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                                                          SUPREME COURT OF NOVA SCOTIA

                                                   Citation: R. v. Boyce, 2004 NSSC 261

                                                                                                                              Date:     20041216

                                                                                                                 Docket:  S.H. No. 226350

                                                                                                                       Registry:  Halifax, NS

Between:

 

                                                            Shawn Edward Boyce

                                                                                                                                            Appellant

                                                                             v.

 

Her Majesty the Queen, on the information of Constable Aurele Pelletier

 

                                                                                                                                        Respondent

 

                                                                             

LIBRARY HEADING

 

 

Judge:             The Honourable Associate Chief Justice Michael MacDonald

 

Heard:                        November 17, 2004  in Halifax, Nova Scotia

 

Written Decision:       December  16, 2004  

 

Subject:           Criminal Law, Charter - Section 9 - Arbitrary Detention - Off Highways Vehicle Act, R.S.N.S. 1989, c. 5, as amended; Summary Conviction Appeals, Scope of Appellate Review

 

Summary:         On July 19, 2002, at approximately 10:30 p.m. two R.C.M.P. officers were patrolling in a cruiser along Pine Hill Drive in Gaetz Brook, Halifax County. The officers noticed an all-terrain vehicle (“ATV”) traveling along a  recreational trail, but  heading towards this public street. The ATV was being operated by the Appellant, Mr. Shaun Boyce. The officers, at that time believing that Mr. Boyce  was about  to drive the ATV  illegally along a public street, decided to stop him.  They pulled up to and stopped their cruiser in front of the ATV, thereby preventing Mr. Boyce  from traveling any further towards the street. The officers then  approached Mr. Boyce with the sole  purpose of warning him  not to travel on the highway. During this brief initial encounter, the officers detected signs of impairment by alcohol. This led to a breathalyzer demand, and Mr. Boyce  being subsequently charged under s. 253 of the Criminal Code.


The trial was held before Associate Chief Judge Gibson of the Nova Scotia Provincial Court. Mr. Boyce argued that by this initial encounter he was detained. He further argued that because he was ostensibly doing nothing illegal at the time, this detention was arbitrary; thereby leading to a s. 9 Charter breach.  As such, Mr. Boyce  sought to have the conscripted breathalyzer evidence excluded pursuant to s. 24(2) of the Charter.

 

Gibson, A.C.J.  found that while the initial encounter amounted to a detention, it was not arbitrary in the circumstances. He found this police action to be justified as  part of their common law investigative authority. Consequently, the learned Trial Judge concluded that Mr. Boyce’s Charter rights were not breached. As a result, he was convicted of “failing the breathalyzer” [ s. 253(b)].  The Appellant challenges this finding.

 

Issue:              Did the Trial Judge commit reversible error?         

 

Result:            Appeal dismissed.  The Trial Judge committed no error.  He found that the Appellant’s detention was not arbitrary.  This was a sound finding in the circumstances of this case.

 

 

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