R. v. Tripp (W.L.), (2002) 208 N.S.R.(2d) 101 (PC)

• Judge: Crawford, P.C.J.
• Court: Provincial Court of Nova Scotia (Canada)
• Case Date: February 07, 2002
• Jurisdiction: Nova Scotia
• Citations: (2002), 208 N.S.R.(2d) 101 (PC);2002 NSPC 29

R. v. Tripp (W.L.) (2002), 208 N.S.R.(2d) 101 (PC);

 652 A.P.R. 101

MLB headnote and full text

Temp. Cite: [2002] N.S.R.(2d) TBEd. OC.018

Her Majesty The Queen v. Wayne Lewis Tripp

(1102216; 1102217; 2002 NSPC 29)

Indexed As: R. v. Tripp (W.L.)

Nova Scotia Provincial Court

Crawford, P.C.J.

April 10, 2002.

Summary:

The accused was charged with impaired driving and driving a motor vehicle while having an excessive blood-alcohol limit. The accused alleged that there was no evidence that the "S-L2 device" used for the roadside testing (which he failed) was an "approved screening device" and that his s. 10(b) Char­ter right to counsel was denied where he was advised of his rights before the breatha­lyzer demand, but not after.

The Nova Scotia Provincial Court held that the Crown proved that an "approved screen­ing device" was used. Accordingly, the of­ficers had reasonable and probable grounds for making a breathalyzer demand based on the "fail" of the roadside screening test. The accused's s. 10(b) Charter rights were vio­lated by the failure of police to advise the accused of his right to duty counsel. The ad­missibility of the breathalyzer was deferred pending argument on whether the evidence should be excluded under s. 24(2) of the Charter.

Civil Rights - Topic 4610

Right to counsel - General - Impaired driving (incl. demand for breath or blood sample) - An accused failed a roadside screening test - He was advised of his s. 10(b) Charter right to counsel then im­mediately given a breathalyzer demand - On the way to the police station and before providing a breath sample, the accused declined police invitations to consult coun­sel - The accused submitted that his right to counsel was denied where he was informed of his rights before, but not after, the breathalyzer demand - The Nova Scotia Provincial Court held that the accused's s. 10(b) rights were not violated where being advised of his rights, immediately followed by the demand, was part of the same single incident - However, the failure to advise the accused of his right to duty counsel violated his s. 10(b) rights - See para­graphs 26 to 27.

Civil Rights - Topic 4617.1

Right to counsel - General - Notice of - Sufficiency of - [See Civil Rights - Topic 4610 ].

Criminal Law - Topic 1372

Motor vehicles - Impaired driving - Breathalyzer or blood sample - Demand - Reasonable grounds - An accused failed a roadside screening test and was given a breathalyzer demand - The "Alcolmeter S-L2" was an approved roadside screening device - At trial, the officer gave evidence that an "S-L2" was used - The accused submitted that the failure to use the full name meant that the Crown failed to prove that the device used was an approved screening device and, accordingly, the officer lacked reasonable and probable grounds to make a breathalyzer demand on the basis of a "fail" of the roadside screen­ing test - The Nova Scotia Provincial Court held that the omission of the word "Alcolmeter" was not fatal - The court stated that "an accurate but incomplete description with an assertion, based on training and experience, that the device used was an approved screening device is sufficient evidence to establish beyond a reasonable doubt that the device into which the defendant blew at the scene was an approved screening device" - See para­graphs 1 to 25.

Criminal Law - Topic 1386.4

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

Cases Noticed:

R. v. Jones (B.C.) (2001), 243 N.B.R.(2d) 1; 631 A.P.R. 1 (Q.B.), refd to. [para. 18].

R. v. Lebrun (S.R.) (1999), 178 N.S.R.(2d) 388; 549 A.P.R. 388 (S.C.), refd to. [para. 19].

R. v. Dubois (G.) (2001), 190 N.S.R.(2d) 190; 594 A.P.R. 190 (Prov. Ct.), refd to. [para. 19].

R. v. Choudry, [1998] O.J. No. 6278 (Gen. Div.), refd to. [para. 23].

R. v. Black, [1989] 2 S.C.R. 138; 98 N.R. 281; 93 N.S.R.(2d) 35; 242 A.P.R. 35; 50 C.C.C.(3d) 1; 70 C.R.(3d) 97, refd to. [para. 27].

R. v. Schmautz, [1990] 1 S.C.R. 398; 106 N.R. 81; 53 C.C.C.(3d) 556, refd to. [para. 27].

R. v. Hall (V.A.) (2001), 198 N.S.R.(2d) 201; 621 A.P.R. 201 (Prov. Ct.), refd to. [para. 28].

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. 16].

Counsel:

Herman Felderhof, for the Crown;

Ronald Morris, for the accused.

This case was heard on February 7, 2002, at Bridgewater, N.S., before Crawford, P.C.J., of the Nova Scotia Provincial Court, who delivered the following judgment on April 10, 2002.