R. v. Spin (R.), (2014) 339 N.S.R.(2d) 179 (CA)

JudgeBeveridge, Farrar and Bryson, JJ.A.
CourtCourt of Appeal of Nova Scotia (Canada)
Case DateSeptember 16, 2013
JurisdictionNova Scotia
Citations(2014), 339 N.S.R.(2d) 179 (CA);2014 NSCA 1

R. v. Spin (R.) (2014), 339 N.S.R.(2d) 179 (CA);

    1073 A.P.R. 179

MLB headnote and full text

Temp. Cite: [2014] N.S.R.(2d) TBEd. JA.015

Her Majesty the Queen (appellant) v. Rudolph Joseph Spin (respondent)

(CAC 408350; 2014 NSCA 1)

Indexed As: R. v. Spin (R.)

Nova Scotia Court of Appeal

Beveridge, Farrar and Bryson, JJ.A.

January 8, 2014.

Summary:

The accused was convicted of driving while having an excessive blood-alcohol level and causing an accident that resulted in bodily harm. He appealed.

The Nova Scotia Court of Appeal, in a decision reported at (2011), 307 N.S.R.(2d) 344; 975 A.P.R. 344, allowed the appeal, ordering a new trial. At the retrial, the accused was found not guilty. The Crown appealed.

The Nova Scotia Court of Appeal dismissed the appeal.

Civil Rights - Topic 8368

Canadian Charter of Rights and Freedoms - Denial of rights - Remedies - Exclusion of evidence - The accused faced impaired driving charges after he was involved in a head-on collision - Asserting Charter breaches, he sought exclusion of the breathalyzer results - The Crown conceded that the accused's rights under ss. 8 (unreasonable search and seizure) and 10(b) (right to counsel) of the Charter had been breached, but asserted that the breathalyzer certificate was admissible under s. 24(2) - In excluding the certificate, the trial judge stated, "The evidence, although relevant, can in no way be considered reliable, nor serve the truth-seeking function of the justice system." - The accused was acquitted - On the Crown's appeal, the Nova Scotia Court of Appeal held that the trial judge's statement represented "a clear error in principle" - Nothing suggested that a breach of the accused's Charter rights had in any way undermined the reliability of the breathalyzer certificate - Having found that the trial judge was in error, the proper disposition of the appeal required the court to undertake a new analysis under s. 24(2) - An appellate court had the jurisdiction to carry out the analysis if the record was, as here, adequate to do so - See paragraphs 44 to 50.

Civil Rights - Topic 8368

Canadian Charter of Rights and Freedoms - Denial of rights - Remedies - Exclusion of evidence - The accused faced impaired driving charges after he was involved in a head-on collision - The trial judge found a number of Charter breaches and excluded the certificate of breath analyses from evidence - The accused was acquitted - The Nova Scotia Court of Appeal dismissed the Crown's appeal - The Charter-infringing conduct by the police was serious - First, the officer breached the accused's s. 7 rights - Then, he detained the accused at his mother's home without reading him his Charter rights, leading to a s. 10 breach - The officer read the approved screening device demand without advising the accused of his right to counsel - Had the accused exercised that right, he could have refused the demand with impunity as it was not lawful - The officer's conduct showed an utter disregard for the accused's rights - The breaches were fundamental to the Charter and were neither fleeting nor technical - The breaches allowed the police to obtain evidence that they might not otherwise have had - While the case involved a collision that resulted in serious injury, to allow the admission of the evidence in light of the police conduct would negatively impact the public's perception of the administration of justice - These were multiple, inter-related breaches that led to obtaining the only evidence on which the accused could be convicted - The court agreed with the trial judge that the evidence ought to be excluded under s. 24(2) of the Charter - See paragraphs 51 to 79.

Courts - Topic 2106

Jurisdiction - Appellate jurisdiction - Court of appeal - Criminal appeals - [See first Civil Rights - Topic 8368 ].

Criminal Law - Topic 1379.2

Offences against person and reputation - Motor vehicles - Impaired driving - Breathalyzer - Admissibility where Charter right breached - [See both Civil Rights - Topic 8368 ].

Criminal Law - Topic 4973

Appeals - Indictable offences - Powers of Court of Appeal - Power to review and weigh evidence - [See first Civil Rights - Topic 8368 ].

