DEFENCES - NECESSITY DEFENCE UNSUCCESSFUL

Mr. Millar farmed south of Edmonton. His cattle had escaped from the farm after a long day’s work, followed by drinking and sleep. He was awakened in the night and had no choice but to drive his truck down the road a distance in order to prevent them from walking onto the nearby highway. He had no land line, no cell phone coverage, so no reasonable alternative. He was driving on a low use rural road for a short distance, which would reflect a low degree of risk. However, after the danger was averted, he re-entered the truck and passed out over the steering wheel with the engine running. This is where he was located by the police. He was convicted at trial as the trial judge concluded that the imminent peril had been wholly or mostly eliminated. That conviction was upheld by the summary conviction appeal court but the Alberta Court of Appeal has granted leave to appeal.  R. v. Millar, 2015 ABCA 72

For other similar cases, see:

R. v. Pankiw, 2014 SKQB 381, January 11, 2015 blog entry, and

R. v. Maxie, 2014 SKCA 103, December 14, 2014 blog entry.

SECTION 10(B) - RIGHT TO COUNSEL AT ROADSIDE REVIEWED

Mr. Caswell was convicted of refusing to comply with a demand for a roadside breath sample (see R. v. Caswell, 2014 ABPC 55). His conviction was affirmed by a judge of the Alberta Court of Queen’s Bench (see R. v. Caswell, 2014 ABQB 640):

The appeal judge concluded the trial judge was correct in finding the applicant’s constitutional right to counsel had not been breached. The appeal judge found the suspension of the right to consult a lawyer when a roadside breath demand is made, so long as the test can be done “forthwith”, is justified by both the societal objective of facilitating the detection and deterrence of impaired driving and by practical operational realities. While cellular technology has improved since the Supreme Court’s decision in R v Thomsen in 1988, the societal objective continues to be relevant. The appeal judge also noted that the Court of Appeal in Mitchell held that the fact it might have been possible to access legal advice in the particular circumstances of a case does not detract from the overall purpose and justification for suspending the right to counsel during roadside sobriety investigations. As the ASD demand was made forthwith and the constable had properly instructed the applicant on the ASD demand, the appeal judge found the applicant had no reasonable excuse for failing to comply with the demand.

The Alberta Court of Appeal has granted leave to appeal the above decision: R. v. Caswell, 2015 ABCA 97

SENTENCE - JOINT SUBMISSION REJECTED AND JAIL SENTENCE INCREASED

22 year old Mr. Gibson was driving south on Highway 22 from Cochrane, intending to go to Calgary.  He pulled out to pass, sideswiped one vehicle, forced a second into the ditch and then collided head-on with a third.  Mr. Gibson killed one person and caused bodily harm to another.  He had no prior record and pleaded guilty.  His BAC was between .170% and .181%. Crown and defence jointly submitted a two year jail sentence to the court. The court was concerned, asked for further submissions, but still rejected the joint submission and imposed a jail sentence of two years and eight months. The Alberta Court of Appeal dismissed the appeal as the sentence jointly submitted was unfit.  The Court actually concluded:

A fit sentence here would be no less than four years. In the circumstances of this case, a two-year sentence for impaired driving causing death is unfit. As a result, the sentencing judge properly rejected the joint submission, instead imposing a sentence of 2 years 8 months. Though this is itself below what we would consider a fit sentence in this case, we dismiss the appeal since the Crown did not give notice of an intention to contend for an increase under our fair notice rule. R. v. Gibson, 2015 ABCA 41

SECTION 10(B) - RIGHT TO COUNSEL - WHAT OFFICERS DO NOT HAVE TO DO

The Saskatchewan Court of Appeal has upheld a conviction where rights to counsel was the issue, as the trial judge found as fact that Mr. Thall agreed with the police officer’s testimony he was advised of his right to counsel. It was clear from this Mr. Thall knew he had the right to counsel and this included the right to legal aid. A portion of the summary conviction appeal (R. v. Thall, 2014 SKQB 234) stated:

In each situation, when asked if he understood, [Mr. Thall] said yes. The officer was entitled to take him at his word. Cst. Ferguson was obliged to comply with the law. He did that. The law does not require peace officers to be mind-readers, babysitters, or advocates for detained persons. The law does not require peace officers to:

Ask a detainee whether they were successful in contacting counsel after being afforded a reasonable opportunity to do so; suggest to a detainee what to do, or what not to do; suggest which lawyer to use or whether to use a private lawyer or legal aid; assume that a detainee cannot think or decide for himself or herself, or give some sort of abnormal interpretation to what a detainee says and does.  R. v. Thall, 2015 SKCA 10

REASONABLE GROUNDS - THE COURT SHOULD NOT FOCUS ON MISSING EVIDENCE

The issue in this case was whether the officer had reasonable grounds for a breath demand. The trial judge held that the police officer did not have reasonable grounds to demand a breath sample from Mr. Schofield under s. 254(3) and the breath sample violated s. 8 of the Charter.  The breathalyzer evidence was excluded and Mr. Schofield was acquitted.  The Crown's appeal was allowed and a new trial was ordered:

The question is - did the “totality of the circumstances” known to the officer at the time of the breath demand rationally support the officer’s belief?  The officer may infer or deduce, draw on experience, and ascribe weights to factors.  Parliament expects the officer to do this on the roadside according to a statutory timeline, while informed by the available circumstances, but without either the benefit of trial processes to test the accuracy of his or her belief or “the luxury of judicial reflection”. The officer must identify the supporting circumstances at the voir dire.  But the officer was not expected to apply the rules of evidence at the roadside.  So the support may be based on hearsay. The supporting connection must be reasonable at the time, but need not be proven correct at the later voir dire that considers s. 254(3). There is no minimum period of investigation, mandatory line of questioning or legally essential technique, such as a roadside screening.  The judge should not focus on missing evidence.  Rather, the judge should consider whether the adduced evidence of circumstances known to the officer reasonably supported the officer’s view. R. v. Schofield, 2015 NSCA 5