IMPAIRED CAUSING ACQUITTAL BUT DANGEROUS CAUSING CONVICTION

This case is a good example of a situation where the the police and the Crown proceeded on both impaired driving and dangerous driving charges. Mr. McLennan was driving on Creek Road in the Town of Amherstburg. After completing a curve on that road, his evidence was that the right wheels of his car dropped off the paved portion of the road, he immediately attempted to pull the vehicle back onto the roadway and in doing so, overcorrected and lost control of the vehicle, resulting in the crash that tragically took the life of his son. There was evidence Mr. McLennan had been drinking. At his jury trial both the Crown and defence called toxicology experts.  Mr. McLennan was acquitted of the impaired causing death charge but convicted of the dangerous driving causing death charge. At his appeal, his counsel argued that the fact of his drinking short of impairment was legally irrelevant to the dangerous driving charge. The Court disagreed and upheld his dangerous driving conviction:

When dealing with a dangerous driving charge, it is not inappropriate in considering whether a driver’s conduct is a marked departure from that of a reasonable driver in similar circumstances, to consider whether or not that person has consumed alcohol and if so to what degree before operating the motor vehicle – as I have said it goes to mindset and a willingness to assume risk. R. v. McLennan, 2016 ONCA 732

SUPREME COURT OF CANADA - "AS SOON AS PRACTICABLE" AND "COUNSEL WITHOUT DELAY" ANALYZED

In this case Mr. Rowson was allowed to call counsel while he was still at the roadside.  He made some statements while he was at the roadside, and later provided breath samples that were over 80.  The trial judge, in R. v. Rowson, 2014 ABQB 79, found that Mr. Rowson's Charter rights had been infringed as he was arbitrarily detained and his right to retain and instruct counsel without delay had been breached.  The judge then excluded certain statements Mr. Rowson made to the police prior to speaking to a lawyer, but declined to exclude evidence of Mr. Rowson's breath sample which was taken as a consequence of a failed screening device test and after Mr. Rowson had spoken to a lawyer. Mr. Rowson was convicted of impaired driving causing bodily harm and dangerous driving causing bodily harm and those convictions were upheld by the Alberta Court of Appeal in R. v. Rowson, 2015 ABCA 354.  The appeal of that decision was dismissed by the Supreme Court of Canada on October 17th: R. v. Rowson, 2016 SCC 40.

IMPAIRED CAUSING BODILY HARM CONVICTION UPHELD

The case of R. v. Logue, 2016 ONCA 659 provides a useful summary of the type of evidence that a Court can look to in order to find that a driver was impaired:

Four considerations taken together reasonably supported the trial judge’s finding that the appellant’s ability to operate a motor vehicle was impaired by alcohol: first his evidence of alcohol consumption; second the accident was unexplained; third the appellant’s obstructive behaviour in the ambulance; and fourth the statutory inference available from the appellant’s refusal to give a breath sample. 

SECTION 253 - IMPAIRED BY A DRUG - SUPREME COURT OF CANADA

The Supreme Court of Canada heard argument on Thursday October 13th and reserved their decision in the R. v. Bingley appeal.  Witnesses who saw Mr. Bingley driving said he was "all over the road". A DRE was called, did an evaluation and demanded a urine sample. The main issue before the Supreme Court of Canada is which rule of evidence governs the admissibility of DRE opinion evidence. Earlier decisions are R. v. Bingley, 2012 ONSC 1186, R. v. Bingley, 2014 ONSC 2432 and R. v. Bingley, 2015 ONCA 439. The factum containing Mr. Bingley's written argument for the Supreme Court is linked here. 

AS SOON AS PRACTICABLE - EXPLANATIONS NEEDED WHEN CHOOSING WHICH DETACHMENT TO TAKE SUSPECT TO

Mr. Prestupa was arrested for impaired driving near the town of Viscount, Saskatchewan. The officer drove him about 80 kms to Saskatoon for breath samples. At trial there was evidence that three other RCMP detachments were closer than Saskatoon.  The trial judge acquitted Mr. Prestupa on the basis that the breath samples were not obtained "as soon as practicable" as "all things being equal the breath samples could have been taken sooner".  The Crown's summary conviction appeal was allowed and that court entered a guilty verdict. The Saskatchewan Court of Appeal dismissed Mr. Prestupa's appeal. The Court pointed out some of the reasonable explanations the officer gave with respect to his decision:  he knew Saskatoon had a breath machine (he was not sure about the other detachments) and he called a breath tech from the roadside to ensure the tech was ready at the Saskatoon detachment by the time they got there.  The Court also confirmed the following principle:

The phrase “as soon as practicable” is well established: [I]t simply means the breath samples must be taken within a reasonably prompt time in the circumstances. In other words, the Crown does not need to prove that breath samples were taken as soon as possible to satisfy the “as soon as practicable” requirement. R. v. Prestupa, 2016 SKCA 118