CONVICTION UPHELD IN ASD CHEWING GUM CASE

While the police officer’s assumption that he needed to wait to administer the ASD test because Mr. Pawlivsky was chewing gum was found by the appeal judge to objectively unreasonable, the officer nonetheless honestly believed he was acting appropriately. It follows from the officer’s honest belief in the need to delay the administration of the ASD that he also believed Mr. Pawlivsky’s s. 10(b) rights to be suspended during that period of time. While “ignorance of Charter standards must not be rewarded or encouraged” there is nothing on the record to show that the police officer was acting in bad faith – on the contrary, he wanted to ensure the test results were reliable. R. v. Pawlivsky, 2020 SKCA 75

CHARGES STAYED DUE TO ARREST FOR REFUSAL

The Alberta Court of Appeal, in R. v. Veen, 2020 ABCA 240, has granted the Crown permission to appeal the following case:

Mr. Veen was charged with refusing to provide a breath sample. He was arrested without warrant and taken into custody for approximately one and a half hours. The trial judge found that there were grounds to arrest Mr. Veen, but the public interest could have been satisfied without arresting him. Since the arrest did not comply with s 495(2), it was unlawful and in breach of Mr. Veen’s right under s 9 of the Charter to be free from arbitrary arrest or detention. As a remedy, the trial judge stayed the proceedings. The earlier decisions are R. v. Veen 2019 ABPC 55, and R. v. Veen, 2020 ABQB 99.

SENTENCE - GLADUE CONSIDERED

Mr. Serre appealed his sentence of six years less credit for 26 months he spent in custody that he received after being convicted of impaired driving, dangerous driving, failing to stop while being pursued by the police, and driving while disqualified. He argued that the trial judge erred by failing to fully apply Gladue principles when considering his criminal record. His appeal was dismissed: the trial judge stated that the paramount consideration on sentencing was the protection of other drivers and other users of the roads. R. v. Serre, 2020 ONCA 311

SENTENCE - SENTENCE REDUCED AFTER TRIAL JUDGE IMPOSES HIGHER SENTENCE THAN CROWN ASKED FOR

Mr. Bulland was convicted of impaired driving causing bodily harm after a trial. Crown counsel asked for a sentence of 2 years, less a day, followed by probation for 3 years. Mr. Bulland asked for an intermittent sentence of 60 to 90 days. The trial judge imposed a sentence of 39 months, 15 months longer than the sentence suggested by the Crown. An appeal was allowed and the sentence was varied to two years, to be followed by three years probation. R. v. Bulland, 2020 ONCA 318

ACQUITTAL - REFUSAL IN CAUSING DEATH CASE

In a 189 paragraph long judgment (R. v. Jensen, 2020 ABQB 237), which was preceded by a 98 paragraph long voir dire ruling (R. v. Jensen, 2020 ABQB 5), Mr. Jensen was found not guilty of both dangerous driving causing death and refusing to comply with a demand to provide a sample of his breath at a time when he knew or ought to have known that his operation of a motor vehicle caused an accident that resulted in the death of another person: Austin MacDougall, a member of the RCMP stationed in Edson, Alberta, died in a tragic accident on July 5, 2017.  Cst. MacDougall was off duty at the time of his death.  An avid cyclist, he was riding his racing bicycle on the shoulder of Highway 16 just west of the town limits of Edson at about 8:50 p.m. that evening, when a Dodge pickup truck drove onto the shoulder and collided with him and his bicycle.  Cst. MacDougall was thrown into the ditch.  He died immediately.