R. v. MacIsaac

R. v. MacIsaac

The court found the s.254(2) demand was not made 'forthwith' because the officer failed to consider the realistic opportunity for the accused to consult counsel given the immediate proximity of the police station; the SLII roadside screening results were conscriptive and obtained through a s.10(b) violation and thus excluded under s.24(2); exclusion of the SLII evidence removed any basis for a s.254(3) demand and the breathalyzer evidence, leaving insufficient admissible evidence to convict under s.253(b) or to prove impairment under s.253(a); accordingly the accused was acquitted on both charges.

Citation
2008 NSPC 71
Parties
Crown: Her Majesty the Queen; Defendant: Scott Trevor MacIsaac
Court
Nova Scotia Provincial Court
Jurisdiction
Canada
Judgment Date
3 December 2008
Procedural Posture
Criminal / Trial Judgment on Charter Application and Verdict
Outcome
Acquitted on both s.253(a) and s.253(b); SLII and breathalyzer evidence excluded under s.24(2) of the Charter
Legal Topics
Right to Counsel, Section 254 Demand, Admissibility of Breath Tests, Section 24(2) Exclusion, Operation While Impaired (s.253(a)), Over 80 Mg Offence (s.253(b))
Source Language
English
Criminal Law Charter Rights Evidence Law Impaired Driving Right to Counsel Section 254 Demand Admissibility of Breath Tests Section 24(2) Exclusion +2 more

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Parties

Her Majesty the Queen

Crown

Scott Trevor MacIsaac

Defendant

Procedural Posture

Criminal / Trial Judgment on Charter Application and Verdict

Legal Issues

  1. 1 Whether the s.254(2) roadside screening demand was made 'forthwith' or delayed such that s.10(b) right to counsel was breached
  2. 2 Whether the SLII roadside screening results are conscriptive evidence and must be excluded under s.24(2) of the Charter
  3. 3 Whether, absent the SLII and breathalyzer evidence, the Crown proved impairment under s.253(a) beyond a reasonable doubt

Ratio Decidendi

The court found the s.254(2) demand was not made 'forthwith' because the officer failed to consider the realistic opportunity for the accused to consult counsel given the immediate proximity of the police station; the SLII roadside screening results were conscriptive and obtained through a s.10(b) violation and thus excluded under s.24(2); exclusion of the SLII evidence removed any basis for a s.254(3) demand and the breathalyzer evidence, leaving insufficient admissible evidence to convict under s.253(b) or to prove impairment under s.253(a); accordingly the accused was acquitted on both charges.

Court Disposition

Acquitted on both s.253(a) and s.253(b); SLII and breathalyzer evidence excluded under s.24(2) of the Charter

Orders

  • Results of demands made pursuant to s.254(2) and s.254(3) excluded from the trial proper
  • Acquittal entered on the charge contrary to s.253(b) of the Criminal Code