R. v. MacLennan (J.W.), (1994) 133 N.S.R.(2d) 196 (SC)

• Judge: R. MacDonald, J.
• Court: Supreme Court of Nova Scotia (Canada)
• Case Date: June 07, 1994
• Jurisdiction: Nova Scotia
• Citations: (1994), 133 N.S.R.(2d) 196 (SC)

R. v. MacLennan (J.W.) (1994), 133 N.S.R.(2d) 196 (SC);

  380 A.P.R. 196

MLB headnote and full text

Her Majesty The Queen (respondent) v. John Wayne MacLennan (appellant)

(S.K. No. 4306)

Indexed As: R. v. MacLennan (J.W.)

Nova Scotia Supreme Court

R. MacDonald, J.

June 22, 1994.

Summary:

The accused was charged with driving with an excessive blood-alcohol level contrary to s. 253(b) of the Criminal Code.

The Nova Scotia Provincial Court, in a decision not reported in this series of reports, convicted the accused. The accused appealed his conviction.

The Nova Scotia Supreme Court allowed the appeal and quashed the conviction.

Civil Rights - Topic 1404.1

Security of the person - Law enforcement - Breath samples - A police officer stopped the accused's car after she noted that a passenger "appeared" to be putting on his seat belt - The officer gave a breathalyzer demand after noting a strong odour of alcohol - The accused's speech and movements were slow, he fumbled with his documents and he swayed when he walked - The Nova Scotia Supreme Court held that the officer stopped the accused without a good reason and vio­lated the accused's right against arbitrary detention under s. 9 of the Charter and the following "search" violated the accused's s. 8 Charter rights - The court excluded the evidence on which the reasonable and probable grounds for the demand were based and the breathalyzer results.

Civil Rights - Topic 3603

Detention and imprisonment - Detention - What constitutes arbitrary detention - [See Civil Rights - Topic 1404.1 ].

Civil Rights - Topic 8368

Canadian Charter of Rights and Freedoms - Denial of rights - Remedies - Exclusion of evidence - [See Civil Rights - Topic 1404.1 ].

Criminal Law - Topic 1372

Motor vehicles - Impaired driving - Breathalyzer demand - Reasonable grounds - [See Civil Rights - Topic 1404.1 ].

Cases Noticed:

R. v. Baroni (1989), 91 N.S.R.(2d) 295; 233 A.P.R. 295 (C.A.), consd. [para. 5].

R. v. Saunders (1988), 27 O.A.C. 184; 41 C.C.C.(3d) 532 (C.A.), refd to. [para. 5].

Baron et al. v. Minister of National Reve­nue et al., [1993] 1 S.C.R. 416; 146 N.R. 270; 78 C.C.C.(3d) 510, refd to. [para. 7].

R. v. Collins, [1987] 1 S.C.R. 265; 74 N.R. 276; 56 C.R.(3d) 193; [1987] 3 W.W.R. 699; 38 D.L.R.(4th) 508; 33 C.C.C.(3d) 1; 28 C.R.R. 122; 13 B.C.L.R.(2d) 1, refd to. [para. 16].

R. v. Rilling, [1976] 2 S.C.R. 183; 5 N.R. 237; 24 C.C.C.(2d) 81, consd. [para. 20].

Statutes Noticed:

Canadian Charter of Rights and Freedoms, 1982, sect. 8 [para. 11]; sect. 9 [para. 12]; sect. 24 [para. 21].

Criminal Code, R.S.C. 1985, c. C-46, sect. 253(a), sect. 253(b) [para. 1].

Counsel:

Curtis C. Palmer, for the appellant;

Darrell I. Carmichael, for the Crown.

This appeal was heard by written sub­missions on June 7, 1994, in Kentville, Nova Scotia, by R. MacDonald, J., of the Nova Scotia Supreme Court, who delivered the following decision on June 22, 1994.