R.v. MacDermott

R.v. MacDermott

The court found no Charter breaches of ss.7, 8 or 10(a); the ASD roadside demand and subsequent Approved Instrument demand were lawful and supported by odour, an admission and an ASD 'fail'; however the Crown failed to prove beyond a reasonable doubt that the first breath sample was taken within two hours of when the accused last operated the vehicle (a prerequisite of s.258(1)(c)), and in the absence of expert extrapolation evidence the Crown did not prove the over-80 offence beyond a reasonable doubt, so the accused was acquitted.

Citation
2020 NSPC 33
Parties
Crown: Her Majesty the Queen; Accused: Kevin MacDermott
Court
Nova Scotia Provincial Court
Jurisdiction
Canada
Judgment Date
30 July 2020
Procedural Posture
Criminal Impaired Driving / Trial — Blended Charter Voir Dire and Trial Proper; Decision Reserved and Rendered
Outcome
Accused acquitted; found not guilty of s.253(1)(a) by directed verdict and not guilty of s.253(1)(b) (over 80) after trial
Legal Topics
Impaired Driving, Presumption of Identity (s.258(1)(c)), Breathalyzer/asd Admissibility, Reasonable Suspicion and Reasonable Grounds, Right to Counsel and Detention (ss.10, 7), Exclusion of Evidence (s.24(2))
Source Language
English
Criminal Law Constitutional (charter) Law Evidence Law Impaired Driving Presumption of Identity (s.258(1)(c)) Breathalyzer/asd Admissibility Reasonable Suspicion and Reasonable Grounds Right to Counsel and Detention (ss.10,7) +1 more

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Parties

Her Majesty the Queen

Crown

Kevin MacDermott

Accused

Procedural Posture

Criminal Impaired Driving / Trial — Blended Charter Voir Dire and Trial Proper; Decision Reserved and Rendered

Legal Issues

  1. 1 Whether the accused's Charter rights (ss.7,8,10(a)) were breached during roadside and post-arrest procedures
  2. 2 Whether the ASD roadside demand and subsequent Approved Instrument breath demand were authorized by law and supported by reasonable suspicion/grounds
  3. 3 Whether the Crown met the statutory prerequisites to invoke the presumption of identity in s.258(1)(c) (first sample within two hours)

Ratio Decidendi

The court found no Charter breaches of ss.7, 8 or 10(a); the ASD roadside demand and subsequent Approved Instrument demand were lawful and supported by odour, an admission and an ASD 'fail'; however the Crown failed to prove beyond a reasonable doubt that the first breath sample was taken within two hours of when the accused last operated the vehicle (a prerequisite of s.258(1)(c)), and in the absence of expert extrapolation evidence the Crown did not prove the over-80 offence beyond a reasonable doubt, so the accused was acquitted.

Court Disposition

Accused acquitted; found not guilty of s.253(1)(a) by directed verdict and not guilty of s.253(1)(b) (over 80) after trial

Orders

  • Directed verdict of not guilty on charge under s.253(1)(a) (declared February 7, 2020)
  • Acquittal — not guilty on charge under s.253(1)(b) (decision rendered July 30, 2020)