CARE OR CONTROL - NOT GUILTY OF OPERATE OVER 80 BUT GUILTY OF CARE OR CONTROL OVER 80

This case is an excellent review of the elements of the offence of being in care or control of a motor vehicle while over 80.  At trial Mr. Pawluk was acquitted of impaired operation of a motor vehicle and operation while over 80. On appeal the Ontario Court of Appeal upheld the acquittals on the "operation" counts but substituted a verdict of guilty for the included offence of having "care or control" of a motor vehicle while over 80:

The law alerts an accused to their jeopardy for included offences, and in this case, questions were asked of [the officer] that could only be relevant to the issue of Mr. Pawluk’s care or control. It should not have come as a surprise when the Crown sought a care or control over 80 conviction. R. v. Pawluk, 2017 ONCA 863

COLLISION RE-ENACTMENT - USE OF A GOPRO CAMERA REVIEWED

Although not an impaired driving case, this appeal decision provides a good review of how a collision re-enactment video was used in a dangerous driving trial:

The vehicle driven by [the constable] during the re-enactment was similar to the 2005 Highlander driven by Mr. Gosse and [the constable] wore the GoPro on her forehead to adjust for any height differential between herself and Mr. Gosse. The motorcycle was placed in three different positions in order to provide a perspective on what Mr. Gosse would have been able to see. It is my view that it is clear from the viewing of the Ogden Point video, and from the enlarged video, that Mr. Broda’s motorcycle was going around the speedbump and entering back into the roadway when the collision occurred. R. v. Gosse, 2017 BCCA 356

APPROVED SCREENING DEVICE - A SECOND ASD TEST DUE TO MOUTH ALCOHOL UPHELD

Mr. Norrie was stopped and an ASD demand was made of him.  Before blowing (and failing) he said his last drink was two hours earlier. Then when the officer was later looking in Mr. Norrie’s vehicle, he spotted two full cans of beer in the centre counsel and became concerned that the presence of mouth alcohol might have distorted the screening device result. So the officer waited 15 minutes and then made another ASD demand and Mr. Norrie blew and failed (again). There was an acquittal at trial but the Crown’s appeal was allowed and a new trial ordered.  In a short decision, R. v. Norrie, 2017 ONCA 795, the Ontario Court of Appeal has refused Mr. Norrie’s application for leave to appeal. The summary conviction appeal judgment, R. v. Norrie, 2016 ONSC 4644, states:

Mr. Norrie was not arbitrarily detained.  To the contrary, his detention was justified.  He was detained for the purpose of ensuring that he was given a fair test.  The further detention of Mr. Norrie to facilitate a second test was within the officer’s power and contemplated by section 254(2) of the Criminal Code. It is clear that [the officer] had an honest belief on reasonable grounds that the delay was necessary to deal with the mouth/alcohol question.

SECTION 8 - CONVICTION BASED ON OFFICER ASKING SUSPECT TO BLOW INTO FACE UPHELD

Mr. Rule was convicted at trial of exceed .08 and his appeal was dismissed. He sought leave to appeal that decision, arguing that the officer's request to smell Mr. Rule's breath by asking him to blow in his face was a violation of his section 8 rights. His application was dismissed:

The officer’s screening measure was minimally intrusive and speedily performed at the roadside and was therefore reasonable. R. v. Rule, 2017 MBCA 86

SENTENCE - SENTENCE REDUCED FROM 43 MONTHS TO 23 MONTHS

Mr. Joe appealed his sentence of 43 months imprisonment plus three years’ probation for one count of refusal to provide a breath sample, one count of impaired driving and breach of an undertaking (see April 2, 2017 blog entry). He argued that the sentencing judge erred in failing to adequately consider his Aboriginal background, his moral blameworthiness and in his application of the principle of rehabilitation. The appeal was allowed: the threshold for appellate intervention is reached if the sentencing judge erred in principle and that error had an impact on sentence; or the sentencing judge imposed a sentence that is demonstrably unfit. Here, the trial judge erred in principle in three ways: failing to give tangible effect to Mr. Joe’s Aboriginal background; in effect, requiring Mr. Joe to demonstrate a causal connection between his Aboriginal circumstances and the offence; and failing to give proper or adequate weight to the objective of assisting in Mr. Joe’s rehabilitation. R. v. Joe, 2017 YKCA 13