SECTION 258(3) - YOU CAN INFER IMPAIRMENT FROM REFUSAL, BUT NOT OPERATION

The issue in Mr. Rawn’s trial was the identity of the driver.  The trial judge used, among other things, the inference in s. 258(3),  which permits a court to draw an inference adverse to an accused from his or her failure or refusal to comply with a breathalyzer demand under s. 254. The appeal court confirmed that s. 258(3) allows an inference that someone is impaired, not an inference that they were operating a vehicle:

Like other statutory provisions that permit a court to draw an adverse inference, s. 258(3) does not show its hand to reveal the precise adverse inference it has in mind. The inference, like any inference from circumstantial evidence, must be logical and reasonable, not illogical or speculative. On this basis, the adverse inference permitted by s. 258(3) must be concerned with impairment and an accused’s state of mind on that issue. It is not a reasonable and logical inference from refusal to provide a breath sample that the person who refused was the operator or had the care or control of a motor vehicle. R. v. Rawn, 2015 ONCA 396

DRUG RECOGNITION EXPERTS - A COURT OF APPEAL CONFIRMS THAT THEY ARE EXPERTS

Mr. Bingley’s appeal concerned the admissibility of opinion evidence given by a Drug Recognition Expert (“DRE”) on whether a person’s ability to operate a motor vehicle is impaired by a drug. Mr. Bingley said that such DRE evidence is not admissible.  The Crown said it is. The Ontario Court of Appeal agreed with the Crown:

Based on a plain reading of s. 254(3.1) of the Criminal Code, it is my view that DRE opinion evidence is admissible to prove the offence of drug-impaired driving, without the necessity of a Mohan voir dire, so long as it is established that the witness is a certified DRE as specified in the Regulations. R. v. Bingley, 2015 ONCA 439

APPROVED SCREENING DEVICE - CONVICTION UPHELD - FORTHWITH

The June 20, 2015 blog entry reviewed a case where an acquittal was upheld due a "forthwith" issue.  For a case where a conviction was upheld on appeal regarding a forthwith issue, refer to R. v. Mohamed, 2015 ONCA 335. In that case the court noted that what amounts to a demand being made "forthwith" is not so much a question of law, but instead is "a fact-specific inquiry that, in all likelihood, does not raise a question of law alone." 

APPROVED SCREENING DEVICE AND SECTION 24(2) - ACQUITTAL UPHELD DUE TO WAITING 15 MINUTES

Mr. Lomenda was convicted at trial but his appeal to superior court was allowed and an acquittal was entered. That acquittal was upheld by the Saskatchewan Court of Appeal. The court pointed out that the officer waited 15 minutes to administer the ASD but that was not based on any observations at the scene, rather it appeared that the officer's standard practice was to wait 15 minutes in every case. R. v. Lomenda, 2015 SKCA 40 :

Where, as here, a driver is stopped by a police officer to check his sobriety, registration and driver’s licence, his Charter right pursuant to s. 10(b) of the Charter is engaged, [but] the right to demand that the person detained forthwith provide a breath sample constitutes a reasonable limit on that right. "Forthwith" means "immediately" or "without delay". It is clear that a police officer is entitled to wait 15 minutes if  the delay is reasonable or justified. In particular, the officer can delay if there is evidence which leads him to conclude that the motorist consumed alcohol within that period. It does not follow, however, that it is acceptable to wait 15 minutes in every case. That has been clear since the decision in R. v. Bernshaw, 1995 SCC

SECTIONS 9 AND 10(B) - DETAINING DUE TO NON-RESIDENCY LEADS TO STAYS

A number of drinking and driving charges have been stayed by Ontario courts recently, due to non-residents being held by police for show cause hearings after the impaired investigations were concluded:

In the case at bar . . . there is actual evidence of a systemic problem within the police force as it relates to understanding the longstanding laws relating to release. In reaching this conclusion, I note that firstly, this is not the first case where a non-citizen has been held for a show cause hearing because the police improperly understood s. 498 of the Criminal Code. R. v. Sabatini, 2015 ONCJ 282

See also R. v. Doyon, 2015 ONCJ 122 where a Quebec resident's charges were stayed and R. v. Provo, 2015 ONCJ 311 where a Michigan resident was acquitted due to a s. 10(b) Charter breach because he was not given another opportunity to consult counsel after the decision to hold him was made.