R. v. Tyler MacKintosh

R. v. Tyler MacKintosh

The information's failure to specify which demand was relied on did not invalidate the count because the correct charging section s.320.15 was used, disclosure and trial evidence made clear the demand was an ASD under s.320.27, the Crown was granted leave to amend to add s.320.27, and mens rea for s.320.15 is established by proof the accused knew a demand was made and failed to comply; the Crown proved those elements beyond a reasonable doubt and the accused failed to establish a reasonable excuse.

Citation
2023 NSPC 60
Parties
Crown: His Majesty the King; Accused: Tyler MacKintosh
Court
Nova Scotia Provincial Court
Jurisdiction
Canada
Judgment Date
18 December 2023
Procedural Posture
Criminal / Trial Decision
Outcome
Accused convicted of failing to comply with a demand contrary to s.320.15(1) (ASD demand pursuant to s.320.27); no conviction entered on the s.320.14(1)(a) impaired operation allegation.
Legal Topics
Refusal to Provide Breath Sample, Approved Screening Device (asd) Demands, Mens Rea for Statutory Refusal Offences, Charge Specification and Particulars
Source Language
English
Criminal Law Road Traffic Law Evidence Refusal to Provide Breath Sample Approved Screening Device (asd) Demands Mens Rea for Statutory Refusal Offences Charge Specification and Particulars

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Parties

His Majesty the King

Crown

Tyler MacKintosh

Accused

Procedural Posture

Criminal / Trial Decision

Legal Issues

  1. 1 Whether failure to specify in the information which statutory demand (s.320.27 ASD or s.320.28 breathalyzer) was in issue rendered the count invalid or prejudicial
  2. 2 Whether proof that the accused received the ASD demand and failed to comply is sufficient to establish mens rea under s.320.15(1), or whether the Crown must prove an intention to refuse

Ratio Decidendi

The information's failure to specify which demand was relied on did not invalidate the count because the correct charging section s.320.15 was used, disclosure and trial evidence made clear the demand was an ASD under s.320.27, the Crown was granted leave to amend to add s.320.27, and mens rea for s.320.15 is established by proof the accused knew a demand was made and failed to comply; the Crown proved those elements beyond a reasonable doubt and the accused failed to establish a reasonable excuse.

Court Disposition

Accused convicted of failing to comply with a demand contrary to s.320.15(1) (ASD demand pursuant to s.320.27); no conviction entered on the s.320.14(1)(a) impaired operation allegation.

Orders

  • Crown granted leave to amend the Information to add the words "pursuant to s. 320.27 of the Code" to the refusal count
  • Accused convicted on the s.320.15(1) count (refusal to provide breath sample to ASD)