R. v. Harding

R. v. Harding Court Court of Appeal Date 1998-04-03 Citation 1998 NSCA 97 Docket CAC 144437 Judge/Registrar/Adjudicator Flinn, Edward J. (Honourable Justice); Hart, Gordon L.S. (Honourable Justice); Clarke, Lorne O. (Honourable Chief Justice) Document Type Decision Relations Library Sheet - R. v. Harding - 1998 NSCA 97 - 1997-04-03 - Library Sheet Decision Content Date: 19980403 Docket: C.A.C. 144437 NOVA SCOTIA COURT OF APPEAL Cite as: R. v. Harding, 1998 NSCA 97 Clarke, C.J.N.S.; Hart and Flinn, JJ.A. BETWEEN: JAMES FOSTER HARDING ) Lonny Queripel ) for the Appellant Appellant ) - and - ) ) James A. Gumpert, Q.C. ) for the Respondent HER MAJESTY THE QUEEN ) ) Respondent ) Appeal Heard: ) April 3, 1998 ) ) ) Judgment Delivered: ) April 3, 1998 ) ) ) ) ) ) ) ) THE COURT: Appeal dismissed from conviction of control of a motor vehicle while ability impaired by alcohol or a drug contrary to s. 253(a) of the Criminal Code, per oral reasons for judgment of Clarke, C.J.N.S.; Hart and Flinn, JJ.A. concurring. C.A.C. 144437 NOVA SCOTIA COURT OF APPEAL BETWEEN: JAMES FOSTER HARDING ) ) Appellant ) - and - ) REASONS FOR ) JUDGMENT BY: HER MAJESTY THE QUEEN ) ) CLARKE, C.J.N.S. ) (Orally) Respondent ) ) ) ) ) ) ) The reasons for judgment of the Court were delivered orally by: CLARKE, C.J.N.S.: The appellant, Mr. Harding, applies for leave to appeal and if granted, appeals from his conviction that on November 30, 1996, he unlawfully had the control of a motor vehicle while his ability to operate a motor vehicle was impaired by alcohol or a drug contrary to s. 253(a) of the Criminal Code. The evidence of Constables Rudback and Darrach was that about 3:00 o'clock in the morning, they observed Mr. Harding driving a motor vehicle the wrong way on a one way street in Halifax. Upon stopping the vehicle they observed Mr. Harding had blood shot eyes, emitted a strong smell of alcohol, was sleepy in his demeanor and was unsteady on his feet. As a result of these observations, the Constables concluded Mr. Harding was driving a motor vehicle under the influence of alcohol. This was the evidence of the two Crown witnesses at trial. No evidence was offered by the defence. Judge Randall of the Provincial Court found Mr. Harding guilty of the offence beyond a reasonable doubt. He said he was satisfied the circumstances fell within the Supreme Court of Canada judgment in R. v. Stellato (1994), 90 C.C.C. (3d) 160. In dismissing the appeal, the Supreme Court of Canada affirmed the decision of the Ontario Court of Appeal reported in (1993), 78 C.C.C. (3d) 380 (Ont. C.A.). The head note at page 380 captures the essence of the decision of the Ontario Court of Appeal. - 2 - The offence of impaired operation or impaired care and control of a motor vehicle contrary to s. 253(a) of the Criminal Code is made out by proof of any degree of impairment ranging from slight to great. There is no requirement of proof of a marked departure from normal behaviour. In any case impairment is an issue of fact which the trial judge must decide on the evidence. The trial judge must be satisfied as to the accused's guilt beyond a reasonable doubt and thus, before convicting, the trial judge must be satisfied that the accused's ability to operate the motor vehicle was impaired by alcohol or a drug. If the evidence of impairment is so frail as to leave the trial judge with a reasonable doubt then the accused must be acquitted. The appellant states the issue on appeal is, ... whether the learned trial judge erred in law by considering only whether it had been proven beyond a reasonable doubt that the Appellant was impaired by alcohol at the relevant time, and not whether the Appellant's ability to operate a motor vehicle was impaired by alcohol, as the charge against the Appellant required. We are satisfied after reading and considering the record and the submissions of both counsel that while the decision of Judge Randall is brief, it is apparent from what he said that he understood the ingredients of the offence with which Mr. Harding was charged; namely, his ability to operate a motor vehicle while impaired by alcohol as distinguished from the circumstances in R. v. Andrews (1996), 104 C.C.C. (3d) 392 (Alta. C.A.) before the Alberta Court of Appeal. Thereafter, Judge - 3 - Randall briefly summarized the evidence, made reference to Stellato and found Mr. Harding guilty beyond a reasonable doubt. In R. v. Burns (1994), 89 C.C.C. (3d) 193 (S.C.C.), McLachlin, J. wrote at p. 200: ... Trial judges are presumed to know the law with which they work day in and day out. If they state their conclusions in brief compass, and these conclusions are supported by the evidence, the verdict should not be overturned merely because they fail to discuss collateral aspects of the case. In our opinion the conclusion reached by Judge Randall is supported by the evidence. Accordingly, while leave to appeal is granted, the appeal is dismissed. Clarke, C.J.N.S. Concurred in: Hart, J.A. Flinn, J.A.