SECTIONS 8, 10 AND 24(2) - REASONS FOR DETENTION ARE REQUIRED, AND RIGHTS TO COUNSEL/BREATH DEMAND SHOULD NOT BE DELAYED

Mr. Evans was stopped as part of a roving sobriety check-stop. He was eventually charged with impaired driving and driving while over .08. He represented himself at trial and was acquitted. The Court found that a 17 minute delay between his arrest and the reading of the breath demand ran afoul of the “as soon as practicable” requirement found in section 254(3) of the Code. The Court also found that a 14 minute delay between his arrest and the reading of his rights to counsel did not comply with the "without delay" requirement in section 10(b) of the Charter. Lastly, the Court repeated the Supreme Court of Canada's requirement for section 10(a): "At a minimum, individuals who are detained for investigative purposes must therefore be advised, in clear and simple language, of the reasons for the detention.”

The Court gave some guidance: The officer testified that before he had an opportunity to say anything to Mr. Evans after approaching his car, Mr. Evans looked up at him and said “yes”.  At this point, in order to comply with section 10(a) of the Charter, the officer should have told Mr. Evans: “I stopped you because I think you may have been drinking and I want to make sure you are okay to drive” or words to that effect. R. v. Evans, 2015 ONCJ 305

DRINKING AFTER DRIVING, CAUSATION, AND "BURPING" ISSUES ANALYZED

Applications for leave to appeal two different convictions were dismissed by the Supreme Court of Canada this summer. R. v. So (see R. v. So, 2014 ABCA 451, January 18, 2015 blog entry) dealt with "burping" and the proper operation/functioning of the instrument.  R. v. Hinkley (see R. v. Hinkley, 2013 ABCA 207, October 27, 2013 blog entry) dealt with causation in a fatal collision and also post-driving drinking.

APPROVED SCREENING DEVICE - THE DANGER OF "ASSUMING" SOMETHING

In cross-examination at Mr. Ho's trial,  the officer who made the approved screening device demand confirmed that he did not independently “test” the roadside device that had been provided to him by the “rookie”; he simply assumed that it would have been done at the beginning of the shift in the manner that he had done as a matter of “standard practice”. There was an acquittal at trial.  The Crown's appeal was allowed and a conviction was entered (see R. v. Ho, 2014 ONSC 5034) but an appeal to the Ontario Court of Appeal was allowed, the conviction was set aside and a new trial was ordered:

There were circumstances in this particular case that may have led a trial judge to conclude that the officer’s belief was not reasonable.  The officer who the testifying officer relied on to have performed the test was a rookie officer and the officer who testified had no idea whether that officer had undergone the appropriate training.  In that circumstance, we think the reasonableness of the officer’s belief that the proper protocol had been followed would reasonably be viewed as inadequate to provide the necessary grounds for a reasonable belief. R. v. Ho, 2015 ONCA 559

SECTION 8 - USE OF WARRANT TO OBTAIN HOSPITAL BLOOD SAMPLES REVIEWED

Following a double fatality single motor vehicle accident involving a vehicle Mr. Cartwright was driving, a Provincial Court judge issued a warrant, pursuant to which the police obtained blood samples that had been taken from Mr. Cartwright at the hospital on the night of the accident. The trial judge concluded the warrant was properly issued and, overall, the search was a reasonable one. Mr. Cartwright’s motion to quash the warrant was dismissed and he was eventually convicted. He appealed to the New Brunswick Court of Appeal, and the key issue on appeal was the validity of the search warrant. His convictions were upheld, as the Court found that the warrant was valid and the blood analysis evidence was properly admitted, there being no breach of Mr. Cartwright’s Charter rights.  R. v. Cartwright, 2015 NBCA 42

APPROVED INSTRUMENT MAINTENANCE RECORDS DISCLOSURE

The Alberta Court of Appeal has granted leave to appeal a case where disclosure of approved instrument maintenance records is the issue:

Leave is granted to the Crown to appeal to this Court on the following questions of law:

- whether the summary conviction appeal court erred in finding that historical maintenance records of approved instruments are presumptively relevant; and

- whether the maintenance records for an approved instrument unrelated to the accused’s investigation are subject to Stinchcombe disclosure. R. v. Vallentgoed, 2015 ABCA 202

For the summary conviction appeal decision, see R. v. Vallentgoed, 2015 ABQB 206