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Reviews of Investigating Impaired Drivers
Saturday
Apr212018

SENTENCE - TRAFFIC VOLUME AT TIME OF DRIVING

Mr. Denny's sentence appeal was dismissed, and there was an interesting comment about traffic volume. The sentencing judge had said "However, as with any offence, there are degrees of seriousness.  In Mr. Denny’s case, both stops occurred during times of the day when traffic volumes would have been quite light, making the risk to the public reduced substantially . . . ".

However the Nova Scotia Court of Appeal held that "At the sentencing, neither the Crown nor defence counsel made any comments or led evidence on the volume of traffic, vehicular or pedestrian, present at the time Mr. Denny was stopped by the police. The sentencing judge was not asked to take traffic volumes into consideration by any party.  The traffic volumes were simply not an issue at the sentencing.  Why the sentencing judge felt it necessary to refer to them and to take them into consideration as a mitigating factor in determining sentence is somewhat of a mystery. Further, his finding that the risk is somehow reduced when someone is driving while impaired at a time of day when vehicular traffic may be lighter is not supported by any evidentiary basis." R. v. Denny, 2018 NSCA 11 

 

Saturday
Apr142018

SASKATCHEWAN FOUR-WAY STOP SIGN CASE

A conviction for exceed .08 has been upheld by the Saskatchewan Court of Appeal in a case involving the following facts:

On February 16, 2014, at approximately 9:20 PM, the police observed Mr. Rogal driving his truck in the wrong lane of a street in Biggar, Saskatchewan. The police pursued the truck, which picked up speed and went through a four-way stop. R. v. Rogal, 2018 SKCA 18

Sunday
Apr082018

CONVICTION UPHELD IN "OBSERVATION PERIOD" CASE

The New Brunswick Court of Appeal has upheld the conviction of Mr. Hebert, who was initially acquitted at trial by raising an ‘observation period’ issue:

From the evidentiary record, it was simply not possible to conclude there had been improper use of the approved instrument in obtaining the breath samples for analysis. The evidence showed unequivocally that the technician followed the steps set out in the operation manual, including the observation period of at least 15 minutes. The contention that the technician could not carry out certain preparatory tasks during this observation period is without merit given that the operation manual allows the technician to perform more than one task during this period. R. v. Hebert, 2018 NBCA 18

Saturday
Mar312018

SECTION 8 - ASD PROCEDURE REVIEW RESULTS IN CONVICTION

Mr. Jennings was charged with exceed .08 and acquitted at trial, and that acquittal was upheld at the first appeal. His defence counsel argued that the basis upon which the officer made the formal breath demand was not objectively reasonable because the officer had not followed three procedures set out in the O.P.P. manual for using the specific ASD, the Drager Alcotest 6810. The Crown's appeal to the Ontario Court of Appeal was allowed, a conviction was entered, and the matter was remitted back to the trial judge for sentencing:

Failure to follow policy or practice manual directions does not automatically render reliance on test results unreasonable. What matters is whether the officer had a reasonable belief that the device was calibrated properly and in good working order, and whether the test was properly administered. R. v. Jennings, 2018 ONCA 260

Saturday
Mar242018

SUPREME COURT OF CANADA - OBSERVATION PERIOD CASES

The Supreme Court of Canada has granted leave to hear an appeal of an "observation period" case: R. v. Cyr-Langlois, 2018 CANLII 12961 (SCC).  At issue is "was the evidence adduced by the accused to the effect that he was not under observation for a minimum of 20 minutes preceding the administration of a breathalyzer test sufficient to deny the prosecution the benefit of the presumptions set out in the Criminal Code." The Court of Appeal decision, and an earlier "observation period" case in which the Supreme Court of Canada dismissed leave to appeal, are: Cyr-Langlois v. R., 2017 QCCA 1033 and R. v. So, 2014 ABCA  451.