ROADSIDE PROHIBITIONS - SUPREME COURT OF CANADA - R. V. GOODWIN; R. V. WILSON

British Columbia's immediate roadside prohibition laws have been (for the most part) upheld by the Supreme Court of Canada.  The legislation was enacted in 2010. In 2012 the legislation was amended to require officers to give drivers a second chance with a different screening device and to also allow for an administrative review of roadside prohibitions, and those amendments were looked upon favourably by the court.  The Chief Justice of Canada had the following quote in one of the cases:

The ultimate question is whether the review provisions of the roadside suspension scheme offer reasonable protection against abusive exercise of the state power to intrude on the individual’s private sphere, having regard to the nature of the scheme and the privacy interests at stake.  In my view, the answer to this question is yes.

Goodwin v. British Columbia, 2015 SCC 46 and Wilson v. British Columbia, 2015 SCC 47

SECTION 8 - VIDEOTAPING HOLDING CELL TOILETS

Ms. Mok was charged with impaired driving and exceed .08 in 2010.  Her trial started in 2011 and concluded in 2012, when the court entered a judicial stay on her charges.  That decision was appealed and the judicial stay was set aside.  Ms. Mok sought leave to appeal that decision but the Ontario Court of Appeal denied her application:

The stay was originally granted by the trial judge as the remedy in this case based on the evidence that this was not a unique incident. At the time, the York Regional Police viewed and videotaped all prisoners using the toilets in their cells as a matter of policy. However, on this appeal, the court was told that since the decision of the summary conviction appeal judge upholding the finding of a s. 8 breach, steps have been taken by the York Regional Police to ensure that prisoners’ privacy while using the toilet is now protected from both viewing and videotaping. This information confirmed the findings made by a number of other trial courts recently faced with the same issue, who declined to order stays. R. v. Mok, 2015 ONCA 608

SECTION 10(B) - RIGHT TO COUNSEL - "NO, NOT RIGHT NOW" WAS NOT A REQUEST TO CONTACT COUNSEL

The arresting officer asked Mr. Owens: “Do you wish to call a lawyer now?” and Mr. Owens replied: “No, not right now.” The trial judge concluded that Mr. Owens did not invoke his right to consult with counsel. The Ontario Court of Appeal agreed and upheld the conviction for over 80:

In my view, the trial judge’s finding that the respondent did not invoke his right to consult counsel contains no palpable and overriding error that would permit appellate interference. On the facts of this case, it was open to the trial judge to find that the arguably ambiguous statement “No, not right now” did not qualify as an invocation of the right to counsel. The Supreme Court has also made clear that police implementational obligations flowing from s. 10(b) are not absolute. Absent invocation of the right to counsel and reasonable diligence in its exercise by the detainee, police duties to provide a reasonable opportunity to consult counsel and to refrain from soliciting evidence will either not arise in the first place or will be suspended. R. v. Owens, 2015 ONCA 652 

IDENTIFICATION OF THE DRIVER AFTER A CRASH - TRAFFIC SAFETY ACT STATEMENTS

Identifying the driver after a crash has occurred can be problematic.  In Alberta, Criminal Code charges were laid as a result of a fatal collision. The investigation involved a statement from Mr. Porter pursuant to Traffic Safety Act legislation.  The accused was acquitted and that acquittal was upheld by the Alberta Court of Appeal. Officers should always consult your local provincial legislation.  With respect to Alberta, the case reviewed the following issue:

At issue is the use, if any, that can be made of information contained in compulsory accident reports made to police under s 71 of the Traffic Safety Act and compulsory statements made to insurers for insurance purposes following an accident. Can those statements or the information contained in them be admitted in criminal proceedings arising out of the accident? Can the information obtained through those statements be used as part of the reasonable and probable grounds of an informant in an Information to Obtain a Search Warrant or Production Order? R. v. Porter, 2015 ABCA 279

IMPAIRED CAUSING BODILY HARM / EXCEED .08 CAUSING AN ACCIDENT RESULTING IN BODILY HARM

The offences listed above are different.  They have different elements of proof, and officers should know that the wording of the charges is different. The charge below (with the words “and did thereby” deleted during Mr. Koma’s trial) is an example of a properly worded section 255(2.1) charge:

Ryley M. Koma on or about the 15^th day of March in the year 2013 at or near Regina, Saskatchewan did while operating a motor vehicle having consumed alcohol in such quantity that the concentration thereof in his blood exceeded eighty milligrams of alcohol in one hundred millilitres of blood [and did thereby] did cause an accident resulting in bodily harm to Shannon Rodrigue, contrary to section 255 (2.1) of the Criminal Code.

The case also reviews the legal authorities for officers to detain motorists. Counsel will find the case useful concerning the “causation” issue and the issue of applying to amend the wording of a charge mid-trial.  R. v. Koma, 2015 SKCA 92