"FORTHWITH" AND ALSO VEHICLE STOPS ON PRIVATE PROPERTY ANALYZED

It was OK for the police officer to deal with Mr. Anderson on private property for a purely Traffic Safety Act stop because the police officer had formed the intention to stop Mr. Anderson when Mr. Anderson's vehicle was still on a public highway:

To decide otherwise would encourage drivers to seek the sanctuary of private roadways if they suspected they were about to be stopped by police.

It was also OK to wait 16 minutes for the ASD to warm up and become operational as that did not offend the "forthwith" requirement for an ASD sample. Finally, the "clock starts ticking" for "forthwith" not from the time of the initial detention, but rather from the time the officer formed the necessary suspicion:

The so-called “forthwith window,” being the time within which the police officer must require a driver to provide a breath sample, in my view, does not commence prior to the time when a police officer develops a reasonable suspicion that the accused had alcohol in his body, as the trial judge effectively held. Nor does it begin with the ASD demand, as the summary conviction appeal judge held. Rather, it begins when the police officer develops a reasonable suspicion that the accused has alcohol in their body. R. v. Anderson, 2014 SKCA 32

CARE OR CONTROL - CREDIBILITY PLAYS A LARGE ROLE IN DETERMINING "A REALISTIC RISK OF DANGER TO PERSONS OR PROPERTY"

Officers who investigate a "care or control" situation should ensure to make good notes and be prepared to testify - many such charges result in trials as the issues are always very fact specific. This was shown in yet another appeal of a "care or control" acquittal:

Mr. Poncelet was charged with having care or control of a motor vehicle while his ability to drive was impaired by alcohol. He explained to the Provincial Court trial judge that he had known he was intoxicated and had intended, not to drive, but to sleep in his truck until the next day.  He said he had started the truck only because he was cold.  The trial judge acquitted Mr. Poncelet on the basis of an assessment of the risk posed both by the possibility that he would have driven intentionally and by the possibility that he would have put the truck in motion inadvertently. The Saskatchewan Court of Appeal upheld that acquittal:

Importantly, in considering all of this, the trial judge found Mr. Poncelet to be a credible witness and accepted his testimony.  R. v. Poncelet, 2014 SKCA  30

REASONABLE GROUNDS: "TOTALITY OF CIRCUMSTANCES" IS KEY

A common argument at exceed .08 trials is the argument that the officer did not have reasonable grounds to make the breath demand. The Courts have once again stated the test to be used in reviewing an officer's decision:

One must consider all of the circumstances to assess whether the officer had reasonable and probable grounds to make the demand. R. v. Slippery, 2014 SKCA 23

Two other quotes from the case are interesting.  One cautions Courts about second-guessing officers' roadside decisions. The other relates to the usefulness of in-car camera systems:

The police, in the performance of their duties, often operate in less than ideal circumstances. It is necessary for the trial judge to bear this in mind in assessing whether a police officer has reasonable and probable grounds to believe a person is impaired. [Para. 33]

Video evidence is generally considered a valuable tool in an investigation.  Cory J. stated in R. v. Nikolovski, [1996] 3 S.C.R. 1197 that “the video camera on the other hand is never subject to stress.  Through tumultuous events it continues to record accurately and dispassionately all that comes before it.  Although silent, it remains a constant, unbiased witness with instant and total recall of all that it observed.  The trier of fact may review the evidence of this silent witness as often as desired”. [Para. 41]

CHARTER - AUTOMATIC ROADSIDE DRIVING PROHIBITIONS REVIEWED

British Columbia's immediate roadside prohibition (IRP) laws have been reviewed and (for the most part) upheld by the British Columbia Court of Appeal:

The legislation does not supplant the Criminal Code, its purpose and effect is to regulate highways and enhance public safety. The legislation does not create a criminal or quasi-criminal proceeding nor does it lead to true penal consequences and therefore, does not create an “offence” within the meaning of s. 11(d). The legislation authorizes a search that is unreasonable when a “fail” reading is obtained due to the limited grounds available to challenge the results of the search. This violation of s. 8 is not saved by s. 1. Sivia v. British Columbia, 2014 BCCA 79

Will other provinces follow?  Factsheets that explain the law and that list the statistics since the law came into effect in 2010 are on the Government of British Columbia website. 

SECTION 9 - LOCKED UP UNTIL SAFE TO RELEASE

Mr. Poletz was charged with driving while "over 80" and open liquor in a vehicle. To set the context, Mr. Poletz’s arrest took place at the Craven Country Jamboree, which is attended by over 20,000 people annually, after RCMP officers observed him slowly navigating his vehicle through a large crowd of Jamboree attendees. The trial judge made a finding that the RCMP had arbitrarily detained Mr. Poletz for 12 hours following the conclusion of their investigation of the charges against him and entered a judicial stay on his charges. The summary conviction appeal judge set aside that judicial stay and the Saskatchewan Court of Appeal agreed:

[I]t would seem to the public utterly incongruous to have properly found Mr. Poletz guilty on the two charges he faced only to then stay the entering of his convictions on those charges simply because the state had held him in detention longer than was appropriate in the circumstances where its resources were taxed by the policing demands of the Craven Jamboree. To the public, this would amount to an acquittal in the face of clear, convincing and admissible evidence of guilt and would only serve, in the circumstances, to itself raise questions as to the integrity of the justice system. R. v. Poletz, 2014 SKCA 16

Compare the decision in R. v. Key, 2011 ONCJ 780 (see January 28, 2012 blog entry).