R. v. Corey, 2011 NBCA 6

COURT OF APPEAL OF NEW BRUNSWICK 104-10-CA HER MAJESTY THE QUEEN APPELLANT SA MAJESTÉ LA REINE APPELANTE - and - - et - THOMAS ROSS COREY RESPONDENT THOMAS ROSS COREY INTIMÉ R. v. Corey, 2011 NBCA 6 R. c.

Corey, 2011 NBCA 6 CORAM: The Honourable Chief Justice Drapeau The Honourable Justice Quigg The Honourable Justice Green CORAM : L’honorable juge en chef Drapeau L’honorable juge Quigg L’honorable juge Green Appeal from a decision of the Provincial Court: July 2, 2010 Appel d’une décision de la Cour provinciale : Le 2 juillet 2010 History of Case: Historique de la cause : Decision under appeal: Unreported Décision frappée d’appel : Inédite Preliminary or incidental proceedings: N/A Procédures préliminaires ou accessoires : s.o.

Appeal heard and judgment rendered: November 30, 2010 Appel entendu et jugement rendu : Le 30 novembre 2010 Reasons delivered: January 20, 2011 Motifs déposés : Le 20 janvier 2011 Reasons for judgment by: The Honourable Chief Justice Drapeau Motifs de jugement : L’honorable juge en chef Drapeau

Concurred in by: The Honourable Justice Quigg The Honourable Justice Green Souscrivent aux motifs : L’honorable juge Quigg L’honorable juge Green Counsel at hearing: For the appellant: Christopher R. Lavigne For the respondent: James C. Crocco Avocats à l’audience : Pour l’appelante : Christopher R. Lavigne Pour l’intimé : James C. Crocco THE COURT The appeal is dismissed. LA COUR Rejette l’appel. The judgment of the Court was delivered by DRAPEAU, C.J.N.B. I.

Introduction [ 1 ] This is an appeal against the respondent’s acquittal in the Provincial Court on two charges under the Criminal Code : (1) operating a motor vehicle while his ability to do so was impaired by alcohol thereby causing bodily harm to a passenger, Alex Carter Drost (ss. 253(1)(

a) and 255(2)); and (2) causing an accident resulting in bodily harm to Mr. Drost while operating a motor vehicle after having consumed alcohol in such a quantity that the concentration thereof in his blood exceeded 80 milligrams in 100 milliliters of blood (ss. 253(1)(

b) and 255(2.1)). [ 2 ] Following a single car accident (in which one of his passengers sustained comparatively minor injuries) and a demand under s. 254(3), the respondent provided two breath samples which were received into an approved instrument operated by a qualified technician.

The results of the analysis of each of those samples showed the concentration of alcohol in the respondent’s blood exceeded the allowable limit. [ 3 ] It is common ground that the prosecution’s success, in respect of both charges, hinged upon the evidence of those results and their relation back to the time of the offence, either through expert evidence or by application of the presumption of equivalency provided by s. 258(1)( d ).

In this case, the Crown relied exclusively upon the statutory presumption. [ 4 ] As is relatively well-known, that presumption comes into play if, and only if, it is established the first breath sample was provided not later than two hours after the offence. The trial judge found the Crown failed to discharge the burden of establishing that condition precedent and, as a result, he directed verdicts of acquittal on both charges.

The Attorney General complains the trial judge made that finding without taking into consideration a key piece of evidence, a statement by the respondent, which, it is argued, establishes conclusively the first breath sample was provided within the two-hour statutory deadline. [ 5 ] After hearing counsel for the Attorney General, we dismissed the appeal with brief reasons to follow. Here are those reasons.

II. Context [ 6 ] The trial took place on June 18, 2010, and the verdicts were delivered a fortnight later on July 2, 2010, at which time the evidence would have been fresh in the trial judge’s mind. The defence did not adduce any evidence, other than through the cross-examination of Mr. Drost and the arresting officer, RCMP Cst. Malcolm Charles Collicott. Those witnesses provided the following account of the events leading up to the respondent’s indictment for the offences mentioned above. [ 7 ] Mr. Drost arrived at the respondent’s home in Florenceville, N.B., between 9 and 10 p.m. on October 2, 2009.

Over the course of the next few hours, he and the respondent consumed an unspecified amount of alcohol. [ 8 ] At around midnight, Mr. Drost, the respondent, and a mutual friend decided to go to a night club on Route 105, between Florenceville and Perth-Andover. En route, near Beechwood, the respondent lost control of the GMC pick-up truck he was operating and, as a result, it left the roadway and came to rest in a roadside ditch.

