SECTION 8 - SEARCH OF TRUNK OF CAR AFTER ARREST FOR IMPAIRED DRIVING REASONABLE

Mr. Pearson argued that shotgun shells found in the trunk of his car during a traffic stop on January 15, 2008 should have been excluded during his eventual murder trial because the search of the his car was not incidental to his arrest for impaired driving. The trial judge dismissed that argument and the Ontario Court of Appeal has agreed with that ruling:

The officer arrested Mr. Pearson for impaired driving. He searched Mr. Pearson’s vehicle incident to arrest, finding shotgun shells in a knapsack in the trunk. The arrest of Mr. Pearson for impaired driving was lawful. The search was undertaken to look for marijuana and by a police officer who was not involved at all in the homicide investigations. Discovery of marijuana in the trunk of Mr. Pearson’s car and in his knapsack would have some probative value on the issue of whether his ability to drive was impaired by marijuana.  There was a reasonable basis for the officer’s actions and a reasonable prospect of finding evidence of the offence for which Mr. Pearson had been arrested. R. v. Pearson, 2017 ONCA 389

AUTOMATIC ROADSIDE DRIVING PROHIBITION LEGISLATION STRUCK DOWN IN ALBERTA

Mr. Sahaluk's case involved a challenge to provincial legislation that provided for the mandatory roadside suspension of the driver’s licence of any person charged with an alcohol related driving offence under the Criminal Code, a suspension which continues in place until the disposition of that criminal charge. The Court declared those provisions to be of no force or effect, but the declaration of invalidity was stayed for one year:

Evidence tendered before the chambers judge, who found the legislation to be constitutionally sound, included statistics that about 20% of drivers who become subject to an administrative licence suspension are ultimately found not guilty of any alcohol related driving charge, yet were prohibited from driving for significant periods of time prior to trial. Further, evidence and logic suggest that some drivers may choose to plead guilty notwithstanding the availability of an arguable defence, because a guilty plea allows an accused to apply to drive with an ignition interlock device in a substantially shorter period of time than if his or her charge is resolved by trial. In other words, drivers may be induced to surrender their constitutional right to the presumption of innocence and the right to a trial, in the hopes of being granted permission to drive much earlier than if they waited to be acquitted at trial. Sahaluk v. Alberta, 2017 ABCA 153

SECTION 258(7) - NOTICE OF INTENTION TO PRODUCE CERTIFICATE - SIX YEAR OLD OFFENCES CONCLUDED

Mr. Schofield was charged with impaired driving, exceed .08 and drive while disqualified in May 2011. He was convicted of the drive while disqualified but acquitted of the other two charges after a trial in 2013.  The Crown’s appeal was allowed and the acquittals were over turned and a new trial ordered in 2015 (see February 22, 2015 blog entry).  At the end of his second trial in 2015 he was acquitted, again, because the Court held he was not provided with reasonable notice of the Crown’s intention to introduce the Certificate of Analyses as required by section 258(7).  The Crown’s appeal of that ruling was allowed, the Court set aside the acquittal, substituted a conviction for the exceed .08 count and remitted the matter to the Provincial Court for the purpose of sentencing. The following principles of law were listed:

Notice to his counsel is notice to Mr. Schofield; that no particular method of giving notice under s. 258(7) is required; that the tendering of a certificate at a preliminary inquiry meets the notice requirements; that the purpose of notice was to ensure Mr. Schofield knew the case he had to meet and was in a position to properly prepare his defence; that a second notice is not required for a second trial and that there was no prejudice to Mr. Schofield. R. v. Schofield, 2017 NSCA 30

SUPREME COURT OF CANADA - APPROVED INSTRUMENT MAINTENANCE RECORDS DISCLOSURE

The Supreme Court of Canada has granted leave to hear the appeals of two cases where disclosure of approved instrument records was the issue: R. v. Vallentgoed and R. v. Gubbins, 2017 CanLII 25794 and 25782 (SCC). This comes at the same time that the Federal Government is proposing to amend the Criminal Code to specifically address what approved instrument records should be disclosed:

Crown disclosure - The proposed legislation would clarify what evidence the Crown must provide the defence in relation to breath testing on a breathalyzer at the police station. The Crown would only be required to disclose information that is scientifically relevant, such as the result of calibration checks and any messages produced by the breathalyzer. Defence could apply for further disclosure relating to breath testing and would obtain it if they satisfy the court that the material sought is relevant: Strengthening laws against alcohol-impaired driving.

SUPREME COURT OF CANADA - NO APPEAL FOR "DOOR KNOCK" CASE

The Supreme Court of Canada has dismissed the Crown’s application for leave to appeal Mr. Rogers’ impaired and exceed .08 acquittals in a case where knocking on his apartment door was the issue - R. v. Rogers, 2017 CanLII 21419 (SCC). The judgment the Crown was applying to appeal reads:

I have concluded that if a trial judge finds on all of the evidence a police officer knocked on the door to a residence for the purpose of securing evidence against the occupant, the officer is conducting a search within the meaning of s. 8 of the Charter.  As set out in Evans, a warrantless search is presumed unreasonable and the Crown has the onus of showing that it was reasonable. As found in Evans, if there is no valid warrant the search of a dwelling is unreasonable, and following Evans I find that the search in this matter to be a breach of s. 8 of the Charter. R v Rogers, 2016 SKCA 105 (see August 28, 2016 blog entry).