APPROVED SCREENING DEVICE - OFFICERS ARE ENTITLED TO RELY ON INFORMATION PROVIDED BY WITNESSES

In Ms. Greeley’s case, the investigating officer arrived on the scene after there had been a single vehicle crash.   The police officer spoke to Ms. Greeley about the crash which, given the extent of damage to the pole and the vehicle, was characterized as serious.  The officer noted that no alcohol was present in the vehicle.  The officer did not notice a smell of alcohol on Ms. Greeley and was prepared to allow her to leave the scene. However,  the two witnesses who were first on the scene, prior to the officer arriving, asked the officer about a roadside demand for a breath sample based on their having noticed the smell of alcohol when they opened the door beside Ms. Greeley. The officer made an approved screening device demand, and Ms. Greeley was eventually convicted at trial, with the trial judge stating:

[The officer] also knew that there was no alcohol of any sort open or broken in the car.  If these people who had an opportunity to come into first contact collectively smelled alcohol at the opening of the car door given the fact that there were no other passengers, where did the smell come from? R. v. Greeley, 2016 NLCA 30

The case cites an important line from the Supreme Court of Canada’s R. v. Bernshaw case from over 20 years ago: The roadside screening test is a convenient tool for confirming or rejecting a suspicion regarding the commission of an alcohol-related driving offence under s. 253 of the Code. 

SECTION 254(5) - REFUSAL - BODY CAMERA EVIDENCE USED

Ms. Rowe was charged with, and convicted at trial of, failing to provide a breath sample pursuant to s 254(5) of the Criminal Code. She attempted to blow into a roadside screening device six times. All attempts were unsuccessful. Her application for permission to appeal was dismissed by the Alberta Court of Appeal.  It is interesting to note that much of the interaction was recorded by the investigating officer’s body camera:

Between the third and fourth attempts, the officer tested the device: he turned it off, inserted a fresh straw, turned the device back on, provided a sample himself, then inserted a new straw for the applicant to use. The officer’s body camera recorded his test sample, as well as the applicant’s second through sixth attempts to blow into the device. During the recording, the applicant volunteered, “I do this with my blow tests for fire – fire team all the time”. The trial judge viewed the recording. R. v. Rowe, 2016 ABCA 206

SENTENCE - REFUSAL AFTER HAVING CAUSED A COLLISION RESULTING IN DEATH

The offences of refusal after having caused a collision resulting in bodily harm or death, sections 255 (2.2) and (3.3), came into force in 2008.  Since then, courts have struggled to arrive at what appropriate sentences might be. A main factor is that the refusal did not "cause" the collision, unlike impaired operation "causing" death. Two cases may assist in setting precedents for these relatively new offences.   In R. v. Suter, 2016 ABCA 235, the Alberta Court of Appeal allowed the Crown appeal of a 4 month jail sentence and replaced it with a 26 month jail sentence. In R. v. Nahnybida, 2016 SKQB 245, the trial judge imposed a sentence of 40 months jail for the offence of dangerous driving causing death but also imposed a 40 month concurrent sentence for the refusal contrary to section 255(3.3), which arose out of the same incident. A quote from that case provides guidance:

The inclusion of the offence in the Criminal Code of refusal to provide a breath sample following an accident that has caused death is meant to remove the incentive for a person to refuse to provide a breath sample in order to deprive the police, the court, and the public from the best available evidence to answer the question as to what the blood alcohol content of that person was. Any sentence imposed must recognize this purpose.

SECTION 8 - VEHICLE SEARCHES

The Ontario Court of Appeal recently reviewed the areas of detention, searching for officer safety, arrest, search incident to arrest and motor vehicle inventory searches.  In each case, a firearm was found after a vehicle search.  In R. v. Dunkley, 2016 ONCA 597 the Court found a Charter breach, excluded the firearm evidence and acquitted the accused.  In R. v. Ellis, 2016 ONCA 598 the Court concluded there was no Charter breach and upheld the accused’s conviction.  Although these are not impaired driving cases, they do provide officers with a general review of the above areas of law which are relevant with respect to detaining impaired drivers and also relevant to the issue of how far an officer can go in searching a vehicle pursuant to an impaired driving investigation.  Of course, provincial Highway Traffic Act / Traffic Safety Act legislation differs from province to province so officers have to be aware of the search powers available under each province’s legislation as well.

STANDARD FIELD SOBRIETY TEST OFFICERS DO NOT NEED TO BE QUALIFIED AS EXPERTS

Ms. Parada’s appeal reviewed the issue of whether the evidence of a peace officer relating to standard field sobriety tests constitutes expert opinion evidence necessitating a Mohan voir dire (see R. v. Mohan, 1994 CanLII 80 (SCC).  The Saskatchewan Court of Appeal’s decision concluded that the peace officer’s evidence is not expert evidence that requires a Mohan voir dire: R. v. Parada, 2016 SKCA 102.  For more details, the trial judgment link is here: R. v. Parada, 2014 SKPC 116, and the summary conviction judgment link is here: R. v. Parada, 2015 SKQB 380.