R. v. Simmons (R.C.), (2007) 253 N.S.R.(2d) 43 (SC)

• Judge: Stewart, J.
• Court: Supreme Court of Nova Scotia (Canada)
• Case Date: January 11, 2007
• Jurisdiction: Nova Scotia
• Citations: (2007), 253 N.S.R.(2d) 43 (SC);2007 NSSC 87

R. v. Simmons (R.C.) (2007), 253 N.S.R.(2d) 43 (SC);

    807 A.P.R. 43

MLB headnote and full text

Temp. Cite: [2007] N.S.R.(2d) TBEd. AP.001

Ross Clayton Simmons (appellant) v. The Queen (respondent)

(CR. SBW. 269281; 2007 NSSC 87)

Indexed As: R. v. Simmons (R.C.)

Nova Scotia Supreme Court

Stewart, J.

March 21, 2007.

Summary:

An accused was charged with refusing to provide a breath sample to an approved screening device.

The Nova Scotia Provincial Court, in a decision reported at 249 N.S.R.(2d) 31; 792 A.P.R. 31, found the accused guilty. The accused appealed.

The Nova Scotia Supreme Court dismissed the appeal.

Criminal Law - Topic 1386.1

Motor vehicles - Impaired driving - Roadside screening test - Demand - At 6:43 p.m, after a "high risk takedown" on a public highway, a police officer informed the accused that he was being arrested for possession of a weapon and making threats with a weapon - He was read his Charter rights and police caution - The officer noted a smell of liquor on the accused's breath - There were reports that the accused had been intoxicated - An approved screening device was unavailable - It was decided to make the demand at the police station where the other offences were to be dealt with - Upon arrival at 7:17 p.m., an approved screening device demand was made - The accused refused to comply and was charged with refusal - The accused asserted that the demand did not fall within the immediacy requirements of s. 254(2) of the Criminal Code - The trial judge found the accused guilty - The case fell into the category of "unusual circumstances" where the forthwith requirement under s. 254(2) of the Criminal Code could be given a more flexible interpretation - The Nova Scotia Supreme Court dismissed an appeal.

Criminal Law - Topic 1386.2

Motor vehicles - Impaired driving - Roadside screening test - Time and place for - [See Criminal Law - Topic 1386.1 ].

Cases Noticed:

R. v. Grant, [1991] 3 S.C.R. 139; 130 N.R. 250; 93 Nfld. & P.E.I.R. 181; 292 A.P.R. 181; 67 C.C.C.(3d) 268, refd to. [para. 5].

R. v. Thomsen (1988), 84 N.R. 347; 27 O.A.C. 85; 40 C.C.C.(3d) 411 (S.C.C.), refd to. [para. 5].

R. v. Bernshaw (N.) (1995), 176 N.R. 81; 53 B.C.A.C. 1; 87 W.A.C. 1; 95 C.C.C.(3d) 193 (S.C.C.), refd to. [para. 5].

R. v. Cote (1992), 54 O.A.C. 281; 70 C.C.C.(3d) 280 (C.A.), refd to. [para. 7].

R. v. Debaie (W.A.) (2000), 187 N.S.R.(2d) 188; 585 A.P.R. 188 (Prov. Ct.), refd to. [para. 7].

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. 7].

R. v. Pierman (M.B.) (1994), 73 O.A.C. 287; 92 C.C.C.(3d) 160 (C.A.), refd to. [para. 10].

R. v. Torsney (B.) (2007), 221 O.A.C. 191; 2007 ONCA 67, refd to. [para. 13].

Counsel:

David Hirtle, representing the appellant;

Paul Scovil, representing the respondent.

This appeal was heard at Bridgewater, Nova Scotia, on January 11, 2007, by Stewart, J., of the Nova Scotia Supreme Court, who delivered the following judgment on March 21, 2007.