R. v. McDonald

R. v. McDonald

The screening device demand was invalid because when it was given the accused was not operating nor in care or control of the vehicle and the demand and samples were not provided forthwith; the detention was therefore arbitrary contrary to s.9 and the screening device and subsequent breathalyzer evidence must be excluded under s.24(2), resulting in acquittal on s.253(a) and (b).

Citation
2005 NSPC 48
Parties
Prosecution: Regina; Defendant: Christopher Paul McDonald
Court
Nova Scotia Provincial Court
Jurisdiction
Canada
Judgment Date
11 January 2005
Procedural Posture
Criminal (impaired Driving) / Provincial Court Decision (acquittal)
Outcome
Acquitted on both counts (s.253(a) and s.253(b))
Legal Topics
Impaired Driving, Screening Device Demand (s.254), Detention and Arbitrary Detention (s.9), Right to Counsel (s.10(b)), Exclusion of Evidence (s.24(2)), Care or Control of a Vehicle, Forthwith Requirement
Source Language
English
Criminal Law Charter Rights Road Traffic Law Evidence Impaired Driving Screening Device Demand (s.254) Detention and Arbitrary Detention (s.9) Right to Counsel (s.10(b)) +3 more

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Parties

Regina

Prosecution

Christopher Paul McDonald

Defendant

Procedural Posture

Criminal (impaired Driving) / Provincial Court Decision (acquittal)

Legal Issues

  1. 1 Whether the officer had authority to give a screening device demand because the accused was operating or had care or control when the demand was made
  2. 2 Whether the screening device demand and provision of samples were made 'forthwith'
  3. 3 Whether the accused was arbitrarily detained in breach of s.9 and whether s.10(b) rights were engaged

Ratio Decidendi

The screening device demand was invalid because when it was given the accused was not operating nor in care or control of the vehicle and the demand and samples were not provided forthwith; the detention was therefore arbitrary contrary to s.9 and the screening device and subsequent breathalyzer evidence must be excluded under s.24(2), resulting in acquittal on s.253(a) and (b).

Court Disposition

Acquitted on both counts (s.253(a) and s.253(b))

Orders

  • Screening device results excluded pursuant to s.24(2) of the Charter
  • Breathalyzer results excluded pursuant to s.24(2) of the Charter