence argued the accused was never provided with a copy of the Certificate and Notice, as it had been taken away from him on the night of the offence prior to his detention. The defence submitted there was no evidence the Certificate and Notice were returned to the accused upon his release. The Crown argued that the marking of the Certificate and Notice as exhibits at the first trial constitute sufficient proof of provision to the accused. The trial judge found insufficient proof of service and entered an acquittal. The Crown appealed.

HELD: Appeal allowed. The second trial judge ignored relevant evidence by failing to consider that the prior introduction of the Certificate and Notice as exhibits at the first trial's voir dire met the requirements of s. 258(7) of the Criminal Code. The fact that the defence sought exclusion of the Certificate at the first trial indicated that defence counsel knew the contents of the Certificate and of the Crown's intention to produce it. Notice to counsel constituted notice to the accused. The notice requirement in s. 258(7) of the Code was procedural and did not specify a method. The purpose of the notice was to ensure the accused knew the case to be met. A second Certificate was not required for a second trial. The second trial judge's rejection of the Certificate constituted a reversible error. The acquittal was set aside and substituted with a conviction.

R. v. Schofield, [2017] N.S.J. No. 120, Nova Scotia Court of Appeal, C.A. Bourgeois, M.J. Hamilton and E. Van den Eynden JJ.A., April 12, 2017. Digest No. TLD-May12017008