R. v. Mullins (M.D.K.), (2015) 367 N.S.R.(2d) 55 (PC)

• Judge: Gabriel, P.C.J.
• Court: Provincial Court of Nova Scotia (Canada)
• Case Date: October 22, 2015
• Jurisdiction: Nova Scotia
• Citations: (2015), 367 N.S.R.(2d) 55 (PC);2015 NSPC 80

R. v. Mullins (M.D.K.) (2015), 367 N.S.R.(2d) 55 (PC);

    1157 A.P.R. 55

MLB headnote and full text

Temp. Cite: [2015] N.S.R.(2d) TBEd. DE.004

Her Majesty the Queen v. Mitchell Daniel Kevin Mullins

(No. 2729085; 2015 NSPC 80)

Indexed As: R. v. Mullins (M.D.K.)

Nova Scotia Provincial Court

Gabriel, P.C.J.

October 22, 2015.

Summary:

The accused was charged with refusing to comply with an approved screening device (ASD) demand. The accused argued that the ASD demand was not made "forthwith" as required by s. 254(2) of the Criminal Code. He argued that since the demand was not properly made, he could not be convicted of refusal, since one could not "refuse" an improper demand. Alternatively, he argued that since his ss. 8, 9 and 10 Charter rights were denied, the evidence of his refusal ought to be excluded under s. 24(2) of the Charter.

The Nova Scotia Provincial Court found that the ASD demand complied with the requirements of s. 254(2). The accused was found guilty.

Criminal Law - Topic 1386.2

Motor vehicles - Impaired driving - Roadside screening test - Time and place for - The accused was charged with refusing to comply with an approved screening device (ASD) demand - The accused argued that the ASD demand was not made "forthwith" as required by s. 254(2) of the Criminal Code, due to the length of time that elapsed between Constable Carter's formulation of "reasonable suspicion" that the accused had alcohol in his body and when the ASD demand was actually put to him - The Nova Scotia Provincial Court held that a proper ASD demand was made - Part of the officer's duty as contemplated by s. 254(2) required that he conduct checks reasonably ancillary to those encompassed in the formulation of the ASD demand - The accused had no license or picture ID, so checks confirming the information which the accused had given the officer as to name and address were important - The remoteness of the setting meant that the reception over the equipment in Constable Carter's vehicle was not up to the task of performing those checks - As such, he was required to route the inquiries through dispatch, which consumed more time than it might have otherwise - An eight minute delay between the formulation of reasonable suspicion by Constable Carter, and the demand being administered, under the particular circumstances, was prompt enough to comply with the requirements of s. 254(2).

Cases Noticed:

R. v. Woods (J.C.), [2005] 2 S.C.R. 205; 336 N.R. 1; 195 Man.R.(2d) 131; 351 W.A.C. 131; 2005 SCC 42, refd to. [para. 23].

R. v. Bond (F.F.) (2006), 244 N.S.R.(2d) 48; 774 A.P.R. 48; 2006 NSPC 17, refd to. [para. 27].

R. v. Billette (E.) (2001), 205 Sask.R. 79; 2001 SKQB 150, refd to. [para. 29].

R. v. Quansah (P.) (2012), 287 O.A.C. 383; 286 C.C.C.(3d) 307; 2012 ONCA 123, refd to. [para. 33].

R. v. Beals (G.A.), [2010] N.S.R.(2d) Uned. 284 (Prov. Ct.), refd to. [para. 36].

R. v. Lombard (R.) (2013), 343 N.S.R.(2d) 20; 1084 A.P.R. 20; 2013 NSPC 133, refd to. [para. 43].

Statutes Noticed:

Criminal Code, R.S.C. 1985, c. C-46, sect. 254(2)(b) [para. 20].

Counsel:

Jillian Fage, for the Crown;

Robert Cragg, for the defence.

This matter was heard on June 4 and 22 and October 22, 2015, in Shubenacadie, N.S., before Gabriel, P.C.J., of the Nova Scotia Provincial Court, who delivered the following oral decision on October 22, 2015.