Cases Noticed:

R. v. White (J.K.), [1999] 2 S.C.R. 417; 240 N.R. 1; 123 B.C.A.C. 161; 201 W.A.C. 161, refd to. [para. 13].

R. v. Grant (D.) (2009), 391 N.R. 1; 253 O.A.C. 124; 2009 SCC 32, appld. [para. 41].

R. v. MacGregor (R.O.) (2012), 313 N.S.R.(2d) 281; 990 A.P.R. 281; 2012 NSCA 18, refd to. [para. 42].

R. v. Buhay (M.A.) (2003), 305 N.R. 158; 177 Man.R.(2d) 72; 304 W.A.C. 72; 2003 SCC 30, refd to. [para. 42].

Counsel:

William D. Delaney, Q.C., for the appellant;

Michael Taylor, for the respondent.

This appeal was heard at Halifax, Nova Scotia, on September 16, 2013, by Beveridge, Farrar and Bryson, JJ.A., of the Nova Scotia Court of Appeal. On January 8, 2014, Farrar, J.A., delivered the following judgment for the court.

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5 practice notes
  • R. v. MacLellan, 2019 NSCA 2
    • Canada
    • Court of Appeal of Nova Scotia (Canada)
    • January 18, 2019
    ...been expended, this Court should now make the appropriate determination (as opposed to remitting it to the SCAC). See e.g. R. v. Spin, 2014 NSCA 1 at ¶ 50. My “interests of justice” analysis therefore follows. The Interests of Justice [128] In this part, I will elaborate on Smith’s “interes......
  • R v Pawlivsky, 2020 SKCA 75
    • Canada
    • Court of Appeal (Saskatchewan)
    • June 25, 2020
    ...to determine that he would refuse the ASD demand, there is a persuasive argument that he would have done so with impunity (R v Spin, 2014 NSCA 1, 9 CR (7th) 308). [55] Second, I am not prepared to conclude that simply because Mr. Pawlivsky had no practical ability to consult counsel from th......
  • R. v. Gunter, 2020 NSSC 61
    • Canada
    • Supreme Court of Nova Scotia (Canada)
    • March 5, 2020
    ...Judge Murphy did, in the alternative, carry out a s. 24 (2) analysis. [45]         In R. v. Spin, 2014 NSCA 1 our Court of Appeal had cause to review the Crown’s appeal of Mr. Spin’s retrial.  At the retrial, the Crown conceded ......
  • R.v. MacDermott, 2020 NSPC 33
    • Canada
    • Provincial Court of Nova Scotia (Canada)
    • July 30, 2020
    ...by law to do so.” [29]         The Crown Attorney also points out that in R v. Spin, 2014 NSCA 1, the statement to the police was excluded pursuant to the principles established in White, but in that case, Ms. White testified that she believed ......
  • Request a trial to view additional results
5 cases
  • R. v. MacLellan, 2019 NSCA 2
    • Canada
    • Court of Appeal of Nova Scotia (Canada)
    • January 18, 2019
    ...been expended, this Court should now make the appropriate determination (as opposed to remitting it to the SCAC). See e.g. R. v. Spin, 2014 NSCA 1 at ¶ 50. My “interests of justice” analysis therefore follows. The Interests of Justice [128] In this part, I will elaborate on Smith’s “interes......
  • R v Pawlivsky, 2020 SKCA 75
    • Canada
    • Court of Appeal (Saskatchewan)
    • June 25, 2020
    ...to determine that he would refuse the ASD demand, there is a persuasive argument that he would have done so with impunity (R v Spin, 2014 NSCA 1, 9 CR (7th) 308). [55] Second, I am not prepared to conclude that simply because Mr. Pawlivsky had no practical ability to consult counsel from th......
  • R. v. Gunter, 2020 NSSC 61
    • Canada
    • Supreme Court of Nova Scotia (Canada)
    • March 5, 2020
    ...Judge Murphy did, in the alternative, carry out a s. 24 (2) analysis. [45]         In R. v. Spin, 2014 NSCA 1 our Court of Appeal had cause to review the Crown’s appeal of Mr. Spin’s retrial.  At the retrial, the Crown conceded ......
  • R.v. MacDermott, 2020 NSPC 33
    • Canada
    • Provincial Court of Nova Scotia (Canada)
    • July 30, 2020
    ...by law to do so.” [29]         The Crown Attorney also points out that in R v. Spin, 2014 NSCA 1, the statement to the police was excluded pursuant to the principles established in White, but in that case, Ms. White testified that she believed ......
  • Request a trial to view additional results

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