CARE OR CONTROL - "SLEEPING IT OFF UNTIL SOBER" CONVICTION UPHELD

Mr. O’Neill testified that after a night of drinking he was driven back to his truck by friends and went to sleep in the driver’s seat of the truck with the intention of sleeping it off until he was sober. He testified that his plan was to get up the next morning and “go have a coffee and some, ah you know a bagel or whatever, my usual routine” and to drive to his work site. He was convicted of impaired/over 80 while in care or control and his conviction was upheld:

As the Supreme Court observed in Boudreault, at para. 41, the intention to set the vehicle in motion “suffices in itself to create the risk of danger contemplated by the offence of care or control.” R. v. O’Neill, 2016 ONCA 307

SECTIONS 8 AND 9 - ARE PASSENGERS DETAINED?

Mr. Mooiman was a passenger in a vehicle that had been stopped by police on a rural road. The driver was taken back to the police car for questioning. The officer then returned to the truck to speak with Mr. Mooiman. In the course of this, the officer informed Mr. Mooiman that he had a sniffer dog that he intended to deploy, querying whether, if he did so, the dog would indicate the presence of narcotics. Whereupon Mr. Mooiman gave the constable a plastic bag containing marihuana. When the constable asked, Mr. Mooiman said that the driver knew of this marihuana. The constable then arrested Mr. Mooiman and the driver for possession of a controlled substance. They were convicted at trial but appealed, arguing an unreasonable search and unlawful detention. Their appeals were dismissed:

Only the driver of a vehicle is necessarily detained by a traffic-safety stop. In the absence of some other suggestion of significant physical or psychological restraint, a passenger of a vehicle that is subject to a traffic-safety stop is simply a bystander and is not detained for the purposes of s. 9 of the Charter. The police may engage in the preliminary questioning of bystanders without giving rise to a detention under ss. 9 and 10 of the Charter. True, the effect of stopping a vehicle and detaining the driver may impair the passenger’s ability to proceed further, but—all other things being neutral—nothing about a routine traffic-safety stop prevents a passenger of the vehicle from simply walking away. Similarly, absent a legal requirement under The Traffic Safety Act, the fact a passenger in a vehicle is necessarily caught up by a traffic-safety stop does not thereby legally compel or obligate the passenger to comply with the investigating police officer’s requests for information or assistance. Despite a police officer’s request for a bystander’s cooperation in answering the officer’s questions or in providing assistance to the officer, a bystander is under no legal obligation to comply with that request. R. v. Mooiman and Zahar, 2016 SKCA 43

SENTENCE - IMPAIRED CAUSING

A 90 day intermittent jail sentence, followed by a 2 year probation order, for an impaired causing bodily harm case has been upheld by the Alberta Court of Appeal.  The Crown had appealed, asking for 12 to 18 months jail. R. v. Rossi, 2016 ABCA 43

A 9 1/2 year jail sentence, for a manslaughter and impaired causing death case, has been upheld by the Saskatchewan Court of Appeal.  The defence had appealed, asking for an 8 year jail sentence. R. v. Taypotat, 2016 SKCA 54

SECTION 8 - SENSING DIAGNOSTIC MODULE SEARCHES

Not surprisingly, impaired drivers can cause collisions.  And those collisions often result in bodily harm or death. Thorough investigations of such collisions are vital, including trying to examine an event data recorder or a sensing diagnostic module ("SDM"). The steps the officers took to search an SDM in a dangerous driving causing death case (where all three occupants of the vehicle had been drinking) included seizing Mr. Fedan's vehicle pursuant to section 489(2) of the Criminal Code, then obtaining a search warrant for the forensic examination of the interior of the vehicle.  The evidence was ruled admissible at trial and that ruling was confirmed on appeal:

In the context of this case and the totality of the circumstances, I find Mr. Fedan did not have a reasonable expectation of privacy in the SDM and its data. His territorial privacy interest in the device was extinguished by the lawful seizure of the vehicle and he had no informational privacy interest in the SDM data as it contained no personal information linking him to the operation of the vehicle at the material time. Accordingly, I find no error in the judge’s finding that his s. 8 Charter right was not violated and in the admission of this evidence in the trial proper. R. v. Fedan, 2016 BCCA 26

SECTION 8 - INVENTORY SEARCHES

A police decision to call a tow truck to remove a vehicle does not justify an inventory search in every case:

The officer stopped a vehicle and found the driver, Mr. Harflett, had a suspended driver's licence due to unpaid fines. Mr. Harflett could not drive his car since his licence was suspended. The officer called a tow truck because the car had to be removed from the highway for safety reasons. His plan was to have the car towed to a nearby hotel, with Mr. Harflett riding with the tow truck operator. Mr. Harflett would then be in a position to pay the fines the next day, have his licence restored, and continue on his way. As was his invariable practice, the constable performed an inventory search of the appellant’s vehicle. He testified that when he opened the trunk, he smelled the odour of raw marijuana, and discovered a large quantity of the drug. Drug charges were laid, there was a conviction at trial but an outright acquittal entered on appeal:

The officer had no statutory obligation to take custody of the car and store it in a suitable place, nor was that power necessarily incidental to the officer’s common law powers in this instance, where the necessary degree of the officer’s control was more limited than in Nicolosi. Here the officer did not impound the vehicle or exercise the degree of control of the vehicle that would have made an inventory search necessary. The officer’s common law authority was limited by the real exigencies of the situation. His duty obliged him to get the car off the highway for safety reasons. There was no reasonable basis for the officer to go on to undertake an inventory search of the car. Accordingly, the officer’s decision to inventory search the car was unreasonable and breached the appellant’s s. 8 Charter right against an unreasonable search. R. v. Harflett, 2016 ONCA 248