At some unspecified point, the vehicle’s OnStar system reported the accident to RCMP Telecoms. [ 9 ] At 12:59 a.m. on October 3, 2009, Telecoms advised the Hartland RCMP detachment of OnStar’s accident occurrence report. Cst. Collicott and a colleague, Cpl. Stephen Dibblee, responded in separate vehicles. [ 10 ] At 1:19 a.m., Cst. Collicott arrived at the accident scene. Cpl. Dibblee and ambulance personnel were already there. The front end of the respondent’s truck “was in the ditch perpendicular to the highway”. Mr. Drost was on a stretcher, being attended to by ambulance personnel.

The respondent and the rear-seat passenger were outside the truck. [ 11 ] Neither Cpl. Dibblee nor the ambulance attendants testified. The precise time of their arrival at the scene is unknown. At trial, the Crown tendered, and the judge received as evidence a document entitled “Investigative Guide and Report on Alcohol Impairment”, which recorded the respondent answered “You were there ten minutes after it happened” when Cst. Collicott asked him at what time the accident occurred. [ 12 ] At 1:35 a.m., Cst.

Collicott required the respondent accompany him for the purpose of providing samples of his breath with a view to determining the concentration of alcohol in his blood. The respondent agreed and Cst. Collicott transported him to the Florenceville RCMP detachment to have the testing performed. [ 13 ] At 2:41 a.m., the respondent provided the first of two samples of his breath. He provided the second at 3:01 a.m.

As mentioned, the analysis of those samples revealed a blood/alcohol concentration that exceeded 80 milligrams of alcohol in 100 milliliters of blood. [ 14 ] The kernel of the trial judge’s formal reasons for denying to the prosecution the benefit of the equivalency presumption under s. 258(1)(

d) is as follows: The first [of the two issues requiring serious consideration] is: was the breath testing done in sufficient time to trigger the statutory presumption of blood alcohol level at the time of driving[?][…] Probably to begin at the end, I should advise you that the Crown has failed to prove beyond a reasonable doubt the time of driving and is therefore deprived of the statutory presumption that would relate the breath readings back to the time of the offence. […] Mr.

Drost testified that he arrived at the home somewhere between nine and ten o’clock and he remained there for a period of a couple of hours. He left the home at around midnight, was his testimony, with the accused operating a motor vehicle and one Chris Martin in the vehicle as well. So we therefore have the accused driving at around midnight. The next important time in the sequence of events is the fact that OnStar reported a motor vehicle accident to the local detachment of the Royal Canadian Mounted Police at 0059 hours.

In other words, we have the accident occurring sometime subsequent to midnight and before 12:59. We have a range of approximately one hour.

With respect to the breathalyser offence, the readings were taken at 2:41 and 3:01, the first one obviously being at 2:41. Section 258(1) of the Code provides, “In any proceedings under subsection 255(1) in respect of an offence committed under 253 or 254or in any proceedings under any of the subsections 255(2) to (3.2) … (

c) where samples of the breath of the accused have been takenpursuant to a demand made under subsection 254(3), if … (ii) each sample was taken as soon as practicable after the time when theoffence was alleged to have been committed,” in this case somewhere between midnight and 12:59, “and, in the case of the first sample,not later than two hours after that time, with an interval of at least fifteen minutes between the times when the samples were taken.” Well, what I’m confronted with here is the first sample was taken at 2:41; therefore, the accused must be found to have been drivingsubsequent to 12:41.

I am not so satisfied, and certainly not beyond a reasonable doubt […]. [15] As can be seen, the trial judge does not advert to the respondent’s statement regarding the time of the accident,which is reproduced in paragraph 11 hereinabove. The Attorney General contends that omission shows the trial judge failed “to directhimself to all the evidence relevant to a material issue at trial” and that he, thereby, committed a reviewable and reversible error of law. III. Analysis and Decision [16] The respondent does not take issue with the Attorney General’s assertion of a right of appeal on the groundmentioned above.

Despite that state of affairs, that right and this Court’s jurisdiction to entertain the present appeal remains very muchopen to question. Section 676(1)(

a) of the Criminal Code provides the Attorney General may appeal against an acquittal on a ground thatinvolves a question of law alone. What constitutes a question of law alone has been the subject of much debate in intermediate courts ofappeal and in the Supreme Court of Canada (see R. v. B. (G.), (SCC), [1990] 2 S.C.R. 57, [1990] S.C.J. No. 57 (QL)and R. v. Morin, (SCC), [1992] 3 S.C.R. 286, [1992] S.C.J. No. 7 (QL).

