QUALIFIED TECHNICIAN - TESTIMONY

Officers are not called to testify as a "qualified technician" very often.  If you are going to be called to testify in that capacity, you would do well to read these decisions.  

Mr. Lange was convicted at trial but was successful at his summary conviction appeal.  The court concluded that the officer who was called to testify as a qualified technician testified that he was qualified by "the National Breath Tech Co-ordinator, from the Winnipeg Lab".  The officer did not testify that it was the Attorney General or the Solicitor General or the Deputy of either of them who had designated him as a qualified technician as required by s. 254(1). The summary conviction appeal court entered an acquittal. R. v. Lange, 2015 SKQB 15

The Crown successfully appealed that decision: The certificate is evidence of his status as a qualified technician “in the absence of any evidence to the contrary.” There is a difference between proving the officer’s knowledge of the designation process and proving the designation itself. All the officer’s testimony showed is that either he did not understand the question or that he did not understand how the process works. In short, the appeal court judge erred by finding that the officer’s testimony amounted to evidence to the contrary that he was a qualified technician. R. v. Lange, 2016 SKCA 70

COLLISION - USE OF HOSPITAL RECORDS AT TRIAL REVIEWED

Mr. Hatchard was convicted of impaired driving (and dangerous driving) causing bodily harm. He appealed and one of the grounds of appeal was how Mr. Hatchard's hospital records, which showed levels of methadone and diazepam in his blood, were admitted and used at the trial.  The British Columbia Court of Appeal held that the records were properly admitted and upheld the convictions. R. v. Hatchard, 2016 BCCA 134

IMPAIRED BY "A DRUG" - MARIHUANA

The potential legalization of marihuana has resulted in discussion about new ways to investigate whether an driver’s ability to operate a motor vehicle is impaired by the drug:

Pot breathalyzer quest ramps up as legalization looms - May 22, 2016

Marihuana breathalyzers being developed as Canada looks to legalize pot - April 20, 2016

Ministers to examine impaired driving implications of marihuana legalization - May 25, 2016

SECTION 8 - SUPREME COURT OF CANADA - PROCESS FOR CHALLENGING BREATH DEMANDS

The British Columbia Court of Appeal has confirmed that an accused who wishes to the challenge the legality of a breathalyzer (using the wording from the Supreme Court of Canada's R. v. Rilling decision from 1975) anaylsis certificate at trial must assert a challenge under section 8 of the Charter before or at the time the certificate is tendered into evidence by the Crown. This decision is similar to decisions from (some) other provinces. In upholding Mr. Alex's conviction for exceeding .08 the court stated that the process is governed by Rilling unless and until the Supreme Court of Canada sees fit to overrule it. R. v. Alex, 2015 BCCA 435

And the Supreme Court of Canada has taken up that challenge as they have recently granted Mr. Alex leave to appeal: Alex v. R., 2016 CanLII 13733 (SCC) 

REFUSAL - SUPREME COURT OF CANADA - "CONSTRUCTIVE REFUSAL"

An RCMP officer stopped a car being driven by Mr. Candido. The officer began speaking to Mr. Candido and smelled alcohol from Mr. Candido’s breath. Mr. Candido was asked to come to the police vehicle and blow into an ASD. Mr. Candido insisted he was following the instructions, but he failed to provide a breath sample six times, at which point the officer concluded that Mr. Candido was trying to deceive the machine and arrested him for failing to provide a breath sample. He was convicted at trial, where the trial judge stated:

This is a case of constructive refusal because apparently throughout Mr. Candido indicated he was trying his best and wanted to blow, but after six attempts it was given up, and he was -- he was charged with a refuse to provide samples in a screening device.

His conviction was upheld after a summary conviction appeal, and his appeal of that decision was dismissed, R. v. Candido, 2015 SKCA 104. He sought leave to appeal to the Supreme Court of Canada but that application was also dismissed, Candido v. R., 2016 CanLII 13736

It is interesting to note that the Court of Appeal said he was "asked" to come to the police vehicle and blow.  Officers on the roadside need to remember that they are not "asking" for a breath sample - it is a "demand" for a breath sample.  It is also interesting to note that Mr. Candido did not have a prior criminal record, so his sentence at the end of all the proceedings was the minimum: a $1000 fine and a one-year driving prohibition.