EVIDENCE TO THE CONTRARY - COURT REJECTS "EXTERNAL PRINTER" ARGUMENT

Counsel for Mr. Sergalis argued at trial that the use of an external printer for the Intoxilyzer in question had the potential to render the printout of Mr. Sergalis’s blood alcohol concentrations inaccurate. The attempt to use that to show “that the instrument was malfunctioning or was operated improperly” was rejected by both the trial judge and the Ontario Court of Appeal:

In this case, the intoxilyzer results were printed to an external printer.  The technician therefore did not check whether the intoxilyzer’s internal printer was operating properly before conducting the test, as required where an internal printer is used.  The technician did not check the external printer before operating the intoxilyzer, but testified that the external printer functioned properly. The trial judge was satisfied that the intoxilyzer was in proper working order and that the external printer accurately recorded the appellant’s readings and the Summary Conviction Appeal Court judge upheld his decision.  We see no basis for interfering with the Summary Conviction Appeal Court judge’s decision. R. v. Sergalis, 2014 ONCA 624

SECTION 8 - USE OF PRODUCTION ORDER TO OBTAIN HOSPITAL RECORDS REVIEWED

An Edmonton Police Service officer applied for an order requiring the production of the hospital’s emergency medical records including records of the analysis done of Mr. Fedossenko’s blood by the hospital. He had been involved in a single vehicle accident and was eventually charged but was acquitted at trial.  The trial judge concluded that a production order may be granted only where there are reasonable grounds to believe that an offence had been committed.  A majority of the Alberta Court of Appeal disagreed and ordered a new trial:

Under the circumstances here, the police were not required to show reasonable and probable grounds to believe the offence was in fact committed in order to meet the requirement in s 487.012(3)(a) of the Code. The purpose of the production order was to verify the reasonable suspicion that the offence was committed. Moreover, in the circumstances of this case, it is clear that this was not an attempt by the police to circumvent their duties or to otherwise cure an earlier failed attempt to obtain similar evidence but in a different fashion. The tests are simply different. R. v. Fedossenko, 2014 ABCA 314

IDENTITY, REASONABLE GROUNDS, AS SOON AS PRACTICABLE

This case dealt with a number of issues on appeal:

Identity - Was proven at trial.  Although the civilian witness did not pick the accused out at Court, he did testify that he told the main investigating officer that the accused was "the guy" who had been driving the suspect vehicle.

Reasonable Grounds - The standard of "reasonable grounds to believe" simply requires the trial judge to determine whether the officer had a subjective belief of impairment and whether the factors articulated by the officer for such belief were reliable and capable of objectively supporting that belief on all the evidence.

As soon as practicable - A time of 13 minutes between the officer arriving at the scene and making the formal breath demand was reasonable. The officer had to make observations and investigate the issue of who had been driving the suspect vehicle.  R. v. Racine, 2014 SKCA 73

REASONABLE GROUNDS - THE LAWFULNESS OF A DEMAND MUST BE DETERMINED AT THE TIME OF THE DEMAND

Mr. Rezansoff was convicted at trial for refusal to provide a breath sample. His appeal was allowed and an acquittal was entered.  The Crown appealed to the Saskatchewan Court of Appeal.  They actually did not agree with either of the earlier judgments, and gave their own interpretation of how demands for breath samples are to be conducted:

In our view, the summary conviction appeal judge erred in law by conflating the lawfulness of the arrest and the lawfulness of the demand.  The lawfulness of the demand must be determined at the time of the demand and the lawfulness of the arrest must be determined at the time of the arrest.  Driving while impaired and refusing a breath sample are two separate offences.  One does not necessarily follow the other.  Neither the trial judge nor the summary conviction appeal judge directed their minds to the lawfulness of the demand as a component of a distinct offence. A plain reading of s. 254(3) suggests the precise point at which a peace officer must have reasonable grounds to believe a person is committing or, at any time within the three preceding hours, has committed an offence under s. 253 as a result of the consumption of alcohol does not matter as long as the peace officer has the reasonable grounds to believe at the time of making the demand. R. v. Rezansoff, 2014 SKCA 80

SENTENCE - 90 DAY INTERMITTENT JAIL SENTENCE FOR IMPAIRED CAUSING BODILY HARM UPHELD DUE TO UNIQUE CIRCUMSTANCES

Mr. Dawad lost control of the vehicle he was driving, leading to a collision that occurred in 2010. Police obtained a search warrant for his blood which had been drawn at the hospital. It revealed a blood alcohol content of 128 mg%. Of particular significance is the fact that Mr. Dawad’s 11 year old cousin, a passenger in Mr. Dawad's vehicle during the collision, was left severely brain injured and in a permanent vegetative state. Mr. Dawad pleaded guilty (in 2013) to impaired driving causing bodily harm and was sentenced to a 90 day intermittent jail sentence, followed by two years probation and a three year driving prohibition.  The Crown's appeal of that sentence was dismissed:

In our view, the principle of proportionality reflecting the moral blameworthiness of the Respondent would, in most cases, support the Crown’s contention that a sentence in the 15 months to 18 months range is appropriate. We are bound, however, to take into account that the passage of time from December 25, 2010 to sentencing on August 1, 2013 revealed a very different person to that who committed the offence. Indeed, at the hearing of this appeal, it emerged apparent that he has subsequently abstained from the use of alcohol, successfully completed community service, served the 90 day sentence and maintained employment. R. v. Dawad, 2014 ABCA 240