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Reviews of Investigating Impaired Drivers
Saturday
Mar172018

SECTION 10(B) - RIGHT TO COUNSEL - NOT ASKING "DO YOU WISH TO CALL A LAWYER?" NOT A BREACH

Mr. Knoblauch was arrested for impaired driving and read his rights to counsel.  The patrol car video showed that he had not been asked the question “Do you wish to call a lawyer?”. Once they got to the detachment Mr. Knoblauch was asked “if he wanted to call a lawyer” and he said “No”. There was a conviction at trial but, on appeal, a breach was found due to the officer not asking the question “Do you wish to call a lawyer?”. However the Saskatchewan Court of Appeal restored the conviction and repeated some important guidelines:

It is now well settled that s. 10(b) imposes certain duties on police officers when arresting or detaining individuals, namely: (a) to inform a detainee, without delay, of his or her right to retain and instruct counsel; (b) if a detainee has indicated a desire for counsel, to provide the detainee with a reasonable opportunity to exercise the right (except in urgent and dangerous circumstances); and (c) to refrain from questioning or otherwise attempting to elicit evidence from a detainee until he or she has had a reasonable opportunity to consult and retain counsel (except in urgent and dangerous circumstances). The first duty identified has been described as an informational one, while the second and third duties are implementational in nature and “are not triggered unless and until a detainee indicates a desire to exercise his or her right to counsel” (emphasis added). R. v. Knoblauch, 2018 SKCA 15

Saturday
Mar102018

VICTIMS OF VIOLENCE - IMPAIRED DRIVING RESEARCH LIBRARY

"Victims of Violence" is a Canadian federally registered charitable organization, which began in 1984.  Their website has a very thorough section on impaired driving under the "Research Library" heading.

Saturday
Mar032018

SECTION 10(B) - RIGHT TO COUNSEL IN A HOSPITAL SETTING

Hospitals are busy places, and many operate at full capacity. There may be logistical impediments: many rooms are unsuitable because they contain potentially dangerous objects (syringes, scalpels, etc.) or confidential files. For the same reason that a police officer does not have to allow use of his or her personal cell phone, medical staff cannot be expected to share their offices with detained persons. That said, police have a duty to take reasonable steps to determine whether there is a place where the necessary privacy is available, while still allowing the police to control the detained person.  In this trial, the Judge accepted the officer’s testimony that although he made no efforts to find a place that would afford Mr. McConnell privacy, and therefore he did not give Mr. McConnell the opportunity to contact counsel while at the hospital, he knew from frequent visits to the emergency room of that hospital that there was no suitable telephone in that area and taking him outside the emergency room was impossible because he “was hooked up to medical equipment, and ... under constant monitoring”. The officer did not question Mr. McConnell while at the hospital and provided him an opportunity to contact a lawyer immediately upon return to the police station. R v McConnell, 2018 ABCA 51

Saturday
Feb242018

SUPREME COURT OF CANADA - "HOLD OFF"

The right to counsel under s. 10(b) of the Charter obliges police to “‘hold off’ from attempting to elicit incriminatory evidence from the detainee until he or she has had a reasonable opportunity to reach counsel. This applies to attempting to obtain breath samples into an approved instrument the same as it applies to attempting to obtain a verbal statement from an arrested or detained suspect:

When the officer asked the appellant if he wanted to speak with a lawyer, the appellant invoked his right to counsel, replying: “uh, yes.” The officer then read the appellant the standard police “caution” from the same card he kept in his notebook: You may be charged with sexual assault and breach. You are not obliged to say anything unless you wish to do so, but whatever you say may be given in evidence. Do you wish to say anything? The appellant immediately responded with a verbal statement.  The Supreme Court of Canada concluded that verbal statement was obtained via a breach of his s. 10(b) right to counsel, and then held that the verbal statement ought not to have been admitted as evidence and ordered a new trial.  R. v. G.T.D., 2018 SCC 7

Saturday
Feb172018

SUPREME COURT OF CANADA - FAILURE TO STOP AT SCENE OF ACCIDENT

The old phrase “guilty and how” seemingly would apply to Mr. Seipp.  He was convicted for failing to remain at the scene of an accident.  He appealed his conviction but the Supreme Court of Canada dismissed his appeal:

The evidence on which Mr. Seipp relies is that he fled the scene to avoid criminal liability for possession of a stolen vehicle. This is not evidence to the contrary. Rather, it is evidence that Mr. Seipp intended to avoid criminal or civil liability from his care, charge, or control of the vehicle involved in the accident. R. v. Seipp, 2018 SCC 1

Another common reason for suspects failing to remain at the scene of an accident is that there were driving while impaired.  Based on Mr. Seipp’s case, and not surprisingly, that would not amount to a defence either.