SUPREME COURT OF CANADA TO REVIEW DRUG RECOGNITION CASE

In February 2008, Parliament enacted Bill C-2 thereby creating a new set of tools for the effective investigation and prosecution of drug-impaired driving.  While the offence of impaired driving has existed for decades, prior to the enactment of Bill C-2, there was no compulsory statutory process to test for impairment by drugs. By enacting Bill C-2, Parliament created a science-based regime for the effective testing and determination of whether a driver’s ability to operate a motor vehicle was impaired by a drug.

Courts of Appeal have analyzed the 2008 amendments (R. v. Fogarty, 2015 NSCA 6, February 1, 2015 blog entry) but for the first time the Supreme Court of Canada has granted leave to appeal regarding a DRE case.  Mr. Bingley was acquitted (twice, actually) at trial but the Crown's appeal was allowed and a new trial ordered (R. v. Bingley, 2014 ONSC 2432).  Mr. Bingley's appeal of that ruling was dismissed (R. v. Bingley, 2015 ONCA 439, July 12, 2015 blog entry) but his application for leave to appeal to the Supreme Court of Canada has been granted (Bingley v. R., 2016 CanLII 3181 (SCC)).

SENTENCE - ACCUSED HAS TO UNDERSTAND ALL POTENTIAL LICENCE SUSPENSIONS

The incident giving rise to the dangerous driving charge against Mr. Quick occurred in December 2009. He pleaded guilty on April 10, 2010. The sentencing judge did not impose any driving suspension under the Criminal Code, however Mr. Quick’s counsel told him that he would lose his driver’s licence for one year under the provincial Highway Traffic Act. Mr. Quick’s counsel, however, had not told him that because he had two previous drinking and driving convictions, his driver’s licence would be suspended indefinitely under the HTA. In an affidavit filed as fresh evidence, Mr. Quick said that had he known his driver’s licence would be suspended indefinitely, he would not have pleaded guilty; he would have asked for a trial. The Ontario Court of Appeal held that Mr. Quick’s guilty plea to dangerous driving was not informed because he was not aware of the indefinite suspension of his driver’s licence that automatically followed under the HTA. Thus, his conviction for dangerous driving gave rise to a miscarriage of justice. The court allowed Mr. Quick’s appeal, set aside his guilty plea and conviction on the dangerous driving charge, and order a new trial. The court also gave this advice to sentencing judges on all driving (including impaired) offences:

I simply observe, that before an accused pleads guilty to a driving offence, a trial judge would be well advised to ensure that the accused understands the nature and length of any licence suspensions. R. v. Quick, 2016 ONCA 95

REFUSAL - GROUNDS FOR DEMAND ARTICULATED WELL; SENTENCE - INCREASED FROM 5 TO 8 YEARS FOR "INVETERATE, CONTUMACIOUS DRIVING OFFENDER"

Mr. Briltz was convicted of 8 offences (3 evade, 3 drive while prohibited, 1 resist arrest and 1 refusal) and was sentenced to a 5 year global sentence.  He appealed his convictions and one of his arguments was that the breath demand was not lawful.  The appeal court dismissed his conviction appeal, focusing on how well the officer testified:

The question before the trial judge here was twofold: (a) whether the officer who had made the breath demand had held a subjective belief that Mr. Briltz’s ability to drive was at least slightly impaired by alcohol; and (b) whether the observations articulated by that officer in support of his belief were reasonable and sufficiently sustainable on an objective basis to underpin his demand for a breath sample. Given the overwhelming indicia of impairment spoken to by the officer, the trial judge correctly concluded the breath demand was lawful. 

Mr. Briltz also appealed his 5 year sentence, arguing it was too long.  The Crown also appealed the sentence, arguing it was too short.  The Court allowed the Crown's appeal and increased his sentence to 8 years. R. v. Briltz, 2016 SKCA 2

REASONABLE SUSPICION - IMPAIRED CAUSING CONVICTIONS OVERTURNED AND NEW TRIAL ORDERED

The Alberta Court of Appeal has ordered a new trial in a case where Charter voir dire rulings, which were in initially in favour of Mr. Arens, were later reversed by the court in convicting Mr. Arens. The dissenting judge would have dismissed the appeal and not ordered a new trial.  A scenario that may be useful with respect to forming reasonable suspicion was used in that judgment:

Without the benefit of submissions on the point, I think, as a matter of common sense, an officer’s reasonable grounds to suspect that a person has alcohol or a drug in his/her system may be satisfied by reasonable inferences drawn from other observations. The following scenario provides an illustration. A police officer observes a person walking out of a bar at closing time, staggering and stumbling to a motor vehicle and then driving away erratically before he can be intercepted. Upon stopping the vehicle, the officer observes the driver to have very slurred speech, glassy eyes and poor co-ordination. However, he cannot detect a smell of alcohol, perhaps because the driver is chewing gum and smoking a cigarette. The driver denies he has been drinking. In such circumstances, would the officer not have reasonable grounds to suspect the driver had alcohol in his body? R. v. Arens, 2016 ABCA 20

SENTENCE - SUPREME COURT OF CANADA - R. V. LACASSE

The Supreme Court of Canada has reinstated a 6 1/2 year jail sentence in a case where two passengers were killed by an impaired driver. Mr. Lacasse, who did not have a criminal record, was 20 years old when he was sentenced to 6 1/2 years by the trial judge. He had been convicted of three speeding offences previously. The Quebec Court of Appeal had allowed Mr. Lacasse's sentence appeal and reduced the sentence to 4 years. Many factors were looked at by the Supreme Court, including the fact that the trial judge was correct in taking into account the particular situation in the Beauce region with regard to impaired driving offences. Also:

The increase in the minimum and maximum sentences for impaired driving offences shows that Parliament wanted such offences to be punished more harshly. Despite countless awareness campaigns conducted over the years, impaired driving offences still cause more deaths than any other offences in Canada. R. v. Lacasse, 2015 SCC 64