R. v. Grant, [1991] 3 S.C.R. 139

Her Majesty The Queen Appellant

v.

Peter Richard Grant Respondent

Indexed as: R. v. Grant

File No.: 21825.

1991: June 10; 1991: October 17.

Present: Lamer C.J. and Sopinka, Gonthier, Cory and Iacobucci JJ.

on appeal from the prince edward island supreme court, appeal division

Constitutional law ‑‑ Charter of Rights ‑‑ Right to counsel ‑‑ Accused refusing to submit to A.L.E.R.T. test ‑‑ Whether s. 10(b) of Canadian Charter of Rights and Freedoms infringed ‑‑ Criminal Code, R.S.C. 1970, c. C‑34, s. 238(2), (5).

Criminal law ‑‑ Demand for breath sample ‑‑ Accused refusing to submit to A.L.E.R.T. test ‑‑ Criminal Code provision authorizing demand that a breath sample be provided "forthwith" ‑‑ Whether demand made fell within ambit of provision ‑‑ Criminal Code, R.S.C. 1970, c. C‑34, s. 238(2), (5).

Criminal law ‑‑ Issue estoppel ‑‑ Crown's appeal challenging only first of two acquittals ‑‑ Second acquittal constituting finding of fact that accused not driving motor vehicle when spotted by police ‑‑ Crown estopped from challenging first acquittal.

A police officer observed a person he believed to be the accused driving a motor vehicle and pursued him, believing him to be driving while disqualified. The officer caught up with the accused, who was standing on the sidewalk some distance from his vehicle, and asked him to enter the police car for questioning. During the conversation in the police car the officer smelt alcohol on the accused's breath and made a demand that he submit to an A.L.E.R.T. test under s. 238(2) of the Criminal Code. When the necessary apparatus was delivered 30 minutes later, the accused refused to take the test and was charged with failing or refusing to comply with the demand contrary to s. 238(5) of the Code and with operating a motor vehicle while disqualified, contrary to s. 242(4)(b). At no point during the time the accused was with the police officer was he informed of his right to counsel under s. 10(b) of the Canadian Charter of Rights and Freedoms.

At trial the accused sought to have statements he had made to the police officer, including his refusal to comply with the demand for a breath sample, excluded under s. 24(2) of the Charter on the basis that his s. 10(b) rights had been infringed. The trial judge excluded the evidence and acquitted the accused on the s. 238(5) charge for lack of evidence. He also acquitted him on the charge of driving while disqualified on the basis that the Crown's remaining evidence of identification was equivocal and left him with a reasonable doubt as to whether the officer had positively identified the accused as the operator of the vehicle. The Crown appealed the acquittal on the first charge. The summary conviction appeal court found that s. 238(2) of the Code implied a reasonable limit on the right to counsel. It set aside the acquittal and ordered a new trial. The Court of Appeal allowed the accused's appeal and restored the acquittal.

Held: The appeal should be dismissed.

The actions of the police officer fell outside the ambit of s. 238(2), since the demand made was not a demand that the accused provide a sample of his breath "forthwith", or immediately, but a demand that he provide a breath sample when the required apparatus arrived, which turned out to be half an hour later. The accused was therefore under no obligation to comply with the officer's demand, and did not commit an offence under s. 238(5) when he failed to do so. The issue of the exclusion of evidence of his failure to comply with the demand which was made thus does not arise.

The accused's right to counsel was indeed infringed in this case. His detention in the police car, both initially when the officer believed he had been driving while disqualified and later when the officer formed the suspicion he had been driving under the influence of alcohol, constitutes "detention" within the meaning of s. 10(b) of the Charter. Since the police action fell outside s. 238(2), the provision is not available to authorize the absence of a s. 10(b) warning upon detention, and hence it cannot constitute a limitation on the s. 10(b) right to counsel "prescribed by law" which would be capable of justification under s. 1 of the Charter.

The Crown, having failed to appeal the s. 242(4) acquittal, is in any event estopped from challenging the s. 238(5) acquittal. A conviction under s. 238(5) would require an anterior finding of fact that the accused was driving the vehicle in question at the time it was first spotted by the police officer, yet the acquittal on the s. 242(4) charge of operating a vehicle while disqualified amounts to a finding of fact on this very issue in favour of the accused. To allow the appeal on the s. 238(5) charge while leaving the acquittal on the s. 242(4) charge undisturbed would result in an impermissible co‑existence of inconsistent verdicts in respect of charges arising out of the same transaction.

