SECTION 8 - DOOR KNOCK AT RESIDENCE LEADS TO ACQUITTALS BEING UPHELD

Mr. Rogers' appeal reviewed the powers of the police to knock on the door of a residence for the purpose of securing evidence as to whether the occupant, who was recently seen driving a motor vehicle, is impaired. Mr. Rogers was acquitted at trial and those acquittals were upheld by the Saskatchewan Court of Appeal, primarily based on findings of fact made by the trial judge:

None of these [a long list of case law] authorities, or those mentioned by the Crown, stand for the proposition that when the police are investigating a drinking and driving offence, they may knock on the door of a residence to gather grounds to make a breath demand or otherwise determine whether the driver has been drinking. The critical finding in this appeal, which distinguishes it from others mentioned in these reasons, is that the trial judge found that the police officer knocked on Mr. Rogers’s door “for the purpose of … obtaining evidence against the occupant”. The Crown challenges this finding, but based on the evidence, it appears to be unassailable. R. v. Rogers, 2016 SKCA 105

SECTION 254(3) - ROADSIDE OFFICER "COMPLETELY FORGOT" DEMAND - QUALIFIED TECHNICIAN MAKES DEMAND AT STATION - CONVICTION UPHELD

Mr. Guenter was convicted of three counts of impaired causing bodily harm.  He appealled and one of his grounds of appeal was that the breath test samples should have been excluded because he was not read the breath demand "as soon as practicable". The arresting officer testified she “completely forgot” to read a demand to the appellant at the scene of the collision. She explained the scene was horrific, she was interrupted by paramedics when reading the appellant his rights and caution, and that interruption may have broken her train of thought. However she informed the breath technician of her grounds for arresting the appellant, specifically: the appellant had been involved in a traffic accident; she observed the odour of alcohol on his breath; she observed he was unsteady on his feet, his speech was slurred, and he was unable to keep his head up. The breath tech read the appellant his rights to counsel, caution to a charged person, secondary caution to a charged person, and the breathalyzer test demand. The trial judge held that demand was valid and the Ontario Court of Appeal agreed:

There is no dispute that the breath tech made his demand immediately following his formation of reasonable grounds to do so. Accordingly, his demand was made “as soon as practicable” in accordance with s. 254(3).  It follows that the trial judge did not err in concluding that “the breath samples were lawfully taken and the evidence flowing from their analysis is admissible”. R. v. Guenter, 2016 ONCA 572

SUPREME COURT OF CANADA - DISCLOSURE; SENSING DIAGNOSTIC MODULE SEARCHES

The Supreme Court of Canada has dismissed leave to appeal applications for two cases mentioned in earlier blog postings.  They are not hearing an appeal of the case of R. v. Fedan, 2016 BCCA 26 (see April 24, 2016 blog entry) where the British Columbia Court of Appeal held that an accused had no subjective expectation of privacy in his truck’s sensing diagnostic module (SDM) -  Fedan v. R., 2016 CanLII 44776. They are also not hearing an appeal of the case of R. v. Jackson, 2015 ONCA 832 (see March 13, 2016 blog entry) where the Ontario Court of Appeal quashed a disclosure order that was made regarding breathalyzer service records, usage and calibration records – Jackson v. R., 2016 CanLII 41073.

SUPREME COURT OF CANADA - UNREASONABLE DELAY

The Supreme Court of Canada has, in R. v. Jordan, 2016 SCC 27, created a new framework for analyzing an accused's right to be tried within a reasonable time:

At the heart of this new framework is a presumptive ceiling beyond which delay — from the charge to the actual or anticipated end of trial — is presumed to be unreasonable, unless exceptional circumstances justify it. The presumptive ceiling is 18 months for cases tried in the provincial court, and 30 months for cases in the superior court (or cases tried in the provincial court after a preliminary inquiry). Delay attributable to or waived by the defence does not count towards the presumptive ceiling.

It will be interesting to see how this new framework will affect impaired driving investigations and prosecutions. Will it result in having first appearance dates set earlier? Will the initial disclosure packages have to be more thorough (transcripts? photo binders?).

Previously, one court stayed charges for unreasonable delay due to an exceed .08 trial taking 27 months - R. v. Pankiw, 2016 SKCA 60. However, a different court held that there was no unreasonable delay when an impaired causing bodily harm trial took 34 months - R. v. Smith, 2013 ABCA 312.

Even though the Jordan case is less than a month old, some accused's convicted of impaired driving have already had courts stay their charges due to unreasonable delay : R. v. Korzh, 2016 ONSC 4745 (24 months) and R. v. Allison, 2016 NSSC 192 (60 months).

EVIDENCE TO THE CONTRARY AND ASD DELAY ARGUED - CONVICTION UPHELD

Mr. Rienguette was convicted at trial of driving "over 80" and sentenced to 30 days jail, with a two year driving prohibition.  He sought leave to appeal his conviction, arguing two issues.  The first argument was that a 13 minute delay with respect to an approved screeing device having to be brought to the roadside by another officer was unreasonable. The second argument was that the the approved instrument was malfunctioning or was operated improperly, citing the failure of the breath technician to use a N.I.S.T. thermometer.

The Ontario Court of Appeal dismissed his application for leave to appeal and ordered that Mr. Rienguette had to surrender himself into custody to serve the remainder of his sentence. R. v. Rienguette, 2016 ONCA 450