SECTION 9 - LOCKED UP UNTIL SAFE TO RELEASE

Mr. Hardy applied for a judicial stay of proceedings of his refusal charge or, alternatively, exclusion of the police evidence regarding the refusal to provide a breath sample, because he was detained in custody overnight in the Brandon Correctional Centre. The trial judge dismissed his application and that decision was upheld by the Manitoba Court of Appeal:

There is ample evidence from credible police officers, some of which is corroborated by [the accused’s] own evidence, that [he] was in an emotional and agitated state. That he was belligerent and uncooperative with police. There was evidence of consumption of alcohol and police formed a subjective belief the accused was intoxicated. Section 497(1.1) is not exhaustive and police clearly are to consider the totality of the circumstances related to an accused in assessing whether a public safety justification exists for detaining the accused. Here, as I have said, they were dealing with a highly emotional, uncooperative person they believed to be intoxicated and acting in a manner inconsistent with his own best interests. I can come to no conclusion other than that the police decision to lodge the accused in custody, pursuant to section 497 of [t]he Code, was justifiable. The length of detention was essentially overnight, and I find that it was not an excessive period of time in all the circumstances. There is nothing in the evidence I have accepted as credible, to support a finding that the police exercise of discretion here was capricious or unjustifiable.

Counsel will find the conclusion about who bears the evidentiary burden useful:

[W]hile a Crown evidential burden may become engaged in the course of a section 9 application, the ultimate burden of proving the breach [on a balance of probabilities] remains on the accused. R. v. Hardy, 2015 MBCA 51

SENTENCE - 6 YEAR JAIL SENTENCE AND 10 YEAR DRIVING BAN FOR IMPAIRED CAUSING DEATH CONVICTION UPHELD

Mr. York crossed the centre line and was driving on the wrong side of the road, travelling westbound in an eastbound lane. He directly collided with the victim, who was driving a motorcycle. Mr. York walked away from the scene, although the victim was in considerable distress. When police arrived Mr. York continued to walk away until he was apprehended. Police noticed he had red, glazed eyes and his breath smelled of alcohol. He was arrested for impaired driving and his blood alcohol reading was 240 milligrams of alcohol per 100 millilitres of blood. He was convicted of impaired driving causing death and was sentenced to six years in jail and a ten-year driving ban. Mr. York appealed the sentence, submitting that the appropriate sentence was between four and five years. The Alberta Court of Appeal dismissed his appeal and upheld the sentence and driving ban:

The sentencing judge took all the relevant factors into account and imposed a proportional sentence. Sentences for impaired driving causing death have increased in recent years, commensurate with legislative changes and society’s need to deter and denunciate the senseless loss of life on Canadian roads. In cases where the offender has a prior related record and/or high blood alcohol levels, proportionality demands a higher sentence. R. v. York, 2015 ABCA 129

SENTENCE - 120 DAY JAIL SENTENCE FOR OFFENDER WITH LENGTHY RECORD UPHELD DUE, IN PART, TO REHABILITATION EFFORTS

Mr. Fleisher's record at the time his sentence was imposed consisted of fourteen convictions for driving offences for which he received fines (some accompanied by probation), five jail terms and one conditional sentence. The lengthiest prison term he received was 18 months. In April 2014 he was sentenced for one count of driving while disqualified, two counts of impaired driving, two counts of refusing to comply with a breath sample demand and one count of breaching a probation order by not keeping the peace and not being of good behaviour. The Crown sought a five to six year jail sentence. The offences dated back to 2010 and between 2010 and 2014 Mr. Fleischer enrolled in and completed a number of addiction treatment programs.  "The sentencing judge found that Respondent was rehabilitated and thus concluded that a federal sentence of incarceration would be inappropriate and could even have a negative impact on the rehabilitation efforts of other offenders" and a 120 day minimum jail sentence was imposed, followed by a 3 year probation order and a lifetime driving ban. The Quebec Court of Appeal dismissed the Crown's sentence appeal and upheld the sentence:

After a life of alcohol abuse and a lengthy record of driving offences related to that abuse, the Respondent, at the age of 61, took control of his life to struggle to overcome or at least control, with apparent success, his alcohol addiction. He also recognized by community volunteerism the societal problem of drinking and driving and demonstrated his commitment to contributing to the eradication of that problem. In the very exceptional circumstances of this case, it cannot be said, in my opinion, that there is an error in the weight that the sentencing judge chose to give to that aspect of the sentencing equation. The sentence is not unreasonable nor patently or demonstratively unfit. R. v. Fleisher, 2015 QCCA 642

AS SOON AS PRACTICABLE - 62 MINUTES BETWEEN BREATH DEMAND AND FIRST BREATH SAMPLE NOT REASONABLE

A conviction that was entered by the summary conviction appeal court (R. v. Burwell, 2013 SKQB 20) was set aside and a new trial was ordered (the first trial was R. v. Burwell, 2012 SKPC 114) when the Saskatchewan Court of Appeal concluded that the breath samples were not obtained as soon as practicable:

The officer arrested Mr. Burwell in the Town of Asquith at 12:03 a.m. and at 12:04 a.m. demanded a sample of his breath for the purposes of analysis by an approved breath analysis instrument. The officer then determined that the nearest approved instrument, which was at the RCMP detachment in the Town of Delisle, was not accessible because the Delisle detachment was locked, no staff was on call, and he did not have an entrance key. At 12:09 a.m., the officer undertook to transport Mr. Burwell to the RCMP detachment in Saskatoon where an approved instrument was available. Upon their arrival at the Saskatoon detachment at 12:43 a.m., the officer discovered its approved instrument had not been serviced and was not immediately operational for testing breath samples. Being a qualified technician, he completed appropriate maintenance steps required to make the instrument operational and then obtained a sample of the appellant’s breath at 1:06 a.m. and a second sample at 1:27 a.m. R. v. Burwell, 2015 SKCA 37

AS SOON AS PRACTICABLE - A 30 MINUTE PHONE CALL BY SUSPECT TO HIS MOTHER RESULTS IN ACQUITTAL

In a very specific fact situation, the court concluded that the breath tests were not administered as soon as practicable when the investigating officer facilitated a 30 minute call by the suspect to his mother prior to obtaining the breath samples:

At 4:30 am the Intoxilyzer machine was ready but the officer facilitated a telephone call between Mr. Crewson and his mother.  The trial judge found that Mr. Crewson had merely asked that the police call his mother, but that the police went further by actually facilitating the call.  Between 4:40 am and 5:10 am Mr. Crewson spoke to his mother. In essence, the Crown’s position is that there was nothing unreasonable about the police allowing Mr. Crewson to speak to his mother for 30 minutes.  I respectfully disagree.  The onus on the Crown under s. 258(1)(c)(ii) of the Code is a high one.  The Crown is required to prove that the samples were taken “as soon as practicable” beyond a reasonable doubt. R. v. Crewson, 2014 ONSC 4311 The Crown's application for leave to appeal was denied:

We stress that neither the trial judge, nor the Summary Conviction Appeal Court purported to hold that any delay associated with allowing a detainee to contact a parent would run afoul of the “as soon as practicable” requirement.  Instead, the trial judge and Summary Conviction Appeal Court looked at the totality of the circumstances in the context of the “as soon as practicable” requirement in deciding whether the officer acted reasonably. R. v. Crewson, 2015 ONCA 264