Cases Cited

Considered: R. v. Thomsen, 1988 CanLII 73 (SCC), [1988] 1 S.C.R. 640; referred to: R. v. Collins, 1987 CanLII 84 (SCC), [1987] 1 S.C.R. 265; R. v. Oakes, 1986 CanLII 46 (SCC), [1986] 1 S.C.R. 103; R. v. Therens, 1985 CanLII 29 (SCC), [1985] 1 S.C.R. 613; Grdic v. The Queen, 1985 CanLII 34 (SCC), [1985] 1 S.C.R. 810; R. v. Carlson, 1969 CanLII 463 (ON SC), [1970] 3 O.R. 213.

Statutes and Regulations Cited

Canadian Charter of Rights and Freedoms, ss. 1, 10(b), 24(1), (2).

Criminal Code, R.S.C. 1970, c. C‑34, ss. 234.1(1) [ad. 1974‑75‑76, c. 93, s. 15], 238(2), (5) [en. 1985, c. 19, s. 36], 242(4)(b) [en. idem].

Criminal Code, R.S.C., 1985, c. C‑46, ss. 254(2), (5), 259(4)(b).

APPEAL from a judgment of the Prince Edward Island Supreme Court, Appeal Division (1989), 1989 CanLII 186 (PE SCAD), 80 Nfld. & P.E.I.R. 36, 249 A.P.R. 36, 53 C.C.C. (3d) 46, 73 C.R. (3d) 233, 45 C.R.R. 175, 19 M.V.R. (2d) 186, reversing the judgment of the Prince Edward Island Supreme Court, Trial Division (1989), 1989 CanLII 269 (PE SCTD), 79 Nfld. & P.E.I.R. 158, 246 A.P.R. 158, 48 C.C.C. (3d) 573, 15 M.V.R. (2d) 343 allowing the Crown's appeal from the accused's acquittal on a charge of refusing an A.L.E.R.T. demand. Appeal dismissed.

Darrell E. Coombs, for the appellant.

John L. MacDougall, Q.C., for the respondent.

//Lamer C.J.//

The judgment of the Court was delivered by

Lamer C.J. --

The Facts

On December 4, 1987, an R.C.M.P. officer observed a person whom he believed to be the respondent (Mr. Grant) driving a motor vehicle in the city of Charlottetown and pursued him, believing him to be driving while disqualified. The officer followed the car, and caught up with Mr. Grant, who was apparently, at that time, standing on the sidewalk approximately 300 feet from his vehicle. The officer then asked Mr. Grant to enter the police car for questioning. During the conversation in the police car, the officer smelt alcohol on Mr. Grant's breath, which caused him to suspect that he had been operating a motor vehicle with alcohol in his body. The officer thereupon decided to make a demand under s. 238(2) of the Criminal Code, R.S.C. 1970, c. C-34 (now s. 254(2)), that Mr. Grant submit to an A.L.E.R.T. test. However, the officer did not have the necessary apparatus with him at the time so he had another officer deliver it to him. The apparatus did not arrive for another 30 minutes, during which time Mr. Grant remained in the police car.

Mr. Grant did not take the test and the officer charged him with failing or refusing to comply with his demand contrary to s. 238(5) of the Code (now s. 254(5)). Mr. Grant was also charged with operating a motor vehicle while disqualified contrary to s. 242(4)(b) (now s. 259(4)(b)) of the Code. At no point during the 30 minutes during which Mr. Grant was in the company of the police officer was he informed of his right to counsel under s. 10(b) of the Canadian Charter of Rights and Freedoms.

At trial in the Prince Edward Island Provincial Court, counsel for Mr. Grant moved, under s. 24(2) of the Charter, for the exclusion of evidence of statements made by Mr. Grant to the police officer, including his refusal or failure to comply with the demand to provide a breath sample, on the basis that Mr. Grant's s. 10(b) rights had been infringed. Thompson C. Prov. Ct. J. found that there had been an infringement of s. 10(b) and excluded the evidence relating to the statements made by Mr. Grant, pursuant to s. 24(2) of the Charter. He then entered an acquittal on the charge of refusing to comply with a request for a breath sample for lack of evidence. Thompson C. Prov. Ct. J. also entered an acquittal on the charge of driving while disqualified on the basis that, after the exclusion of evidence of statements made by Mr. Grant during the 30 minutes he had spent with the police officer, the Crown's remaining evidence of identification was equivocal, and left him with a reasonable doubt as to whether, when the officer first came in contact with the accused, the officer had positively identified Mr. Grant as the operator of the vehicle.