In Morin, the Court explained that a trial judge’sfailure to direct himself or herself to all of the relevant evidence could only give rise to an appealable question of law where the failurewas a by-product of “legal misdirection”: R. v. B. (G.), supra, proceeded on the basis (conceded by the Crown at p. 72) that failure by the trial judge to direct himself to all theevidence is only a question of law if based on legal misdirection. In this regard, reliance on Harper v. The Queen, (SCC), [1982] 1 S.C.R. 2, must be treated with caution.

In that case the appeal was from conviction and the trial judge treated asirrelevant the evidence of several witnesses without an adverse finding with respect to their credibility. This was held to be an error oflaw by this Court. See Estey J. at p. 14. That decision must be applied in light of the principle that in an appeal from conviction, theCourt of Appeal has the duty of reviewing the evidence in order to determine whether the conviction is unreasonable and cannot besupported by the evidence. In an appeal from acquittal, the Court of Appeal has no such power. See Sunbeam Corporation (Canada) Ltd.v.

The Queen, (SCC), [1969] S.C.R. 221. Failure to appreciate the evidence cannot amount to an error of law unless the failure is based on a misapprehension of some legalprinciple. Any statement to the contrary in R. v. B. (G.) must be considered in light of the assumption made by Wilson J. that thestatement to this effect by Marshall J.A. in R. v. Roman (1987), (NL CA), 38 C.C.C. (3d) 385 (Nfld. C.A.) was correct.That assumption was incorrect by reason of the fact that this Court, differently constituted, had reversed Roman prior to the decision in R.v. B. (G.). See (SCC), [1989] 1 S.C.R. 230. Nevertheless, R. v.

B. (G.) was correctly decided on the basis of amisdirection in law. As pointed out in the concurring reasons of McLachlin J., the trial judge erred in law in respect of the issue of time.This error affected his overall assessment of the evidence. This error was noted as well by Wilson J. and must be taken as the basis forher judgment. [paras. 17-18] [Emphasis added.] [17] In my respectful judgment, the trial judge’s formal reasons for acquittal do not reveal a misapprehension of anylegal principle pertaining to the appreciation of the evidence.

That said, the Attorney General’s appeal was not contested for want ofjurisdiction and that hypothesis stands less than fully explored by the parties. Accordingly, I would prefer to dispose of the appeal on thebasis addressed in the written submissions and in the Attorney General’s oral submission. [18] While it is true the formal reasons for acquittal do not feature a reference to Mr. Corey’s statement, thefollowing exchange during the Crown’s case makes plain the judge was alive to the statement’s true evidential value:

THE COURT: Thank you. Thank you. All right. Okay, Mr. Lavigne, any – some response? MR. LAVIGNE: Yes, your Honor. With respect to the arguments raised by my colleague in respect of the OnStar issue, Your Honour, first of all the, there is evidence from the accused with respect to what time the accident happened and my colleague alluded to it.

And when the Court refers to Exhibit C-2, which is the investigative guide, Your Honour, page 2 of that guide, Your Honour, places the accident, the accused indicates that the accident was ten minutes prior to when the police arrived, He said, “You were there ten minutes after it happened.” THE COURT: Where’s that. MR. LAVIGNE : That’s on Page 2, Your Honour. THE COURT: But you – MR. LAVIGNE: About halfway down the page. There’s a question, “What time did the collision” – THE COURT: “What time did the collision occur?” “You were there ten minutes after it happened.” But that can’t possibly be, as Mr.

Crocco pointed out, because the call came in to the detachment at 12:59 or one minute to one, and we know the police officer didn’t arrive until 1:19 . MR. LAVIGNE: That’s right . It’s also equally consistent though, Your Honour, with the fact that Corporal Dibblee was on scene before Constable Collicott. MR. CROCCO: No. MR. LAVIGNE: So Corporal Dibblee wasn’t here to give – THE COURT: Yes, but we don’t know if he was there – MR. LAVIGNE: No, no, no we don’t – we don’t have evidence from Corporal Dibblee, but the only evidence you have from the Defence is what’s here in the investigative guide.

