AS SOON AS PRACTICABLE - CHOOSING WHICH DETACHMENT TO TAKE SUSPECT TO

Mr. Fenske failed an ASD test at the US border with Manitoba. He was driven to Carman for breath samples.  He was convicted at trial but that was over turned on appeal. Mr. Fenske's position was that there was a delay caused by the decision to transport him to Carman for the breathalyzer tests and that the Crown had the onus to explain how that delay was reasonable, including explaining why inquiries were not made to conduct the tests at a closer police detachment. The officer's testimony was that he knew that the closest RCMP detachment with equipment to conduct breathalyzer testing was in Carman. The Manitoba Court of Appeal allowed the Crown's appeal and confirmed the conviction by the trial judge:

When determining whether the breath test was administered as soon as practicable, one starts by looking at the entire series of events. When one applies the “as soon as practicable” standard to the facts in this case, it is clear that the breath tests were carried out reasonably promptly and, therefore, as soon as practicable in the circumstances. R. v. Fenske, 2016 MBCA 117

SENTENCE - IMPAIRED CAUSING SENTENCE INCREASED

Mr. Gauvreau was initially sentenced to nine months jail when he pleaded guilty to one charge of impaired causing bodily harm (to his four passengers). The Crown's appeal of that sentence was allowed and the sentence was increased to fifteen months:

This is a serious offence for which the principle objective of sentencing is denunciation and deterrence, and in particular, the deterrence of others who drink and get behind the wheel of a vehicle putting many lives in danger. R. v. Gauvreau, 2017 ABCA 74

SECTION 8 - IMPAIRED CONVICTION AFTER POLICE ENTERED A RESIDENCE UPHELD

Leave to appeal an impaired driving conviction has been denied by the Saskatchewan Court of Appeal. Each case always turns on its own facts, and to paraphrase the relevant facts in this case, the trial judge found: (a) the police were investigating a traffic accident and had no ulterior purpose when attending at Ms. Bray’s residence; (b) Ms. Bray’s husband, who was outside, invited police officers into the residence and led them to Ms. Bray’s bedroom, knowing who they were and what they were about; and (c) the police officers who entered the residence did so “to make general inquiries regarding a particular occurrence.” R. v. Bray, 2017 SKCA 17. For more details the summary conviction appeal judgment is R. v. Bray, 2016 SKQB 265

SUPREME COURT OF CANADA - A DRE IS A "DRUG RECOGNITION EXPERT"

In a 5 - 2 decision released February 23rd, the Supreme Court of Canada ruled that a drug evaluating officer's opinion can be admitted as expert evidence at trial without first requiring a voir dire to determine the admissibility of the evidence.  R. v. Bingley, 2017 SCC 12 (see October 15, 2016 blog entry for the earlier decisions):

A DRE is a “drug recognition expert”, certified as such for the purposes of the 12‑step evaluation. By reason of his training and experience, a DRE undoubtedly possesses expertise on determining drug impairment that is outside the experience and knowledge of the trier of fact. He is thus an expert for the purpose of applying the 12‑step evaluation and determining whether that evaluation indicates drug impairment. His expertise has been conclusively and irrebuttably established by Parliament. Knowledge of the underlying science is not a precondition to the admissibility of a DRE’s opinion. Such knowledge is required only where the science is novel. The purpose of the special rule for novel science is to ensure that the reliability of the evidence is established by precedent, evidence or statute. In this case, the reliability of the 12‑step evaluation comes from the statutory framework itself. 

SECTION 10(B) - RIGHT TO COUNSEL AT ROADSIDE REVIEWED AGAIN

An officer conducted a traffic stop of Mr. Patrick’s vehicle at 4:20 am. The investigation lead to a concealed shotgun being seized from Mr. Patrick.  He was acquitted at trial, with one of the issues being that the court concluded that his section 10(b) right to counsel was breached because he was not allowed to call counsel from the roadside and instead called 40 minutes later from the detachment. On appeal, the Court allowed the Crown’s appeal and directed a new trial on the charges regarding the shotgun:

With respect, the trial judge was obliged in this case to consider whether the Crown discharged its burden of demonstrating that the delay was reasonable. She was obliged to meaningfully assess the officer’s stated reasons for delaying facilitation of the right: the respondent had just been arrested for carrying a loaded concealed weapon and, for safety reasons, needed to remain handcuffed until he was thoroughly searched at the detachment; the respondent might use the opportunity of a telephone call to contact other people in the context of what was clearly an ongoing investigation; and the practicalities of the situation were such that the respondent could not be afforded privacy during the call. R. v. Patrick, 2017 BCCA 57