SUPREME COURT OF NOVA SCOTIA
Citation: R. v. LaFosse, 2010 NSSC 240
Date: 20100624
Docket: Hfx No. 318185A
Registry: Halifax
Between:
Justin Guy MacLeod LaFosse
Appellant
v.
Her Majesty The Queen
Respondent
LIBRARY HEADING
Judge: The Honourable Justice M. Heather Robertson
Heard: February 10, 2010, in Halifax, Nova Scotia
Decision: June 24, 2010
Subject: Appeal of a conviction for operating a motor vehicle with an illegal blood alcohol s. 253(b) C.C.C.
Summary: At trial, the police officer failed to testify as to his subjective belief that the appellant had operated the motor vehicle while his ability to do so was impaired by alcohol resulting in a s. 8 Charter violation.
Section 10(b) Charter violation caused, when the police officer failed to fully convey the appellant’s right to immediately exercise his right to counsel at the police station, when provided with a private room and telephone in circumstances where the appellant was under a misapprehension that Legal Aid could be later available to him at trial if he qualified for free legal assistance and did not understand that duty counsel was immediately available. While the police officer had at the scene read from a card in his note book and provided information on the appellant’s right to counsel and available telephone numbers, he failed to repeat this informational component at the police station, in the three to five minutes that passed before the appellant merely agreed to provide a breath sample, having failed to reach counsel by phone.
Issue: Whether ss.8 or 10(b) Charter violations occurred. Could they be cured by s. 24(2) of the Charter, as provision of a breath sample was minimally unintrusive and where no intentional infringing conduct and where the certificate met the tests for admission? R. v. Grant [209] S.C.J. No. 32.
Result: Although Charter breaches of ss. 8 and 10(b) did occur, the certificate was reliable and crucial evidence pursuant to s. 258 C.C.C. and was properly admitted into evidence by the trial judge. Conviction stands. Appeal dismissed.
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