R. v. McKay (D.E.), (2007) 262 N.S.R.(2d) 216 (PC)

• Judge: Campbell, P.C.J.
• Court: Provincial Court of Nova Scotia (Canada)
• Case Date: October 26, 2007
• Jurisdiction: Nova Scotia
• Citations: (2007), 262 N.S.R.(2d) 216 (PC);2007 NSPC 72

R. v. McKay (D.E.) (2007), 262 N.S.R.(2d) 216 (PC);

    839 A.P.R. 216

MLB headnote and full text

Temp. Cite: [2007] N.S.R.(2d) TBEd. DE.042

Her Majesty the Queen v. David Eugene McKay

(1667367; 1667368; 2007 NSPC 72)

Indexed As: R. v. McKay (D.E.)

Nova Scotia Provincial Court

Campbell, P.C.J.

December 12, 2007.

Summary:

The accused was charged with, inter alia, driving with an excessive blood-alcohol level (Criminal Code, s. 253(b)). At issue was whether the breathalyzer tests were given "as soon as practicable" (s. 254(3)).

The Nova Scotia Provincial Court answered affirmatively and convicted the accused.

Criminal Law - Topic 1374

Motor vehicles - Impaired driving - Breathalyzer or blood sample - Evidence and certificate evidence - The accused's truck smashed into a house - The police arrived at 1:51 a.m. - An officer gave a police warning and caution and made a breathalyzer demand at 2:03 a.m. - A second caution was read at 2:05 a.m. - The accused arrived at the police station in Halifax at 2:23 a.m. - There were no delays in getting from the scene to the station - At 2:30 a.m. a breath technician in Dartmouth was called - At 2:40 a.m. the accused asked to use the washroom and did so - At 2:45 a.m. the breath technician arrived and observed the accused - At 2:52 a.m. the accused was turned over to the breath technician - At 3:05 a.m. the first breath test was performed - The second test was performed at 3:22 a.m. - The accused failed the tests and was charged with driving with an excessive blood-alcohol level (Criminal Code, s. 253(b)) - The Nova Scotia Provincial Court held that the breathalyzer tests were given "as soon as practicable" (s. 254(3)) and convicted the accused - The Crown had accounted for the entire period of time from the demand to the test - There were no unreasonable periods of delay - See paragraphs 18 to 58.

Criminal Law - Topic 1374

Motor vehicles - Impaired driving - Breathalyzer or blood sample - Evidence and certificate evidence - At issue was whether the police had administered breathalyzer tests "as soon as practicable" (Criminal Code, s. 254(3)) - The Nova Scotia Provincial Court stated that the phrase as soon as practicable did not mean as soon as possible - It had the important element of taking into account existing resources and surrounding circumstances - It was defined having regard to the legislation involved, the context of the particular case and reasonable practical considerations - The legislation contemplated a situation where time was important not only in the sense that a person should not be detained for a period that was longer than necessary but because fluctuating alcohol levels in the blood were being measured - The police had to reasonably account for the time between the demand and the completion of the test - Unaccounted for gaps of time or gaps of time for which the explanation itself was not reasonable would result in the finding that the test was not administered as soon as practicable - See paragraphs 23 to 26.

Criminal Law - Topic 1374

Motor vehicles - Impaired driving - Breathalyzer or blood sample - Evidence and certificate evidence - At issue was whether the police had administered breathalyzer tests "as soon as practicable" (Criminal Code, s. 254(3)) - The Nova Scotia Provincial Court stated that it could be reduced to the absurd if the police had to account for each period of seconds or minutes - There should be no unreasonable gap in the narrative - Even a brief period of time for which the police could not provide evidence generally of what was happening would come under scrutiny - The determination of the level of detail required should be reasonable (i.e., take into account both the technical nature of the process and the practicalities associated with it) - The police and the Crown must be held to a high standard, bearing in mind both the need for timeliness in preserving the integrity of the testing process and the rights of the person detained - "As soon as practicable" was not a scientific measurement or theoretical concept - It was a time period that was measured based on the practical common sense consideration of the circumstances of the individual case, having regard for the reasons why time was of the essence - See paragraphs 46 to 51.

Cases Noticed:

R. v. Trempe (1992), 111 N.S.R.(2d) 317; 303 A.P.R. 317 (Co. Ct.), refd to. [para. 28].

R. v. Porter (1981), 35 Nfld. & P.E.I.R. 45; 99 A.P.R. 45; 64 C.C.C.(2d) 283 (Nfld. C.A.), refd to. [para. 29].

R. v. McCoy (1990), 86 Sask.R. 204 (Q.B.), refd to. [para. 30].

R. v. Cassidy (E.J.J.) (2003), 212 N.S.R.(2d) 383; 665 A.P.R. 383 (Prov. Ct.), refd to. [para. 31].

R. v. Cook (J.S.) (1994), 130 N.S.R.(2d) 99; 367 A.P.R. 99 (S.C.), refd to. [para. 32].

R. v. Pauls, [1994] A.J. No. 289 (Prov. Ct.), refd to. [para. 40].

R. v. Bisset, [1993] O.J. No. 2319 (C.J. Prov. Div.), refd to. [para. 41].

Statutes Noticed:

Criminal Code, R.S.C. 1985, c. C-46, sect. 254(3) [para. 19].

Counsel:

Christopher Morris, for the Crown;

Robert Cragg, for the defence.

This matter was heard on October 26, 2007, by Campbell, P.C.J., of the Nova Scotia Provincial Court, who delivered the following oral decision on December 12, 2007.