The Crown appealed the acquittal on the count of refusing to comply with a request to provide a breath sample and the related Charter ruling to the Prince Edward Island Supreme Court, Trial Division (sitting as a summary conviction appeal court). Interestingly, it appears that the Crown did not challenge the acquittal on the second charge of driving while disqualified.

Relying on R. v. Thomsen, 1988 CanLII 73 (SCC), [1988] 1 S.C.R. 640, Matheson J. found that s. 238(2) implied a reasonable limit, under s. 1 of the Charter, on the right to counsel guaranteed by s. 10(b). She therefore set aside the acquittal on the s. 238 charge and ordered a new trial. The accused appealed this ruling to the Prince Edward Island Court of Appeal.

The Prince Edward Island Court of Appeal unanimously held (per Mitchell J.A.) that, because of legislative amendments made to the provision considered in Thomsen, supra, a demand made under s. 238(2) did not qualify as a limitation to the s. 10(b) right that was capable of justification under s. 1 of the Charter. Finding, therefore, that the Provincial Court Judge had not erred in excluding the evidence relating to the refusal, the court set aside the order for a new trial and restored the acquittal.

On June 7, 1990, this Court granted the Crown's application for leave to appeal the judgment of the Prince Edward Island Court of Appeal.

Relevant Statutory Provisions

Criminal Code, R.S.C. 1970, c. C-34

238. ...

(2) Where a peace officer reasonably suspects that a person who is operating a motor vehicle or vessel or operating or assisting in the operation of an aircraft or who has the care or control of a motor vehicle, vessel or aircraft, whether it is in motion or not, has alcohol in his body, he may, by demand made to that person, require him to provide forthwith such a sample of breath as in the opinion of the peace officer is necessary to enable a proper analysis of his breath to be made by means of an approved screening device and, where necessary, to accompany the peace officer for the purpose of enabling such a sample of his breath to be taken.

(5) Every one commits an offence who, without reasonable excuse, fails or refuses to comply with a demand made to him by a peace officer under this section.

Section 234.1(1), the predecessor to s. 238(2), was the provision considered in Thomsen, supra:

234.1 (1) Where a peace officer reasonably suspects that a person who is driving a motor vehicle or who has the care or control of a motor vehicle, whether it is in motion or not, has alcohol in his body, he may, by demand made to that person, require him to provide forthwith such a sample of his breath as in the opinion of the peace officer is necessary to enable a proper analysis of his breath to be made by means of an approved road-side screening device and, where necessary, to accompany the peace officer for the purpose of enabling such a sample of his breath to be taken.

Judgments Below

Provincial Court of Prince Edward Island

Following a voir dire to determine the voluntariness of the statement and consider the arguments for exclusion under s. 24(2) of the Charter, Thompson C. Prov. Ct. J. concluded:

An interesting point in the Thomsen decision is that Mr. Justice LeDain referred to the fact that roadside tests into what was referred to in Section 234.1 as an approved roadside screening device must be conducted at roadside and on that basis the legislation certainly by implication required that the individual be dealt forthwith at the roadside and that the matter of counsel was a Charter right that should be overruled by the Alert legislation, but what must be considered in this case is the fact that this charge was contrary to Section 238(2) of the Criminal Code. Section 238(2) of the Criminal Code deleted the reference to roadside and the approved screening device and I (unclear) as recently as three days ago, I think, that that reference to roadside having been deleted, the accused therefore may be removed to a detachment in order to permit preliminary breath sampling to take place pursuant to Section 238(2) of the Criminal Code....

On the basis of all of that, I am of the view here that the accused's Charter right was breached. He was detained. He was asked to enter the police cruiser and I think clearly that the detention envisioned by the Supreme Court of Canada in the Therens case ... occurred in this particular situation.

The trial judge went on to exclude the statement according to the test in R. v. Collins, 1987 CanLII 84 (SCC), [1987] 1 S.C.R. 265, because it constituted evidence emanating from the accused.

Prince Edward Island Supreme Court, Trial Division ((1989), [1989 CanLII 269 (PE SCTD)](https://www.canlii.org/en/pe/pesctd/doc/1989/1989canlii269/1989canlii269.html), 79 Nfld & P.E.I.R. 158)

After comparing the section in issue in Thomsen, supra, with the section in issue in the case at bar, Matheson J. concluded (at p. 161):

... the only difference is [the] addition of the words "... vessel or operating or assisting in the operation of an aircraft ... vessel or aircraft" and the deletion of the word "roadside".

