R. v. McGean

R. v. McGean

The officer's question eliciting the accused's admission about number of drinks was conscriptive and violated the accused's right against self-incrimination and must be excluded; the police's s.10(b) warning was constitutionally deficient for the first breath sample but the accused subsequently consulted duty counsel before the second sample, so the second breath sample is admissible; because s.253(b) requires two valid breath readings and s.253(a) was stayed, the accused must be discharged.

Citation
2004 NSPC 65
Parties
Crown: Her Majesty The Queen; Accused: Derek McGean
Court
Nova Scotia Provincial Court
Jurisdiction
Canada
Judgment Date
26 October 2004
Procedural Posture
Criminal Impaired Driving / Voir Dire / Ruling
Outcome
Accused discharged; found not guilty of the charge contrary to s.253(b); s.253(a) stayed pursuant to s.579.
Legal Topics
Right to Counsel S.10(b), Right Against Self Incrimination S.7, Exclusion of Evidence, Breathalyzer / Impaired Driving, Voluntariness
Source Language
English
Constitutional Law Criminal Law Evidence Right to Counsel S.10(b) Right Against Self Incrimination S.7 Exclusion of Evidence Breathalyzer / Impaired Driving Voluntariness

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Parties

Her Majesty The Queen

Crown

Derek McGean

Accused

Procedural Posture

Criminal Impaired Driving / Voir Dire / Ruling

Legal Issues

  1. 1 Whether the officer's questioning about alcohol consumption after detention but before charter warnings violated the accused's right against self-incrimination
  2. 2 Whether the police advisement of rights satisfied s.10(b) given absence of explicit duty counsel information and whether subsequent consultation cured any defect
  3. 3 Whether evidence obtained (statements and breath samples) must be excluded and effect on ability to prosecute under s.253(a) and s.253(b)

Ratio Decidendi

The officer's question eliciting the accused's admission about number of drinks was conscriptive and violated the accused's right against self-incrimination and must be excluded; the police's s.10(b) warning was constitutionally deficient for the first breath sample but the accused subsequently consulted duty counsel before the second sample, so the second breath sample is admissible; because s.253(b) requires two valid breath readings and s.253(a) was stayed, the accused must be discharged.

Court Disposition

Accused discharged; found not guilty of the charge contrary to s.253(b); s.253(a) stayed pursuant to s.579.

Orders

  • Statement by accused that he had four to five drinks excluded
  • Results of the first breath sample excluded