IN THE SUPREME COURT OF NOVA SCOTIA
Citation: R. v. Cameron, 2003NSSC229
Date: 20031125
Docket: S.H. 204682
Registry: Halifax
Between:
Gerry Edward Cameron
Appellant
v.
Her Majesty the Queen
Respondent
LIBRARY HEADING
Judge: The Honourable Justice Glen G. McDougall
Heard: October 22, 2003
Last Written
Submission: October 22, 2003
Written Decision: November 25, 2003
Subjects: Is there a requirement for the Crown to prove that the screening device used to test for presence of alcohol in the blood is an “approved” instrument? The timing and appropriate notice requirements for making a Charter argument.
Summary: The appellant was convicted at trial of failing the breathalyzer- s. 253(b) of the Criminal Code. The defence raised two Charter challenges at trial pertaining to the admissibility of the results of the roadside screening device. After a voir dire both Charter motions were denied by the trial Judge. Subsequently the certificate of analysis of the breathalyzer test was admitted in evidence. After close of the Crown’s case the defence, in summing up its case, raised a third Charter challenge. It argued that since the Crown had not proved that the screening device used was not an “approved” instrument, the results of the failed test could not be used to establish reasonable and probable grounds for a breathalyzer demand. Without the results of the roadside screening device the Crown conceded that there was insufficient evidence to establish the required reasonable and probable grounds.
Issue: Did the trial judge err in law by ruling that the roadside screening device was an “approved” instrument and for finding there were reasonable and probable grounds for making a breathlyzer demand?
Result: There is no requirement for the Crown to prove that the roadside screening device used was an “approved” instrument. In order to support a Charter challenge as to the admissibility of the results of the test there has to be some evidence that the screening device is not an approved instrument. If such a challenge is made, it should only be done after proper notice is given. If, as was the case here, the Charter challenge arises after the close of the Crown’s case, the Crown should be allowed to re-open its case to lead additional evidence on a voir dire. Since there is no need to prove that the screening device was an approved instrument and since there was no evidence to suggest that the instrument was not approved the results of the screening device test could properly be admitted and used to establish reasonable and probable grounds for making a breathalyzer demand.
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