R. v. Chaudhery

R. v. Chaudhery

Although the arresting officer held an honest belief the accused was impaired, the objective component of reasonable and probable grounds for the s.254 demand and arrest was not met; therefore Charter ss.8 and 9 were breached. Despite the Charter breaches, the breach was neither egregious nor highly intrusive, the breath evidence was reliable, and admitting the Certificate would not bring the administration of justice into disrepute; accordingly the Certificate of Qualified Technician was admitted.

Citation
2015 NSPC 93
Parties
Crown: Her Majesty the Queen; Defendant: Abid Ali Chaudhery
Court
Nova Scotia Provincial Court
Jurisdiction
Canada
Judgment Date
17 June 2015
Procedural Posture
Criminal Impaired Driving / Charter Voir Dire (pre Trial)
Outcome
Voir dire: Charter ss.8 and 9 breaches found; motion to exclude Certificate dismissed; Certificate of Qualified Technician admitted.
Legal Topics
Impaired Driving, Section 254 Breath Demand, Arrest Under S.495, Charter S.8 Search and Seizure, Charter S.9 Arbitrary Detention/arrest, Charter S.10 Right to Counsel, Section 24 Exclusionary Rule (grant Test), Breath Samples / Certificate of Qualified Technician
Source Language
English
Criminal Law Constitutional Law Evidence Law Impaired Driving Section 254 Breath Demand Arrest Under S.495 Charter S.8 Search and Seizure Charter S.9 Arbitrary Detention/arrest +3 more

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Parties

Her Majesty the Queen

Crown

Abid Ali Chaudhery

Defendant

Procedural Posture

Criminal Impaired Driving / Charter Voir Dire (pre Trial)

Legal Issues

  1. 1 Whether the s.254 breath demand was lawful and complied with statutory wording
  2. 2 Whether the samples were taken as soon as practicable
  3. 3 Whether the officer had reasonable and probable grounds for the s.254 demand

Ratio Decidendi

Although the arresting officer held an honest belief the accused was impaired, the objective component of reasonable and probable grounds for the s.254 demand and arrest was not met; therefore Charter ss.8 and 9 were breached. Despite the Charter breaches, the breach was neither egregious nor highly intrusive, the breath evidence was reliable, and admitting the Certificate would not bring the administration of justice into disrepute; accordingly the Certificate of Qualified Technician was admitted.

Court Disposition

Voir dire: Charter ss.8 and 9 breaches found; motion to exclude Certificate dismissed; Certificate of Qualified Technician admitted.

Orders

  • Found that the taking of breath samples pursuant to the s.254 demand and the arrest violated Charter s.8 and s.9 rights of the accused
  • Motion to exclude the Certificate of Qualified Technician (Exhibit 1) dismissed