SUPREME COURT OF CANADA - BREATH DEMANDS

The Supreme Court of Canada heard arguments Thursday regarding the appeal of the R. v. Alex case, 2015 BCCA 435 (see May 28, 2016 blog entry). The Court reserved judgment in a case that will decide whether the 41 year old R. v. Rilling case is still good law. That case has been relied on to argue that, absent a Charter challenge, lack of reasonable grounds can only be used as a defence to a refusal charge. Mr. Alex's factum can be found here and the Crown's Respondent factum is linked here. 

CIRCUMSTANTIAL EVIDENCE - IMPAIRED CAUSING DEATH CONVICTION UPHELD

Sometimes circumstantial cases are the strongest cases - if there are enough circumstances. Circumstantial cases rely on a number of pieces of evidence, as opposed to one confession (which may be ruled inadmissable) or one eyewitness (who may admit at trial that they were not wearing their glasses). In Mr. Cook's case the issue was the identity of the driver of the snowmobile during the crash that killed the victim. The Ontario Court of Appeal upheld Mr. Cook's conviction, saying "the trial judge proceeded to consider the many strands of circumstantial evidence and then assessed their cumulative effect." There must have been many strands of circumstantial evidence - the appeal judgment states that the trial lasted 45 days.  R. v. Cook, 2016 ONCA 794

APPROVED SCREENING DEVICE - REASONABLE SUSPICION

During a R.I.D.E. program a police officer approached Mr. Schouten's truck and immediately detected an odour of alcohol on his breath. The police officer advised Mr. Schouten of this observation. He indicated he had had his last drink about 10 hours earlier. He did not know how much, or what, he had had to drink or when he had fallen asleep the night before. The police officer made a roadside breath demand. Mr. Schouten provided a breath sample; the roadside screening device registered a fail. Mr. Schouten was acquitted at trial and that acquittal was upheld in Superior Court (R. v. Schouten, 2016 ONSC 378). However the Ontario Court of Appeal allowed the Crown's appeal and ordered a new trial:

It is not necessary that a person show signs of impairment to found a basis for making a roadside breath demand. Nor is it necessary that a police officer suspect the person is committing a crime. All that is required is that the police officer making the demand has reasonable grounds to suspect that a person has alcohol in their body. The absence of the indicia of impairment even when combined with the fact that the respondent claimed to have consumed his last drink 10 hours earlier did not negate the possibility that the respondent had alcohol in his system, which was raised by the presence of an odour of alcohol on his breath and his admission of consumption. R. v. Schouten, 2016 ONCA 872

APPROVED INSTRUMENT MAINTENANCE RECORDS DISCLOSURE

The Alberta Court of Appeal has released its decision with respect to disclosure of approved instrument maintenance records:

The Crown’s first party disclosure obligations under Stinchcombe extend only to “fruits of the investigation”. The documents in the standard disclosure package could be described as the time-of-test documents, and are clearly “fruits of the investigation”. The balance of the maintenance records requested by the respondents are not, however, “fruits of the investigation”, and they are subject to third party O'Connor disclosure. As a matter of evidence in these appeals, and as a matter of logic generally, historical maintenance records will rarely if ever be actually relevant to making full answer and defence in a particular prosecution, and therefore the accused will rarely be able to show “likely relevance” of those records. As to the evidence in these particular appeals, the uncontradicted expert evidence is that historical maintenance records are irrelevant to proving the accuracy or inaccuracy of any particular test. The “maintenance” records that are relevant to that issue are whether the instrument performed the particular test as designed, or registered a “fail”. R. v. Vallentgoed, 2016 ABCA 358

For earlier decisions, see R. v. Vallentgoed, 2015 ABCA 202 and R. v. Vallentgoed, 2015 ABQB 206. There was a dissenting judgment in the Court of Appeal, so we may see this case at the Supreme Court of Canada next.

THE "DOOR" IS STILL CLOSED TO RIGHT TO COUNSEL AT ROADSIDE

The Alberta Court of Appeal has 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.  At paragraph [4] the Court wrote "That door is closed until the Supreme Court says otherwise." And further, "Parliament has chosen to provide a 'powerful tool to curtail, investigate and prosecute drinking and driving related offences', and the continuing social harm by such offences 'fully justifies the existence of this procedure'." R. v. Caswell, 2016 ABCA 305

For background, see blog entry dated March 14, 2015 and also see R. v. Caswell, 2015 ABCA 97, R. v. Caswell, 2014 ABQB 640 and R. v. Caswell, 2014 ABPC 55.