Court of Appeal

NOVA SCOTIA COURT OF APPEAL

Citation:  R. v. Spin, 2011 NSCA 80

Date:  20110915

Docket:  CAC 339874

Registry: Halifax

Between:

Rudolph Spin

Appellant

v.

Her Majesty the Queen

Respondent

Judge:                   The Honourable Justice Duncan R. Beveridge

Appeal Heard:      May 18, 2011

Subject:                Criminal Law:  Reliance on expert opinion evidence to establish blood alcohol level; Charter of Rights:  consequences of invalid approved screening device demand.         

Summary:             A police officer formed a reasonable suspicion that the appellant had alcohol in his blood at the time he had been driving.  The officer delayed in giving an approved screening device demand.  The trial judge found that the officer had not met the statutory requirements to make the demand valid.  The invalidity of the demand led to a finding of a s. 8 violation, but the trial judge found no s. 10(b) violation.  He declined to exclude the breath sample results under s. 24(2).  Expert opinion evidence extrapolated the breath results back to the time of driving.  The opinion evidence was based on assumptions about the alcohol concentration of the liquor  consumed, and varied depending on the quantity consumed within the half hour preceding driving.  The trial judge found the Crown had proved beyond a reasonable doubt that the appellant’s alcohol level was in excess of 80 mg. of alcohol in 100 ml. of blood.

Issue:          Did the trial judge err in failing to find a s. 10(b) violation and in relying on the expert opinion evidence?

Result:                  The trial judge committed no error in his analysis or reliance on the expert opinion evidence.  He did err in not finding a violation of s. 10(b) of the Charter of Rights.  This would impact on the potential remedy under s. 24(2) of the Charter to exclude the breath test results.  Although this Court has the power to conduct the analysis mandated by s. 24(2), there was conflicting evidence at trial about matters that could impact that analysis.  In the circumstances a new trial was ordered.