The effect of these changes is to make s. 234.1(1) applicable to aircraft and vessels. Hence the necessity to drop the word "roadside" when referring to "an approved screening device". However, this in no way limits the use of the A.L.E.R.T. instrument for roadside use.

The purpose of the section is to authorize the use of an approved screening device to obtain a breath sample which must be given "forthwith". In the case of automobile drivers, this normally would be at roadside, as quickly as possible. The Supreme Court of Canada has held in Thomsen, supra, that in these circumstances a detained person does not have the right to retain counsel before complying with the demand. I do not see how dropping the word "roadside" from the section alters this position, in light of the accompanying changes in the wording of the section.

Matheson J. therefore allowed the Crown's appeal and ordered a new trial.

Prince Edward Island Supreme Court, Appeal Division ((1989), [1989 CanLII 186 (PE SCAD)](https://www.canlii.org/en/pe/pescad/doc/1989/1989canlii186/1989canlii186.html), 80 Nfld & P.E.I.R. 36)

Mitchell J.A. (Carruthers C.J. P.E.I. and McMahon J.A. concurring) found that, with the deletion of the word "roadside" from the provision, there was no longer an implicit limit, prescribed by law, to s. 10(b). In his view, the Supreme Court of Canada in Thomsen, supra, relied on the word "roadside" along with the word "forthwith" to find an implicit limitation on the right to counsel prescribed by s. 234.1. However, the changes to the legislation were significant (at p. 40):

Absent the word "roadside" and given the expansion of time for taking breathalyzer tests, it is not easy to find an implicit limit in the case of a demand under s. 254(2) [formerly s. 238(2)].

The Court of Appeal rejected the reasoning of Matheson J. that the word was dropped simply because aircraft and boats had been added to the legislation, as failing to appreciate the "full dimensions" of the word "roadside". Parliament could have added a word to serve a similar function, but did not. The word "forthwith" was not sufficient to imply a limit prescribed by law since that term could mean "within a reasonable time" and not "immediately" (at pp. 40-41):

Absent the word "roadside" there is nothing more in s. 254(2) than in s. 254(3) to imply that the test is to be taken before the subject is given his s. 10 rights.

Even if there were a limit prescribed by law in s. 254(2), Mitchell J.A. pointed out that the limitation would have to pass the s. 1 test in order to be valid. In Thomsen, supra, the Supreme Court of Canada interpreted the word "roadside" not just as a description of the equipment, but also as setting out a requirement regarding when and where it should be used. In the Court of Appeal's view, under s. 254(2), the police were no longer required to administer the test at roadside, but could take the person back to the station. Because the police powers provided for in s. 254(2) went beyond simple roadside screening tests and authorized the police to require an individual to accompany them to the police station, the section failed the proportionality component of the Oakes test (R. v. Oakes, 1986 CanLII 46 (SCC), [1986] 1 S.C.R. 103). Therefore, even if a limit on the right to counsel were implied, there could no longer be any acceptable justification for it (at p. 42):

The s. 1 material before the court in Thomsen established the important role of roadside breath testing in detecting and deterring impaired driving. As a result, the Supreme Court held that the importance of that role justified limitations on the right to counsel at "the roadside testing stage". The powers which the police now have of demand and to require a subject to accompany them under s. 254(2) are much broader than necessary to accomplish the objective justified by the s. 1 material filed with the Supreme Court in Thomsen .... A suspension of civil liberties in the interests of detecting and deterring impaired drivers is only necessary if the A.L.E.R.T. test has to be administered right away and on the spot. That is not the case under s. 254(2).

Therefore, Mitchell J.A. concluded that "a demand under s. 254(2) [did] not qualify as a valid limitation according to s. 1 of the Charter on the appellant's s. 10(b) rights." Therefore, he set aside the order for a new trial and restored the acquittal entered in the Provincial Court.

Analysis

I note at the outset of this analysis that while this case has proceeded in the courts below and was appealed to this Court on the basis of whether this Court's decision in Thomsen, supra, applies to s. 238(2) (the predecessor of which was amended by Parliament subsequent to the decision in Thomsen), I do not find it necessary to resolve this issue in order to dispose of this appeal. I am of the opinion that this appeal must be dismissed and the acquittal restored, and that this result is dictated on a number of alternative grounds.

