SECTION 7 - DESTROYED POLICE STATION VIDEO

The accused argued that the destruction of the police station video of the accused impunged his right to make full answer and defence. Although the Crown did not lead any evidence of what the video may or may not have shown, nor did the defence indicate how its destruction prejudiced its case, the trial judge entered a stay.

On appeal the court found the trial judge's decision to be premature and speculative. In a case such as this there needed to be a factual foundation to prove that the accused's ability to make full answer and defence was actually harmed. The judge should have proceeded with the trial and made the decision after hearing the evidence. R. v. Gilchrist, 2011 S.J. No. 751 

FORTHWITH - THE 'BIG SHOT' ARGUMENT

The accused, an NFL football player, was stopped by police and required to provide a sample of breath into an ASD. It took 4 minutes for the ASD to arrive. The accused did not provide an adequate sample of breath. A second ASD was brought to the scene, and he still did not provide a sufficient sample. He was charged with refusal.

The court did not accept that a well-conditioned football player could not provide an adequate sample.

The accused argued that because of his unique personal circumstances that he had a phone and was an NFL player who had immediate access to American lawyers who in turn had connections with Canadian lawyers, he should have been allowed access to a lawyer before providing a sample. The court referred to this as the 'Big Shot' argument.

The court pointed out that although an assessment as to whether or not the accused would have had a reasonable opportunity to 'consult' with counsel needed to include all the circumstances, it did not include those particular to a detainee that would only be available to those of privilege and wealth. The court also pointed out that even if it did, there was no reasonable opportunity for the accused to contact and consult with counsel in the given time period. R. v. Westerman, 2012 ONCJ 9

8 1/2 YEARS FOR DRIVING OFFENCES

The accused pled guilty to impaired driving, driving while disqualified and hit and run. He had 22 previous convictions for impaired driving, and had been convicted 13 times for driving while disqualified. He was sentenced to 5 years for impaired driving, 3 years consecutive for driving while disqualified and 6 months consecutive for the hit an run. R. v. Naugle, 2010 NSPC 11

SECTION 8 - VEHICLE SEARCH IS REASONABLE WHERE ACCUSED IS ARRESTED TO FOR DRUG IMPAIRED DRIVING

The accused was arrested for drug impaired driving. Police proceeded to search his vehicle for drugs and located some shotgun shells in knapsack in the trunk of the vehicle. The shells would later be linked to a murder investigation. The accused argued the search was unlawful. The court held that the search was lawful because its purpose was to locate evidence that would be helpful to the impaired driving offence. Police were entitled to search the entire vehicle incidental to the accused's arrest. R. v. Pearson, [2011] O.J. No. 5537

SECTION 10(B) - IT IS OKAY FOR POLICE TO REMIND ACCUSED ABOUT LEGAL AID

The accused told the officer that he did not have a lawyer. The officer reminded the accused about the free Legal Aid service. The accused argued that the officer had improperly steered her towards Legal Aid. The court did not agree. If she did not want to talk to Legal Aid she could have asked to look at a phone book. R. v. Rice, [2011] S.J. No. 743 (Q.B.)