Saturday, April 14, 2018 at 1:10PM 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, April 8, 2018 at 9:34AM 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, March 31, 2018 at 11:09AM 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, March 24, 2018 at 12:04PM 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.
Saturday, March 17, 2018 at 8:01AM 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