New & Notable: SCC trims the fat from 258

On Friday November 2, 2012 the Supreme Court released two decisions which had been long awaited: R v St-Onge Lamoureux, 2012 SCC 57; R v Dineley, 2012 SCC 58. While the decisions deal with different issues (constitutionality of 258(1)(c), (d), (d.01) and (d.1) in the case of the former and the retrospectivity of those provisions in the case of the latter) they are linked and both have a notable impact on “over 80” prosecutions.

 

In St-Onge Lamoureux the majority, authored by Deschamps J, struck out the second and third prong of the 258(1)(c) presumption as set out in Bill C-2 passed in July 2008. In Dineley – which will be the subject of a later post – the majority, also authored by Deschamps J, held that those same amendments – as they stood after St-Onge Lamoureux – did not apply retrospectively.

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New & Notable: Just blow if you really aren't driving...

Jeffrey MacKenzie got out of the driver's side door of a car that was on the shoulder of the 401 express lanes in Toronto. He later would say he was not the driver. Nonetheless, a tow truck driver saw him get out of the driver's seat and when police arrived he was standing in front of the car talking on his phone. 
The tow truck driver advised the police that MacKenzie was the driver - something he admitted under cross-examination was an assumption based on what he had observed. The officer made further observations including bloodshot eyes, smell of alcohol and slurred speech. 
The officer ultimately made a demand pursuant to section 254(2) of the Code. MacKenzie refused. He was charged with refusal. At trial Caldwell J considered, inter alia, whether the Crown had to prove that MacKenzie was in fact the driver: 2012 ONCJ 424.
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New & Notable: Driving impaired not a marked departure? Not that it's the test anyway...

Suggashie was acquitted after trial of impaired operation of a motor vehicle contrary to s 253(1)(a) of the Criminal Code.

The trial was held in the First Nation territory of Pikangikum.

 

On appeal [2012 ONSC 22929], which was held in absentia, the Crown argued two grounds:

 

First, that the trial judge erred in law in finding that issue at trial was whether the conduct of the accused demonstrated a marked departure from that of a normal person.

Second, that the trial judge erred in finding that First Nations peacekeepers are peace officers with all the rights and responsibilities that such a designation entails.

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New & Notable: Sleeping it off in the wrong place

Jody Smits was sleeping in the back seat of a van. His van was parked on the side of the road in rural Cambridge. Apparently he was initially headed back to Barrie. Clearly he did not make it there. Instead he decided to sleep in the back of his van.
Around 7:15 am someone noticed his van on the side of hte road. That person later called police. When the police arrived they noticed the van was not running. They saw Smits in the back seat asleep. The keys were in the ignition. After waking Smits the officer formed grounds for an arrest and Smits was ultimatley charged with impaired care or control.
He was convicted at trial. He successfully appealed to the summary conviction appeal level.
The Crown appealed. The Court of Appeal allowed the Crown's appeal and restored the conviciton: 2012 ONCA 524.
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New & Notable: Sleeping it off in the wrong place

Jody Smits was sleeping in the back seat of a van. His van was parked on the side of the road in rural Cambridge. Apparently he was initially headed back to Barrie. Clearly he did not make it there. Instead he decided to sleep in the back of his van. Around 7:15 am someone noticed his van on the side of hte road. That person later called police. When the police arrived they noticed the van was not running. They saw Smits in the back seat asleep. The keys were in the ignition. After waking Smits the officer formed grounds for an arrest and Smits was ultimatley charged with impaired care or control.
He was convicted at trial. He successfully appealed to the summary conviction appeal level. The Crown appealed. The Court of Appeal allowed the Crown's appeal and restored the conviciton: 2012 ONCA 524.
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New & Notable: What does "practicable" mean anyway?

Krishna Naidu was involved in a collision.  Naidu drove through a stop sign.  Perhaps because his BAC was 130 mg%.  Constable Hodgins arrived at 2:42.  He read a screening demand at 2:52.  Naidu failed at 2:53 or 2:55. Hodgins arrested Naidu and made a breath demand at 3:07.  That 12 or 14 minutes became the subject of the trial and ultimately a ruling from the Court of Appeal: 2012 BCCA 150 (SCCA: 2010 BCSC 851).

 

During those 12 or 14 minutes the officer arrested Naidu, handcuffed him, sat him in the cruiser, spoke to him about pain in his wrist, ran his licence with ICBC and check him on CPIC and finally read him his Charterrights. 

 

Naidu argued, inter alia, that the CPIC and ICBC checks were not necessary and took the demand outside the ASAP window.  On summary conviction appeal Kelleher J noted that the 2008 amendments to section 254(3) saw the removal of "forthwith" from that section.  This was relevant, held Kelleher J, and points toward a more flexible approach to the issue.  Ultimately Kelleher J agreed with the trial judge that the conduct of the officer was reasonable and the steps taken during that 12 to 14 minutes were connected to the stop and arrest and did not result in the demand being made ASAP.

