R. v. Wagstaff, (1988) 85 N.S.R.(2d) 77 (ProvCt)

• Judge: Batiot, J.
• Court: Provincial Court of Nova Scotia (Canada)
• Case Date: March 17, 1988
• Jurisdiction: Nova Scotia
• Citations: (1988), 85 N.S.R.(2d) 77 (ProvCt)

R. v. Wagstaff (1988), 85 N.S.R.(2d) 77 (ProvCt);

    216 A.P.R. 77

MLB headnote and full text

R. v. Robert K. Wagstaff

Indexed As: R. v. Wagstaff

Nova Scotia Provincial Court

Batiot, J.

March 17, 1988.

Summary:

An accused was charged with the offence of refusal of an A.L.E.R.T. demand. Within three to five minutes of being charged, the accused asked to comply with the demand. The police officer refused to let him take the test on the ground that he had been out of the police officer's presence after he gave the refusal.

The Nova Scotia Provincial Court acquitted the accused.

Criminal Law - Topic 1386.1

Motor vehicles - Impaired driving - Roadside screening test - Demand - The Nova Scotia Provincial Court held that an A.L.E.R.T. demand, which did not warn the accused that a refusal was an offence, was an incomplete demand, and that a refusal of such a demand was not a refusal under s. 238(5) of the Criminal Code - See paragraphs 9 to 21.

Criminal Law - Topic 1386.3

Motor vehicles - Impaired driving - Roadside screening test - Refusal - An accused refused to comply with an A.L.E.R.T. demand - Given the demand again at a nearby police station, he again refused - About 20 minutes after the original demand, the accused was charged under s. 238(2) of the Criminal Code - Within three to five minutes after he realized he was charged with refusal, the accused asked to comply with the demand - The police officer refused his request - The Nova Scotia Provincial Court acquitted the accused - The court stated that the accused had a reasonable time to decide whether or not he was going to comply - The court further stated that an offer to comply that immediately followed a refusal, negated the refusal - See paragraphs 9 to 21.

Cases Noticed:

R. v. Hebb (1985), 17 C.C.C.(3d) 545; 33 M.V.R. 174; 66 N.S.R.(2d) 91; 152 A.P.R. 91, appld. [para. 8].

R. v. MacLeod (1981), 9 M.V.R. 294; 35 Nfld. & P.E.I.R. 427; 99 A.P.R. 427 (C.A.), appld. [para. 9].

R. v. Hatt (1970), 14 C.R.N.S. 196 (N.S.C.C.), appld. [para. 9].

R. v. Marks (1983), 61 N.S.R.(2d) 369; 133 A.P.R. 369 (C.A.), dist. [para. 13].

R. v. Bowman (1978), 25 N.S.R.(2d) 716; 36 A.P.R. 716 (C.A.), dist. [para. 13].

R. v. McGauley (1974), 16 C.C.C.(2d) 419; [1974] 5 W.W.R. 577 (B.C.C.A.), dist. [para. 13].

R. v. Johnston (1988), 3 W.C.B.(2d) 129, refd to. [para. 16].

R. v. Brotton (1983), 24 M.V.R. 76; 28 Sask.R. 78, refd to. [para. 19].

R. v. Vause (1985), 37 M.V.R. 74; 42 Sask.R. 275 (Q.B.), appld. [para. 21].

R. v. Kays (1987), 82 N.S.R.(2d) 18; 207 A.P.R. 18, refd to. [para. 22].

R. v. Andrews (1987), 82 N.S.R.(2d) 27; 207 A.P.R. 27, refd to. [para. 22].

Statutes Noticed:

Criminal Code, R.S.C. 1970, c. C-34, sect. 238(2) [paras. 1 and 5]; sect. 238(3) [para. 19]; sect. 238(5) [para. 1]; sect. 241(1)(c) [para. 22].

Counsel:

David E. Acker, for the Crown;

Caroll Daniels, for the accused.

This case was heard at Annapolis Royal, Nova Scotia, by Batiot, J., of the Nova Scotia Provincial Court, who delivered the following judgment on March 17, 1988.