SUPREME COURT OF CANADA - APPROVED INSTRUMENT OPERATION

The Supreme Court of Canada has dismissed Mr. Lam's application for leave to appeal an order that he have a new trial on an exceed .08 charge.  Mr. Lam was acquitted at trial because the trial judge declined to admit the certificate of analysis. The trial judge considered that the failure to send the approved instrument – an Intoxilyzer – for annual inspection for 13 months amounted to evidence tending to show that the instrument was “operated improperly”, thus defeating the presumption in s. 258(1)(c) and rendering evidence of the results of the analysis inadmissible. The Crown's summary conviction appeal was allowed and a new trial was ordered:

The trial judge had erred in elevating the recommendations of the Alcohol Test Committee that approved instruments be inspected annually to a condition precedent for proper operation of the instrument. Also, whether the instrument was “operated improperly” was a question of law for the trial judge to decide, not an issue upon which the expert witness was entitled to offer an opinion. R. v. Lam, 2016 ONCA 850; leave to appeal dismissed, Lam v. R., 2017 CanLII 21428 (SCC)

LEGISLATION - NEW IMPAIRED DRIVING LAWS PROPOSED

The Federal Justice Minister announced on April 13th that "this Bill, if it passes Parliament, will be one of the strongest impaired driving pieces of legislation in the world." Details of the proposed changes can be found at Department of Justice - Strengthening Impaired Driving Laws.

SUPREME COURT OF CANADA - NO APPEAL FOR RIGHT TO COUNSEL AT ROADSIDE CASE

The Supreme Court of Canada has dismissed Mr. Caswell's application for leave to appeal: Caswell v. R., 2017 CANLII 18650 (SCC). A majority of the Alberta Court of Appeal had re-affirmed that the preliminary investigative role played by the screening sample provisions is such that the detained person is not entitled to retain and instruct counsel before either complying with or refusing the demand (see 2016 ABCA 305, November 12, 2016 blog entry). As far as any changes to that principle, they stated "that door is closed until the Supreme Court says otherwise." 

SENTENCING - RELEASE PENDING APPEAL

Mr. Joe pleaded guilty to one count of refusal, one count of breach of undertaking and was convicted after trial for one count of care or control while exceeding .08.  He had 12 prior related convictions and 4 prior drive while disqualified convictions. He was sentenced to a global sentence of 43 months imprisonment.  He then appealed his conviction and sentence. He was released on bail pending the hearings of those appeals:

Ultimately, the best manner for the public to be protected is if the Appellant is able to take control over his drinking and begin to address the many issues that he has in his life. He has demonstrated an ability to not drink for extended periods of time in the past, which establishes that he is capable of doing this. I am satisfied that it remains possible to release the Appellant on terms that will ensure that the public is protected and the confidence of the public in the administration of justice is maintained. But the release terms have to be stringent and structured. R. v. Joe, 2017 YKCA 1

SECTION 8 - WEIGH SCALE LEADS TO ACQUITTAL

Ms. McLachlan failed an approved screening device test, was arrested and taken for breath samples. Upon arrival at the cell block, Ms. McLachlan was placed in the custody of a qualified breath technician who advised her that it was normal practice for her to stand on a scale and provide her weight.  She asked: “Do I have to?” and the officer replied: “Yes, I need your weight”.  The trial judge concluded that the officer requiring Ms. McLachlan to stand on a scale was an illegal search.  The breath samples results were excluded and she was acquitted.  The Crown appealled but the appeal was dismissed:

The process used in these circumstances causes further difficulty given that no specific caution was provided to the Respondent on the issue of standing on the scale and she was not able to obtain legal advice on this demand. R. v. McLachlan, 2017 ONSC 1471