R. v. Toope (K.S.), (2002) 208 N.S.R.(2d) 129 (PC)

• Judge: Crawford, P.C.J.
• Court: Provincial Court of Nova Scotia (Canada)
• Case Date: August 13, 2002
• Jurisdiction: Nova Scotia
• Citations: (2002), 208 N.S.R.(2d) 129 (PC);2002 NSPC 30

R. v. Toope (K.S.) (2002), 208 N.S.R.(2d) 129 (PC);

 652 A.P.R. 129

MLB headnote and full text

Temp. Cite: [2002] N.S.R.(2d) TBEd. OC.019

Her Majesty The Queen v. Keith Stewart Toope

(1086425; 2002 NSPC 30)

Indexed As: R. v. Toope (K.S.)

Nova Scotia Provincial Court

Crawford, P.C.J.

September 11, 2002.

Summary:

The accused failed a roadside screening test and was given a breathalyzer demand. The accused was charged with impaired driving and driving a motor vehicle while having an excessive blood-alcohol content. The accused submitted that the Crown failed to prove that an "approved roadside screen­ing device" was used.

The Nova Scotia Provincial Court found the accused not guilty. The Crown failed to prove that an approved roadside screening device was used. Accordingly, the officer lacked reasonable grounds to make a de­mand.

Criminal Law - Topic 1372

Motor vehicles - Impaired driving - Breathalyzer or blood sample - Demand - Reasonable grounds - The "Alcolmeter S-L2" was an approved screening device (Approved Screening Devices Order, SI/85-200, s. 2) - An officer testified that he used an "S-L2", omitting a portion of the full name of the device - Further, the officer did not testify that the device used was an approved screening device - The Nova Scotia Provincial Court held that although omission of "Alcolmeter" was not fatal per se, the omission combined with no testimony that the "S-L2" was an approved screening device resulted in the Crown failing to prove that an approved screening device was used - Accordingly, the officer could not rely on a "fail" to provide reasonable grounds to make a breathalyzer demand.

Criminal Law - Topic 1386.4

Motor vehicles - Impaired driving - Road­side screening test - Evidence and proof - [See Criminal Law - Topic 1372 ].

Cases Noticed:

R. v. Tripp (W.L.) (2002), 208 N.S.R.(2d) 101; 652 A.P.R. 101 (Prov. Ct.), dist. [para. 10].

Statutes Noticed:

Approved Screening Devices Order - see Criminal Code Regulations (Can.).

Criminal Code Regulations (Can.), Approved Screening Devices Order, SI/85-200, sect. 2 [para. 8].

Counsel:

Anthony Brown, for the Crown;

Mark Dempsey, for the accused.

This case was heard on August 13, 2002, at Bridgewater, N.S., before Crawford, P.C.J., of the Nova Scotia Provincial Court, who delivered the following judgment on September 11, 2002.