R. v. Stratton

R. v. Stratton

Where police relied solely on an ASD 'Fail' but were or ought to have been alerted to recent consumption (empty beer can and admission of drinking within 15 minutes), reliance on the ASD was objectively unreasonable; the resulting Breathalyzer demand and breath evidence were Charter‑infringing and, on balance of Grant factors, must be excluded, requiring acquittal on the breathalyzer charge.

Citation
2023 NSPC 37
Parties
Crown: His Majesty the King; Defence/accused: Brandon Stratton
Court
Nova Scotia Provincial Court
Jurisdiction
Canada
Judgment Date
26 June 2023
Procedural Posture
Criminal (impaired Driving and Breathalyzer) / Charter Admissibility Hearings and Judgment on S.24(2) Exclusion; Verdict on Breathalyzer Charge
Outcome
Breathalyzer evidence excluded under s.24(2) Charter; accused acquitted of failing breathalyzer; impaired driving charge dismissed by Crown
Legal Topics
ASD Reliability, Breathalyzer Admissibility, Section 24(2) Exclusion, Section 320 Criminal Code Breath Demand, Section 10 Right to Counsel
Source Language
English
Criminal Law Constitutional/charter Law Search and Seizure Evidence Law ASD Reliability Breathalyzer Admissibility Section 24(2) Exclusion Section 320 Criminal Code Breath Demand +1 more

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Parties

His Majesty the King

Crown

Brandon Stratton

Defence/accused

Procedural Posture

Criminal (impaired Driving and Breathalyzer) / Charter Admissibility Hearings and Judgment on S.24(2) Exclusion; Verdict on Breathalyzer Charge

Legal Issues

  1. 1 Are breath samples admissible under s.320.28(1)(a)(i) of the Criminal Code?
  2. 2 Whether an ASD 'Fail' alone provided reasonable grounds for a Breathalyzer demand
  3. 3 Whether police erred by not delaying ASD administration in light of recent consumption/residual mouth alcohol

Ratio Decidendi

Where police relied solely on an ASD 'Fail' but were or ought to have been alerted to recent consumption (empty beer can and admission of drinking within 15 minutes), reliance on the ASD was objectively unreasonable; the resulting Breathalyzer demand and breath evidence were Charter‑infringing and, on balance of Grant factors, must be excluded, requiring acquittal on the breathalyzer charge.

Court Disposition

Breathalyzer evidence excluded under s.24(2) Charter; accused acquitted of failing breathalyzer; impaired driving charge dismissed by Crown

Orders

  • Exclude Breathalyzer/ASD-derived breath results from evidence pursuant to s.24(2) of the Charter
  • Acquit Brandon Stratton of the failing-breathalyzer charge (s.320.14(1)(b) Criminal Code)