(1) Nature of the Demand Under s. 238(2)

In Thomsen, this Court held that the predecessor to s. 238(2) (see former s. 234.1(1) set out above) implied a limitation of the right to counsel. This holding was based on the fact that the operational nature and purpose of an A.L.E.R.T. demand (as evidenced, in part, by the use of the terms "forthwith" and "roadside" in the section) meant that there was to be no opportunity for contact with counsel prior to compliance with a demand made under the section. This Court held further, in Thomsen, that the limitation of s. 10(b) rights implied by the Code provision constituted a reasonable limit prescribed by law in the meaning of s. 1 of the Charter. The section 1 analysis in Thomsen focused on the important role played by immediate, roadside breath testing in facilitating the detection of impaired drivers and on the fact that the limitation of s. 10(b) rights was authorized in limited circumstances and only during a short period of detention (as the breath sample was to be given "forthwith").

It was argued in the courts below that because the word "roadside" has been deleted from the provision and the terms "vessel" and "aircraft" have been added to the provision, the breath sample need no longer be taken immediately or "on the spot" and that, therefore, the Charter analysis in Thomsen does not extend to s. 238(2). On this basis, it was argued that s. 238(2) no longer implies a limitation on the right to counsel which is justified under s. 1 of the Charter. While I am inclined to agree with the reasoning of Matheson J. in the Supreme Court of Prince Edward Island that the key word in s. 238(2) is "forthwith" and that the reasons of this Court in Thomsen are therefore directly applicable to the amended provision, I am of the view that it is not necessary to engage in a Charter analysis of s. 238(2) in disposing of this case. Indeed, I do not believe it would be desirable to do so, as no constitutional question was stated which would have attracted the intervention of the Attorney General of Canada and the Attorneys General for the provinces on this issue.

The crucial point is that, unless the demand made by a police officer falls within the ambit of s. 238(2), the person to whom the demand is addressed is under no obligation to comply with the demand, and does not commit the offence under s. 238(5) if he refuses to do so. Nor is the provision available to authorize the absence of a s. 10(b) warning upon detention, and hence it cannot constitute a limitation on the s. 10(b) rights to counsel "prescribed by law" which would be capable of justification under s. 1. In other words, if the actions of the officer fell outside the purview of s. 238(2), those actions must be independently analyzed under s. 10(b) of the Charter without reference to the Code provision. The judgment of this Court in Thomsen could only have application if the police action had fallen within s. 238(2).

In my opinion, the actions of the officer in this case fell outside of the ambit of s. 238(2). The demand made was not the demand authorized by s. 238(2), that Mr. Grant provide a sample of his breath "forthwith." Instead, the demand made was a demand that he provide a breath sample when the required apparatus arrived, which turned out to be half an hour later. It follows that Mr. Grant was under no obligation to comply with the police officer's demand, and did not commit the offence under s. 238(5) when he failed to do so. The context of s. 238(2) indicates no basis for departing from the ordinary, dictionary meaning of the word "forthwith" which suggests that the breath sample is to be provided immediately. Without delving into an analysis of the exact number of minutes which may pass before the demand for a breath sample falls outside of the term "forthwith", I would simply observe that where, as here, the demand is made by a police officer who is without an A.L.E.R.T. unit and the unit does not, in fact, arrive for a half hour, the provisions of s. 238(2) will not be satisfied.

It follows that, as Mr. Grant did not commit the offence of failure to comply with a valid s. 238(2) demand, the issue of the exclusion of evidence of his failure to comply with the demand which was actually made does not arise. Section 24(2) of the Charter consequently does not come into play, as evidence of Mr. Grant's failure to comply with a demand that fell outside s. 238(2) is irrelevant to a prosecution for the 238(5) offence. In my view, this ground by itself dictates that the acquittal be restored.

The question remains, indeed, as to whether the right to counsel was infringed in the case at bar by the actions of the police officer, as this will be crucial in any application for relief under s. 24(1) of the Charter in this type of situation. Mr. Grant was initially pursued, stopped and subsequently questioned in the police vehicle on the basis of the officer's belief that he had been driving while disqualified. Shortly thereafter, the officer formed the suspicion that Mr. Grant had been operating a motor vehicle with alcohol in his body and therefore did not release him, but rather had him wait for an A.L.E.R.T. unit to arrive. In my opinion, both the initial detention in the police car (based on the suspicion of driving while disqualified) and the subsequent detention in the police car (based on the suspicion of driving under the influence of alcohol) satisfy the test set out by this Court in R. v. Therens, 1985 CanLII 29 (SCC), [1985] 1 S.C.R. 613, and Thomsen, supra, to establish a "detention" within the meaning of s. 10(b) of the Charter. This means that Mr. Grant had the constitutional right to retain and instruct counsel without delay and to be informed of that right upon his initial detention. Here, the police officer did not inform Mr. Grant of his right to counsel at either stage of the detention. Mr. Grant was acquitted of the charge of driving while disqualified on other grounds, and therefore he has not challenged the lack of a s. 10(b) warning upon his initial detention. Nevertheless, this initial detention triggered Mr. Grant's s. 10(b) rights and the requirement for a Charter warning did not come to an end when the officer subsequently demanded a breath sample, ostensibly on the basis of s. 238(2). As I have concluded above, the subsequent period of detention in the police car while awaiting the arrival of the A.L.E.R.T. device was not authorized by s. 238(2).

