APPROVED SCREENING DEVICE AND SECTION 24(2) - NEW TRIAL ORDERED FOR IMPAIRED OPERATION OF A VESSEL CAUSING DEATH

The accused was acquitted at trial, due in large part to the Court concluding that there was a delay (29 minutes) between the officer formulating his grounds to make the ASD demand and making the ASD demand and a delay (57 minutes) between making the demand and obtaining the breath sample.  The Court excluded the breath sample evidence (170 mg%) pursuant to section 24(2).  The Ontario Court of Appeal ordered a new trial : There were exigent circumstances that explained the first 29 minutes - the officer was dealing with the arrival of distraught friends and family members and Ms. MacMillan herself had fainted and was dealt with by paramedics. There were also explanations for the second 57 minutes - the officer wanted to be satisfied that Ms. MacMillan was medically fit to provide a sample.  However she should have been given the opportunity, during that 57 minutes, to consult counsel.  The Court noted that even with that section 10(b) breach, there is no longer a rule of automatic exclusion for breath test evidence - in its place is the analysis based on three inquiries, which will often favour admission of breath test evidence. R. v. MacMillan, 2013 ONCA 109