R. v. Bishop

R. v. Bishop

The court held that the defendant's verbal admission that he had "one beer" was conscriptive and obtained in breach of s.7; because that statement was used to initiate the sequence of investigative steps leading to the ASD demand and the charge for refusal, the ASD demand and evidence of refusal were tainted and...

Source-derived case information.

Citation
2002 NSPC 2
Parties
Prosecution: Her Majesty the Queen; Defendant: Donald Ernest Bishop
Court
Nova Scotia Provincial Court
Jurisdiction
Canada
Judgment Date
15 February 2002
Procedural Posture
Criminal Impaired Driving / Refusal to Comply With ASD Demand / Charter Application Exclusion of Evidence Under S.24(1) (pre Trial)
Outcome
Admission of the defendant's verbal admission and all subsequent evidence derived from it (ASD demand and refusal) excluded under s.24(1) Charter; prosecution's case based on that evidence vitiated.
Legal Topics
Right to Silence (s.7 Charter), Right to Counsel (s.10(b) Charter), Unreasonable Search and Seizure (s.8 Charter), Arbitrary Detention (s.9 Charter), Exclusion of Evidence (s.24(1) Charter), Roadside Detention and Police Powers, Approved Screening Device (asd) / Breath Testing
Source Language
english
Criminal Law Constitutional Law (charter) Administrative / Regulatory Law (motor Vehicle) Right to Silence (s.7 Charter) Right to Counsel (s.10(b) Charter) Unreasonable Search and Seizure (s.8 Charter) Arbitrary Detention (s.9 Charter) Exclusion of Evidence (s.24(1) Charter) +2 more

Source-derived case record

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Parties

Her Majesty the Queen

Prosecution

Donald Ernest Bishop

Defendant

Procedural Posture

Criminal Impaired Driving / Refusal to Comply With ASD Demand / Charter Application Exclusion of Evidence Under S.24(1) (pre Trial)

Legal Issues

  1. 1 May police question a detained driver about prior alcohol consumption and use the answer to justify an ASD demand?
  2. 2 May police request a driver to blow toward an officer's face and use the smell to justify an ASD demand?
  3. 3 Does use of a driver's verbal admission to formulate a test demand infringe s.7 and require exclusion of derivative evidence?

Ratio Decidendi

The court held that the defendant's verbal admission that he had "one beer" was conscriptive and obtained in breach of s.7; because that statement was used to initiate the sequence of investigative steps leading to the ASD demand and the charge for refusal, the ASD demand and evidence of refusal were tainted and must be excluded under s.24(1). Conversely, the court held that a request to blow toward an officer's face and use of the resulting odour is a permissible, safety‑related investigatory step not breaching s.8 or s.10(b), but because here the officer's request followed the conscriptive admission the entire chain of evidence was vitiated.

Court Disposition

Admission of the defendant's verbal admission and all subsequent evidence derived from it (ASD demand and refusal) excluded under s.24(1) Charter; prosecution's case based on that evidence vitiated.

Orders

  • The statement that the defendant had "one beer" and any evidence (including the ASD demand and evidence of failure/refusal) derived from that admission are excluded under s.24(1) of the Charter.
  • Evidence of breath odour obtained by a request to blow toward the officer's face is not per se Charter‑breaching, but in this case is excluded as fruit of the s.7 breach.