SECTION 10(B) - RECORDING RIGHT TO COUNSEL RESPONSES

During a dangerous driving causing death investigation, Mr. Dunford gave a warned statement. Both at trial and on appeal his counsel argued that the statement should not be admissible due to the fact that the officer should have recognized that Mr. Dunford did not understand his right to counsel and warnings.  That argument was rejected.  The case is a good example of the importance of officers recording suspects’ responses to questions about whether they understand their rights to counsel and whether they want to call a lawyer:

The police do not have an obligation to respond to a detainee’s misunderstanding of his rights or how to implement them if that misunderstanding is not communicated to the police or if there are no other indicators suggestive of a lack of comprehension. These indicators viewed objectively must signal confusion or misunderstanding. R. v. Dunford, 2017 SKCA 1. The trial judgment is found at R. v. Dunford, 2015 SKQB 322 and the sentencing decision is found at R. v. Dunford, 2015 SKQB 386. 

SECTIONS 10(A) AND 10(B) - SUSPECT'S JEOPARDY CHANGES

Mr. Moore was intially arrested for dangerous driving causing bodily harm as a result of a "road rage incident".  He called and spoke to duty counsel from the police station. Then he was later told that he was also facing a charge of assault with a weapon out of the same incident. Mr. Moore then called and left a message to speak to his "own lawyers". However the investigating officer took a statement from Mr. Moore before the lawyers called back and spoke to Mr. Moore. He was convicted at trial but the Ontario Court of Appeal allowed his appeal and ordered a new trial, concluding that the new charge increased his jeopardy and the police breached his s. 10(b) Charter rights by failing to afford him a second opportunity to speak to counsel. R. v. Moore, 2016 ONCA 964

SUPREME COURT OF CANADA - BREATH DEMANDS

The Supreme Court of Canada has dismissed an application for leave to appeal Mr. Guenter's conviction: 2017 CanLII 1334 (SCC). In his case the arresting officer "completely forgot" to read him the breath demand at the horrific crash scene.  The qualified technician read Mr. Guenter the breath demand later at the police station. The trial judge convicted Mr. Guenter by concluding that the qualified technician "had made a demand as soon as practicable after he had formed proper grounds, the requirements of s. 254(3) were met, and the taking of the breath samples was lawful." R. v. Guenter, 2016 ONCA 572 (see August 21, 2016 blog entry).

SENTENCE - SUPREME COURT OF CANADA - R. V. SUTER

The Supreme Court of Canada does not often hear sentence appeals.  They recently released the decision in R. v. Lacasse, 2015 SCC 64, an impaired causing death case in which they re-instated a 6 1/2 year jail sentence (see February 7, 2016 blog entry). This year they will hear an appeal of a "refusal to provide a breath sample after having caused a collision resulting in death" case, R. v. Suter, 2016 ABCA 235 (see September 18, 2016 blog entry). In that case the Alberta Court of Appeal increased the sentence from 4 months to 26 months imprisonment. Leave to appeal was granted on January 12, 2017 and some of the commentary can be found here. 

IMPAIRED DRIVING STATS RELEASED IN TIME FOR THE HOLIDAY SEASON

Statistics Canada released their "Impaired Driving in Canada, 2015" report on December 14th. The highest impaired driving rates were reported in the Northwest Territories, Yukon and Saskatchewan. The lowest rates were in Ontario, Quebec and Manitoba. 

So there is still some work to do, especially during the holiday season.  An example of such work is from the Minnesota "Over The Limit - Under Arrest" program from a few years ago, which included arresting an elf for impaired driving.