R. v. Wheadon

R. v. Wheadon

Although the accused's evidence gave an air of reality to necessity, the Crown proved beyond a reasonable doubt that the accused acted voluntarily and that reasonable legal alternatives existed (and the peril was not shown to be imminent for the entire period of care or control); proportionality favoured public safety. Necessity therefore failed and the accused was convicted of s.253(b) (care or control over 80 mg/100mL) and a conditional stay entered on the s.253(a) count under Kineapple.

Citation
2016 NSPC 82
Parties
Crown: Her Majesty the Queen; Accused: Rene Lynne Wheadon
Court
Nova Scotia Provincial Court
Jurisdiction
Canada
Judgment Date
12 April 2016
Procedural Posture
Criminal Impaired Driving / Decision (trial)
Outcome
Guilty on count 1 (s.253(b) Criminal Code); conditional stay of proceedings on count 2 (s.253(a))
Legal Topics
Necessity Defence, Impaired Driving, Care or Control, Breath Analysis Admissibility, Proportionality, Reasonable Legal Alternative, Kineapple/double Conviction Rule
Source Language
English
Criminal Law Road Traffic Law Evidence Law Necessity Defence Impaired Driving Care or Control Breath Analysis Admissibility Proportionality +2 more

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Parties

Her Majesty the Queen

Crown

Rene Lynne Wheadon

Accused

Procedural Posture

Criminal Impaired Driving / Decision (trial)

Legal Issues

  1. 1 Whether the defence of necessity applied to excuse driving while over the legal alcohol limit or while impaired
  2. 2 Whether the Crown disproved necessity beyond a reasonable doubt by showing voluntariness, existence of reasonable legal alternatives, lack of imminent peril, and disproportionality
  3. 3 Admissibility and evidentiary weight of breath analysis (Exhibit 1)

Ratio Decidendi

Although the accused's evidence gave an air of reality to necessity, the Crown proved beyond a reasonable doubt that the accused acted voluntarily and that reasonable legal alternatives existed (and the peril was not shown to be imminent for the entire period of care or control); proportionality favoured public safety. Necessity therefore failed and the accused was convicted of s.253(b) (care or control over 80 mg/100mL) and a conditional stay entered on the s.253(a) count under Kineapple.

Court Disposition

Guilty on count 1 (s.253(b) Criminal Code); conditional stay of proceedings on count 2 (s.253(a))

Orders

  • Convicted of having care or control of a motor vehicle with blood alcohol concentration over 80 mg per 100 mL (s.253(b) Criminal Code)
  • Conditional stay of proceedings entered on the impaired driving count (s.253(a))