BLOOD WARRANTS & EXPERT EVIDENCE

What do you do when you have a suspected impaired driver who is taken to the hospital from the collision scene? Try to obtain a warrant to seize any blood samples that may have been taken from the suspect while at the hospital. And try to obtain the hospital records that show what the hospital's analysis was of those samples. The steps the officer took to do that in Mr. Skorlatowski's case are detailed in the Provincial Court decision. R. v. Skorlatowski, 2014 SKPC 107

But then what do you do if it turns out the blood samples were taken more than two hours after the time of driving? Call an alcohol expert as a witness if there is a trial.  The steps for admissibility of that type of testimony are explained in the Court of Appeal's review of Mr. Skorlatowski's case. R. v. Skorlatowski, 2016 SKCA 5

SENTENCE - 10 YEARS JAIL FOR IMPAIRED CAUSING 4 DEATHS AND 2 INJURIES

More than thirty years ago, the Court of Appeal for Ontario declared that members of the public who travel the roadways of the province should not live in fear that they may meet with a driver whose faculties are impaired by alcohol. But, as this case so tragically illustrates, the message that every drinking driver is a potential killer of innocent members of the community continues to go unheeded. R. v. Muzzo, 2016 ONSC 2068

SECTION 10(B) - MORE RIGHT TO COUNSEL CASES

Courts have always maintained that police officers have to wait a "reasonable" amount of time for counsel of choice to call back. There is no "magic number" for what a reasonable amount of time is. Similar facts can lead to different results:

Mr. Vernon and the arresting officer arrived at the police station at 7:23 p.m on a long weekend Sunday evening.  At 7:30 p.m., the officer called private counsel and left a message on the answering service at his office.  A minute later, at 7:31 p.m., the officer called duty counsel and left a message.  Duty counsel called back at 7:44 p.m.  Mr. Vernon was then advised by the officer that his lawyer had not called back and was offered an opportunity to speak with duty counsel, who was on the phone.  He accepted the offer and spoke with duty counsel from 7:45 p.m. to 7:57 p.m. The trial court found a breach and excluded the eventual blood alcohol readings. "The officer failed to properly inform Mr. Vernon that he had a right to wait a reasonable amount of time for his counsel of choice to call before providing the breath sample.  He further failed to wait a reasonable amount of time for counsel of choice to call back before contacting duty counsel." The Crown's appeal was dismissed, R. v. Vernon, 2015 ONSC 3943, and leave to appeal that decision has been denied, R. v. Vernon, 2016 ONCA 211

Mr. Wilson and the arresting officer left a message with private counsel just after 4:00 a.m. A message to call back was also left with duty counsel. At about 4:27 a.m. duty counsel returned the call. The officer entered the breath room and told Mr Wilson "obviously [private counsel's] not gonna return the call. Duty counsel has called back. He’s now on the phone. He’s been given your details and he awaits you in the room if you wish to speak to him. You’re being given the opportunity to speak to him." Mr. Wilson said "Sure. Why not?" and the officer said "Okay. Come out sir." The trial court did not find a breach and the eventual breath results were admitted. R. v. Wilson, 2016 ONCJ 25

SECTION 10(B) - RIGHT TO COUNSEL CASES

A number of right to counsel cases have been released recently, and reading each of the cases is encouraged. A brief summary of each case reveals:

An officer asking "Do you wish to call a lawyer now?" and receiving the response "No, not right now" was not a Charter breach.  Leave to appeal dismissed by the Supreme Court of Canada, R. v. Owens, 2016 CANLII 12139. See R. v. Owens, 2015 ONCA 652, October 4, 2015 blog entry for a full review.

An officer reminding an impaired driving suspect who was having difficulty calling a private lawyer at 4:21 a.m. that he he had the option of calling a different lawyer, including Legal Aid, was not a Charter breach.  R. v. Larson, 2015 SKCA 143

An officer asking suspect who he saw was off the detachment phone "if he was done?" and receiving the response "yes" was not a Charter breach. And, even if there was a Charter breach, the exclusion of the evidence was not justified on the record. Any breach was minor, and entirely in good faith. The impact on the suspect’s protected interests were minimal, and there was a strong public interest in prosecuting this violent crime. Note that the last case involved a suspect who was arrested for armed robbery. R. v. Beauregard, 2016 ABCA 37

APPROVED INSTRUMENT MAINTENANCE RECORDS DISCLOSURE

The Alberta Crown Prosecution Service has stayed some exceed .08 charges due to disclosure issues regarding the maintenance records of the devices. Some direction on this issue will be provided in the case of R. v. Vallentgoed, 2015 ABCA 202; 2016 ABCA 19.

This maintenance record issue seems to have been clarified some time ago in Saskatchewan (see R. v. Worden, 2014 SKPC 143) and more recently in Ontario:

"A police officer asked David Jackson to do something. Twice. Nothing complicated. Just blow into a device. So David Jackson did. The first time he failed. Then he talked to a lawyer. The second time, he provided evidence against himself. David Jackson was charged with impaired operation of a motor vehicle and operation of a motor vehicle having consumed alcohol so that the concentration of alcohol in his blood exceeded 80 milligrams of alcohol in 100 millilitres of blood. David Jackson got the usual disclosure provided by the prosecutor in alcohol-driving cases. But David Jackson wanted more. He wanted to find out about the history and performance of the device that measured his blood alcohol concentration. So he asked the trial judge to require the prosecutor to provide the records he sought. The trial judge ordered disclosure. A judge of the Superior Court of Justice refused to quash the trial judge’s order. The police service that maintains the records and the Crown appeal even though the records have been disclosed. These reasons explain why I would allow the appeal and quash the disclosure order." Mr. Justice Watt in R. v. Jackson, 2015 ONCA 832