SUPREME COURT OF CANADA - R. v. SPENCER

Although this is not a driving case, the case does reinforce the importance of police "acting by what they reasonably thought were lawful means to pursue an important law enforcement purpose."  Reviewing the record at trial, the Supreme Court concluded that Mr. Spencer's s. 8 Charter right to be secure against unreasonable search and seizure was breached. However, with the reasonableness of the investigating officer's conduct being one of the factors analyzed, the Supreme Court concluded that the evidence obtained should not be excluded and upheld its admission. R. v. Spencer, 2014 SCC 43

The case uses this an example: "if the trial judge and three judges of the Court of Appeal concluded that the officer had acted lawfully, his belief was clearly reasonable."

COLLISION - REASONABLE GROUNDS, RIGHT TO COUNSEL, SAMPLES OUTSIDE TWO HOURS, CAUSATION

Officers arriving at the scene of a fatal collision have to deal with a number of issues.  The officer in this case was confronted with every one of them:  were there enough grounds for an ASD demand, was there a proper breath demand, did the officer comply with Mr. Flight's right to counsel, were the samples that were obtained over two hours after the collision admissible and did impairment actually cause the collision.  The trial judge concluded that those issues had all been handled well and the accused was convicted of impaired causing. That finding was upheld by the Alberta Court of Appeal.  R. v. Flight, 2014 ABCA 185

SECTIONS 7 AND 15 - PROSECUTORIAL DISCRETION AND THE EFFECT OF AN OFFENDER'S ABORIGINAL STATUS ON MANDATORY MINIMUM SENTENCES FOR IMPAIRED DRIVING

Mr. Anderson was convicted of impaired driving. The offense of impaired driving carries with it a minimum sentence of 30 days’ imprisonment for a second offence and 120 days’ imprisonment for a subsequent offence. These mandatory minimum sentences apply only if the Crown notifies the accused of its intention to seek a greater punishment prior to any plea. Crown counsel served a Notice of intent to seek greater punishment by reason of the accused’s four previous impaired driving convictions. The trial judge held that Crown counsel breached section 7 of the Charter by tendering the Notice without considering the accused’s Aboriginal status. The accused was sentenced to a 90‑day intermittent sentence. The Court of Appeal dismissed an appeal from sentence. The Supreme Court of Canada held that the appeal should be allowed and a term of imprisonment of 120 days should be substituted, with service of the remainder of the sentence stayed in accordance with the concession of the Crown:

Crown prosecutors are under no constitutional duty to consider the accused’s Aboriginal status when tendering the Notice.  As a matter of prosecutorial discretion, the decision is only reviewable for abuse of process. Apart from the sheer volume of decisions that would be opened up for review, the Crown’s decision to seek the mandatory minimum penalty is a matter of prosecutorial discretion. There has been a long-standing and deeply engrained reluctance to permit routine judicial review of the exercise of that discretion. R. v. Anderson, 2014 SCC 41  (See February 3, 2013 blog entry for a review of the Newfoundland and Labrador Court of Appeal decision)

SECTION 9 - NOT EVERY INTERACTION BETWEEN THE POLICE AND MEMBERS OF THE PUBLIC CONSTITUTES A DETENTION

At Mr. Papilion's trial the main investigating officer testified that Warman, Saskatchewan was having problems with vandalism and break and enters into vehicles around the park. The officer decided to pursue a vehicle he saw close to the park, but he did not see it as he turned onto a side street. As he proceeded down the street he came across a parked Ford Explorer with the lights off. He believed it to be the same vehicle he had just seen. As he drove by, he noticed that the driver’s seat was reclined and saw a head “bob” up and down in the driver’s window. The trial judge held that the driver, Mr. Papilion, was arbitrarily detained in violation of his s. 9 Charter rights and all evidence of impairment and of blood alcohol concentration was excluded pursuant to s. 24(2) of the Charter and Mr. Papilion was acquitted. The summary conviction appeal by the Crown was successful and that appeal was upheld by the Saskatchewan Court of Appeal:

The officer did not pull over Mr. Papilion's vehicle, nor did he engage his police lights. In this case the officer pulled in behind a parked car - he did not block the vehicle's exit path. There is no evidence to suggest that a spotlight was placed on Mr. Papilion or that the officer otherwise indicated that Mr. Papilion was specifically under suspicion. Mr. Papilion was not detained at the point that the officer parked his vehicle behind Mr. Papilion's vehicle. The detention took place no earlier than at the point the officer presented himself at the window of the Explorer and began asking questions.  A reasonable person at that point would not have felt that they were free to leave. R v Papilion, 2014 SKCA 45

AS SOON AS PRACTICABLE - A 28 MINUTE GAP BETWEEN THE FIRST AND SECOND BREATH SAMPLES ALLOWED

Ms. Singh was convicted at trial but her summary conviction appeal was allowed, due to a 28 minute delay between her first and second breath sample.  The Ontario Court of Appeal allowed the Crown's appeal and restored her conviction:

The requirement that the samples be taken “as soon as practicable” does not mean “as soon as possible”. It means nothing more than that the tests should be administered within a reasonably prompt time in the overall circumstances. A trial judge should look at the whole chain of events, keeping in mind that the Criminal Code permits an outside limit of two hours from the time of the offence to the taking of the first test. The "as soon as practicable" requirement must be applied with reason. It is worth repeating that the Crown is not required to call evidence to provide a detailed explanation of what occurred during every minute that the accused is in custody. These provisions of the Criminal Code were enacted to expedite the trial process by facilitating the introduction of reliable evidence to prove an accused’s blood-alcohol level. Interpreting these provisions to require an exact accounting of every moment in the chronology from the time of the offence to the second test runs counter to their purpose. The touchstone for determining whether the tests were taken as soon as practicable is whether the police acted reasonably. R. v. Singh, 2014 ONCA 293