DRIVING WITHOUT INSURANCE AND/OR WHILE SUSPENDED

In British Columbia the fine for driving without insurance is $520 and a 15% surcharge. In Ontario a first offence is a minimum $5000. On a subsequent conviction the minimum fine is $10,000. The accused also risks losing his licence for 1 year.

American studies indicate that that as many as 75% of suspended and revoked drivers continue to drive at least occasionally. A Guide for Addressing Collisions Involving Unlicensed Drivers with Suspended or Revoked Licenses(Washington Transportation Research Board 2003)

SECTION 10(B) - ACCUSED'S FAILURE TO RECALL ROADSIDE STATEMENT USED TO ASSESS CREDIBILITY

The appellant argued that the trial judge improperly used a statement made by the accused prior to being informed of section 10(b) to convict. The officer testified that he said to the appellant, "I think you have had too much to drink," and she replied, "I think you are right." The appellant could not recall the exchange but was certain that she did not say that. The trial judge did not err. The judge did not use the contents of the statement to convict the accused but rather used the fact that she was unable to recall the same at trial in assessing her credibility. R. v. Steeves, 2009 CanLII 67417, leave to appeal refused 2010 ONCA 711.

REFUSAL - EVIDENCE TOO IMPRECISE TO CONVICT

Following an ASD demand, the accused asked a range of questions about the process he was facing. What would happen to his car? Would it be towed? Would his licence be suspended and for how long? What were the various penalties? What type of reading would the instrument provide? What was the difference between a refusal and impaired conviction? The questions lasted for 14 minutes. Police concluded that the accused was stalling and charged him with refusal.

Unfortunately, the officers could not recall exactly what was said and their notes were described as 'regrettably somewhat sparse'. Although police concluded that the accused was stalling, there was little reference to what the accused said to support their conclusion.

The appellate court held that the evidence was too imprecise and general to convict. Although one could conclude that the officers felt that the appellant was filibustering and unequivocally refusing, it was impossible for the fact finder to reach that conclusion on the general and equivocal evidence offered. Accepting every word of the officers’ testimony as accurate leads only to this conclusion: the appellant asked a lot of questions, some of which were repetitive, over a period of 14 minutes.

Without some ultimatum that made it clear that no further questions would be answered and the time arrived to provide a sample, the appellant could not be taken to have unequivocally refused.

R. v. Sangha, 2011 ABQB 656

SECTION 10(B) - IF SUPSECT WANTS TO CALL A THIRD PARTY HE MUST TELL POLICE WHY

Police refuse to allow the accused to call his brother-in-law. The accused does not tell them why he wants to call and police tell him that he is only allowed to call a lawyer. Accused wanted to call to get the number for a a particular lawyer.

If a detainee wants to call a third party to get the name and/or number of counsel, police must allow the call. However,  the detainee must tell the police that is the reason for the call. There is no obligation on the police to ask unless there something that suggests that is the reason. R. v. Singh, 2011 ONCJ 435

SECTION 9 - DENTENTION AFTER AN ASD REFUSAL RESULTS IN A STAY

The accused was arrested after an ASD refusal. Since the accused was from another location the officer decided to take him back to the police station to complete the paperwork, and take fingerprints and photographs. His only purpose was to avoid having the accused come back at later date to go through the process. There was no risk that the accused would drive his vehicle because it was being towed. He was not being detained for safety of the public. There were no issues with respect to establishing the accused's identity, or issues about him attending court. Essentially, there were no reasons to take him back to the police station. He could have been released at the roadside. Absent grounds under section 495, a person cannot be arrested and placed in cells solely for the convenience of the accused person or the officer. Although the accused was in custody for less than 2 hours, it was arbitrary and warranted a stay of proceedings.  R. v. Boylan, 2011 BCPC 0235