The Court of Appeal dismissed a further appeal by Naidu.

While making a demand as soon as one forms the requisite grounds for the demand is always best practice, Naidu confirms that so long as you are performing tasks associated with the arrest and processing of the accused - and are able to articulate those steps - which are reasonable, the demand made thereafter will be ASAP.  

Current & Curious: How many ways can you say "forthwith"?

Peter Quansah may be colour blind, more likely he was just intoxicated. At 3:03 am he was spotted by a police officer sitting at a green light, not moving. The officer approached Quansah and noted that he was sitting in the driver's seat with his eyes closed. The officer attempted, for 10-15 seconds to waken Quansah; the officer noted Quansah had red and bloodshot eyes.
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New & Notable: Bad driving can be a "strong indicator"

Jorge Barahona was driving his car on December 6, 2007. He lost control of his car, left the highway, entered the snow bank and continued for about 160 metres. His car then began spinning and slid into a light standard. A taxi happened by and found Barahona in his car on the road. The taxi driver inquired if Barahona needed help and he indicated that he was fine. The taxi driver left the scene but was concerned so he called 911. A short time thereafter an officer arrived. He ultimately made observations which lead to an arrest for impaired care or control.
At trial on charges of impaired and “over 80” care or control, two issues arose: R v Barahona, 2011 ONCJ 418. 
 
First, was the first sample taken within two hours of the time of the offence. Brewer J found that the time of the offence was the time of care or control as noted by the taxi driver (who testified). In accepting this as the time of the offence Brewer J noted that where the presumption of care or control applies (which it did in this case) operability of the vehicle is irrelevant: R v MacKay-Clouthier, 2009 CarswellOnt 8596 (SCJ). Based on this time the first sample was taken within two hours [paras 12-16].
 
Second, did the Crown prove the impaired charge. In considering the issue Brewer J noted that the question – as set out in R v Andrews, 1996 CarswellAlta 7 (CA) – was “whether the totality of the accused’s conduct and condition can lead to a conclusion other than that his or her ability to drive is impaired to some degree” [para 19]. In the present case Brewer J noted the driving evidence coupled with the fact the road conditions were good and there was no evidence of any other “force or condition” which could have caused the accident was “one of the strongest indicators” [para 20]. Brewer J found the Crown had proven the impaired charge.

 
DG Mack

New & Notable: One more reason to always call the BT

I have always said – whenever asked – that in an “over 80” case the Crown shouldalways call the qualified breath technician. There are many reasons for this. The recent case of R v Michel,2011 SKQB 356 illustrates one of those reasons.
 
Jason Michel was charged with “over 80”.  After being arrested Michel provided two samples of his breath.  The readings were recorded in a certificatewhich the Crown filed at trial.  The certificateindicated that Michel’s BAC was “.200” and “.190” milligrams per 100millilitres.
 
This error was not picked up during the trial. During closing submissions defence counsel pointed out this error andsought an acquittal.  The trial judge convicted Michel holding that the error was obviously a typographical error:2010 CarswellSask 894.  Michel appealed:2011 SKQB 356.
 
On appeal Scherman J held that the trial judge had erred.  While it is possible to correct errors in acertificate with viva voce evidence, in the present case therewas no such evidence [para 5].  Scherman J concluded as follows:
 
In the absence of evidence of an error in completing the certificate and what the actual readings were, it is my opinion that the learned Provincial Court judge had no alternative but to accept the facts as stated in the certificate to becorrect and conclusive proof of the accused’s blood alcohol content [para 14].
DG Mack

New & Notable: A missed opportunity

Drug impaired driving prosecutions – albeit not common place – are quite contentious. The new legislation, the drug recognition expert (DRE) and disclosure have all been recent subjects of litigation [see for example my recent blog: So what mark did you get in criminal law?]. In the recent case of R v Steeves, 2011 NBCA 88 the New Brunswick Court of Appeal had the opportunity to consider some of these issues and provide some helpful appellate authority. Unfortunately, the court took another route.
Kenneth Steeves was charged with drug impaired operation. At trial the Crown sought to tender evidence of two officers; one to testify in relation to “drug evaluation and classification” and the other to testify as a “drug recognition expert”. The trial judge initially admitted the evidence of both witnesses. Later, however, and without notice, the trial judge reconsidered this ruling and held that the evidence was not admitted. Steeves was acquitted and the Crown appealed.
While it would have been helpful if the court had considered the issue the trial judge had difficulty with – the admissibility of DRE evidence – the court dealt with the appeal in a different way. The court held that while the trial judge was not functus, and therefore could have reconsidered the issue as he did, the trial judge erred by reconsidering it without notice: see R v Pinchak, 2010 ABQB 747. The court held that where the trial judge decides to reconsider an issue “the parties should be put on notice that the matter is being reconsidered and invited to make further submissions” [para 13].  

 

DG Mack