I guess what I’m saying – THE COURT: I find that quite inconclusive , quite frankly, Mr. Lavigne. I’m not prejudging. I want to look at everything first, but – MR. LAVIGNE: Sure. But the issue, Your Honour, I guess from the Crown’s perspective, is that none of the evidence that you have before you, Your Honour, except that statement from Mr. Drost, places that accident outside the two-hour window mandated to allow the Court (sic) – the Crown to rely upon the presumption in

section 258 for the admission of the certificate. My point is, Your Honour, is that when Mr. Corey was asked what, when, what time did the driving occur, he would place it, I agree, at a time that’s ten minutes inconsistent with Corporal – or excuse me, Constable, Collicott, but even reconciling that, Your Honour, there is nothing in that evidence that places it anywhere near the outside the two-hour window. Even if you do the math, there’s nothing, Your Honour that will place the driving outside the two-hour window. That’s my only – THE COURT: Yes, but there’s no evidence that places it within the two-hour window, is there? MR. LAVIGNE: I’m Sorry, I don’t understand.

THE COURT: But there’s no evidence that places it within the two-hour window, the driving, because we don’t know when the accident occurred . MR. LAVIGNE: Well Mr., again, Your Honour, Mr. Corey does state that the members were on scene ten minutes after the accident happened. MR. CROCCO: No, he doesn’t say that, but you read it, you – THE COURT: I’ve got the point, Mr. Crocco. MR. CROCCO: Yeah. Thank you. THE COURT: Yes, Okay, Mr. Lavigne, go ahead. MR. LAVIGNE: He says that, “You were there ten minutes after it happened.” That’s exactly what Mr. Corey says.

And so I agree that that’s inconsistent with Constable Collicott’s note about when he arrived. Now, we don’t know exactly when Corporal Dibblee arrived . I guess what I’m saying, Your Honour, especially, and I address this also in tandem with respect to the issue of R. v. Deruelle , I agree that Deruelle establishes that the member only be required to formulate his or her grounds within three hours after the suspected driving, Your Honour.

The only point I’d like to respond to in that, Your Honour, is that there’s, with respect to the OnStar time, I wasn’t previously aware of the Ontario cases, I haven’t had the opportunity to review any of them, I’ll certainly, I’ve tried to write down the cites and I’ll try to pull them up, I guess, myself, but I would just, Your Honour, urge the Court to take the time offered by when the call came in and weigh it, Your Honour. Perhaps that’ll go to weight rather than admissibility.

I would suggest, Your Honour, that there’s no, again, no other evidence to the contrary and I would suggest it would be an awfully big stretch for the – for there to be any evidence that the driving occurred outside the [two] hour window, keeping in mind that if Constable Collicott - THE COURT: The onus is on the Crown. Now, come on. The onus is on the Crown to prove beyond a reasonable doubt. That’s what Mr. Crocco’s arguing and I think he’s right on that, quite frankly. MR.

LAVIGNE: Right, Your Honour, but I guess my point is what if – what if any evidence to the contrary is there to that that could reasonably suggest. THE COURT: But no, no that’s my point. There doesn’t have to be evidence to the contrary. There has to be evidence in proof. That’s my point. MR. LAVIGNE: Right. THE COURT: Anyway, look, I’m deliberating in public and I shouldn’t be. [Emphasis added.] [ 19 ] I find myself in full agreement with the view that Mr. Corey’s statement is “inconclusive”.

It is so, and therefore of no probative value per se , because the remainder of the Crown’s evidence demonstrates the statement cannot be taken literally. Indeed, that evidence, viewed in the light most favourable to the Crown, shows Cst. Collicott and Cpl. Dibblee likely arrived at the scene more than “10 minutes after [the accident] happened”. Moreover, the basis upon which the respondent assessed at 10 minutes the delay between the accident and the police arrival at the scene is unknown. [ 20 ] In my respectful judgment, there is no merit to the ground of appeal advanced by the Attorney General,

assuming, without deciding, it gives rise to a right of appeal under s. 676(1) ( a ). IV. Conclusion and Disposition [ 21 ] There is nothing in the record to substantiate the Attorney General’s complaint that the trial judge failed to consider all of the relevant evidence in acquitting the respondent. Accordingly, there is no merit to the ground raised in the notice of appeal.

It is for that reason that I joined in the Court’s dismissal, from the bench, of the Attorney General’s appeal, without calling upon the respondent to make oral submissions in support of his acquittal. ____________________________________ J. ERNEST DRAPEAU, CHIEF JUSTICE OF NEW BRUNSWICK WE CONCUR: _____________________________________ KATHLEEN A. QUIGG, J.A. _____________________________________ BRADLEY V. GREEN, J.A.