It follows from all of this that, irrespective of the constitutional validity of s. 238(2) of the Code, Mr. Grant's s. 10(b) rights were infringed in the case at bar.

(2) Issue Estoppel

At trial Thompson C. Prov. Ct. J. entered an acquittal on the s. 242(4) (now s. 259(4)) charge on the basis that the Crown's evidence left him with a reasonable doubt as to whether Mr. Grant had in fact been the driver of the car at the time of the incident. He entered an acquittal on the s. 238(5) charge on the basis that the Crown had tendered no admissible evidence at all in respect of a necessary element of the offence.

In her judgment on the Crown's appeal against acquittal, Matheson J. stated the following grounds of appeal (at p. 159):

1. [Thompson C. Prov. Ct. J.] held that the respondent's right guaranteed by section 10(b) of the Charter of Rights had been violated;

2. he held that the appellant had failed to establish that such violation of the respondent's right was demonstrably justifiable in a free and democratic society;

3. he excluded the words of refusal because to receive them into evidence would result in the administration of justice being brought into disrepute; and

4. he dismissed the charge sworn to on the 5th day of January, 1988, alleging an offence contrary to section 238(5) and section 239(1) of the Criminal Code of Canada.

What is noteworthy about the Crown's appeal is that only the s. 238(5) acquittal was challenged. The natural implication of this is that the s. 242(4) acquittal remained unchallenged and was allowed to stand. The section 242(4) acquittal, however, was based upon the trial judge's reasonable doubt on the evidence that Mr. Grant was the driver of the vehicle when it was first spotted by the police officer.

In my view, it is obvious that a conviction under s. 238(5) would require an anterior finding of fact that the accused, and not some other person, was driving the vehicle in question at the time it was first spotted by the police officer. However, the acquittal on the s. 242(4) charge of operating a vehicle while disqualified amounts to a finding of fact on this very issue in favour of the accused. To allow the appeal on the s. 238(5) (failure to comply) charge while leaving the acquittal on the s. 242(4) (driving while disqualified) charge undisturbed would result in an impermissible co-existence of inconsistent verdicts in respect of charges arising out of the same transaction.

Another way of putting the point would be to say that, having failed to appeal the s. 242(4) acquittal, the Crown was, and is, estopped from challenging the s. 238(5) acquittal, as a conviction on the latter charge could only be obtained by undermining a determination already made in favour of the accused on the former. It is a well-established principle in our criminal law that an acquittal is equivalent to a finding of innocence, and that "any issue, the resolution of which had to be in favour of the accused as a prerequisite to the acquittal, is irrevocably deemed to have been found conclusively in favour of the accused": Grdic v. The Queen, 1985 CanLII 34 (SCC), [1985] 1 S.C.R. 810, at p. 825; see also R. v. Carlson, 1969 CanLII 463 (ON SC), [1970] 3 O.R. 213 (H.C.).

In the present case, the acquittal on the s. 242(4) charge must be taken as a conclusive finding in favour of Mr. Grant that he was not driving a motor vehicle at the time the vehicle was spotted by the police officer. This result, which the Crown did not see fit to challenge on appeal, clearly precludes a finding that Mr. Grant was in fact driving the vehicle for the purposes of the s. 238(5) charge. Not having appealed the first acquittal, the Crown was, and is, estopped from appealing the second.

Disposition

In light of my conclusions above, the order of the Court of Appeal setting aside the order for a new trial and restoring the acquittal entered at trial before Thompson C. Prov. Ct. J. is affirmed, albeit for different reasons.

The Crown's appeal is dismissed.

Appeal dismissed.

Solicitor for the appellant: Darrell E. Coombs, Charlottetown.

Solicitors for the respondent: MacLeod, MacDougall, Crane & Parkman, Charlottetown.