Mar 18, 2014

Summary of R. v. MacFadden

R. v. MacFadden, 2006 NSSC 32 (CanLII)
The accused was charged, inter alia, with impaired driving causing bodily harm and operating a motor vehicle with an illegal blood alcohol content. The accused had been involved in a single vehicle accident and when the police arrived on the scene, he was sitting in an ambulance. The officer detected the odour of alcohol within the ambulance and asked the accused what happened, to which the accused replied 'I lost control'. The officer noted that the accused had glassy eyes and slurred speech. Although he felt that he had grounds at that time to make a demand for a breath or blood sample, the officer did not do so but allowed the accused to proceed in the ambulance to the hospital along with the severely injured occupant of the vehicle. The officer requested that a second officer be dispatched to the hospital with a blood sample kit. He provided particulars about the accused to the second officer and advised that he had reasonable and probable grounds to believe that he was impaired and had been operating a motor vehicle. A demand for a blood sample was made to the accused at the hospital which was complied with. The accused applied to have the statement he made to the officer while in the ambulance and the results of the blood sample excluded from evidence on the basis that his Charter rights had been violated.Statement of the accused admitted into evidence; evidence of blood sample excluded from evidence. In spite of the confined area of the ambulance, a reasonable person would not likely conclude that they were detained in the early stages of the conversation and there was nothing about the subsequent conversation between the accused and the officer which was offensive in terms of the accused's Charter rights. However, it was impossible for the court to determine that the officer who made the demand for a blood sample had reasonable and probable grounds to believe that the accused was impaired at the time that he was operating a motor vehicle as it was not clear that the second officer was even told the time that the accident occurred. In addition, no inquiry was made by the officer as to the condition of the accused to determine whether his physical condition might prevent him from providing a breath sample as opposed to a blood sample.