COLLISION - DETERMINING WHO WAS DRIVING

Mr. Curry did not testify at trial and did not dispute that he was the driver when the vehicle left a party, or that his ability to drive was impaired by alcohol. However, he argued through counsel that he had switched seats with a Mr. Amell within the short time and distance before the vehicle veered off the road. Mr. Curry was found guilty of driving "over 80", due to driving away from the party.  However he was acquitted of impaired causing, as the trial judge had a doubt with respect to whether Mr. Curry was driving when the vehicle veered off the road. The Crown appealed and the Ontario Court of Appeal ordered a new trial, and listed some of the "overwhelming body of evidence" gathered that was incompatible with the suggestion that Amell, rather than Mr. Curry, was the driver at the time of the collision:

•        a witness testified that she saw Amell – the larger of the two men – holding on to the driver’s door, which photographs indicate was severed from the rest of the vehicle;

•        a witness provided, at the scene of the collision, a handwritten statement to police indicating that she saw Mr. Curry on the driver side and Amell on the passenger side;

•        according to a collision investigator’s testimony, Mr. Curry's injuries were more consistent with a front seat occupant of a vehicle involved in a front-end collision whereas Amell’s were more consistent with a rear seat occupant;   

•        the collision investigator could not agree that the respondent could have suffered a broken ankle as a rear seat passenger in the van;

•        whereas the driver’s door was severed from the vehicle, allowing for egress, photographs indicated that an exit through either of the van’s sliding passenger doors would have been difficult or impossible;

•        the scene of the collision was less than five kilometres from the location of the party where the respondent was seen driving the van, or approximately four minutes away if traveling at a reasonable speed, leaving very little (if any) opportunity for the driver and rear-seat passenger to switch places; and  

•        Mr. Curry suffered more severe burns than Amell, consistent with a front seat passenger involved in a fire starting in the front of the vehicle and spreading toward the back, as indicated by the eyewitness evidence. R. v. Curry, 2014 ONCA 174

REFUSAL - THE ACCUSED MUST PROVE ON A BALANCE OF PROBABILITIES THE FACTS ASSERTED AS GIVING RISE TO A REASONABLE EXCUSE

Mr. Goleski was tried and convicted of failing or refusing to provide a breath sample.  He testified he deliberately refused to comply with a breathalyzer demand because he believed the investigating officer would not accurately report the results.  That belief was premised on the officer having lied to Mr. Goleski about why he stopped the vehicle Mr. Goleski was driving.  The trial judge held that the persuasive burden was on Mr. Goleski to establish a reasonable excuse on a balance of probabilities.  Being of the view that both Mr. Goleski and the officer were believable witnesses, the trial judge found Mr. Goleski had failed to meet that burden. The BC Court of Appeal, referring to earlier cases, agreed with the trial judge's approach:

The elements of the offence that the Crown must prove are:  (i) a proper demand; (ii) a failure or refusal to provide the required breath sample; and (iii) an intention to fail or refuse to provide the required sample. The defence of “reasonable excuse” is not a denial of those essential elements but refers to “matters which stand outside the requirements which must be met . . . before a charge can be supported”.  R. v. Goleski, 2014 BCCA 80

SENTENCE - SIX YEARS FOR IMPAIRED CAUSING DEATH AND ONE YEAR CONSECUTIVE FOR REFUSAL

In this case, a five-month-old baby was killed and his mother’s back broken as a result of the Ms. Purtill’s offences. Ms. Purtill appealed her six year sentence for impaired/criminal negligence causing death and impaired/criminal negligence causing bodily harm. The sentencing judge had also imposed one year jail consecutive for refusal to provide a breath sample.  Her appeal was dismissed. Of note, the Ontario Court of Appeal stated:

There is no fixed term upper limit for criminal negligence causing death or impaired driving causing death.  The facts of the case must govern. 

Furthermore, there was no error in the sentencing judge’s imposition of a consecutive sentence for the offence of refusal to provide a breath sample. The seven year sentence was not unduly long or harsh in the circumstances and we are satisfied that the sentence does not offend the totality principle.  R. v. Purtill, 2013 ONCA 692

SENTENCE - TWO YEARS LESS A DAY JAIL FOR "SERIAL DRUNK DRIVER"

Mr. Clarke was convicted of driving while over .08 and was sentenced to 14 months jail and given a 2 year driving prohibition. His record dated back to 1976, with 9 prior drinking and driving priors and 5 drive while disqualified priors.  Both he and the Crown appealed the sentence.  The Court allowed the Crown appeal and raised his sentence to two years less a day jail and imposed a 3 year driving prohibition:

Public protection is the paramount sentencing objective for offenders who persistently drive motor vehicles when they are impaired or disqualified. Given Mr. Clarke’s work record, it would not be unexpected that he would be a model prisoner. The issue is how to deter him from driving while intoxicated.  In our view, there is no basis to depart from the past jurisprudence of this Court, which places a heavy emphasis on lengthy custodial sentences for serial drunk drivers as a means of ensuring general and specific deterrence. R. v. Clarke, 2013 SKCA 130

REFUSAL - ARE POLICE REQUIRED TO REPEAT THE DEMAND AFTER THE ACCUSED HAS BEEN GIVEN AN OPPORTUNITY TO CONSULT WITH COUNSEL?

Mr. Bagherli was arrested for impaired driving and read a breath demand.  At the end of the demand he was told "Should you refuse this demand, you will be charged with the offence of refusal. Will you provide samples of your breath?"  His answer was "No". He was charged with refusal and convicted at trial.  Mr. Bagherli appealed and his appeal was allowed and an acquittal was entered, in part due to the Court's finding that:

"I am of the view that the appellant's s. 10(b) rights were breached when Constable Friesen required him to answer the breath demand and acted on that answer before he had the opportunity to consult a lawyer.  Having done so, he should have made it clear to the appellant that he was not bound by his earlier response, that he could change his mind after he spoke with a lawyer, and should have re-read the breath demand at the police station."

The Crown sought leave to appeal and argued that to comply with the above decision, the police will have to drastically alter their procedures when making breath demands in impaired driving investigations. The Manitoba Court of Appeal granted leave and the future decision is expected to answer questions such as:

Can the police require the accused to respond to a breath demand before he has had a reasonable opportunity to consult with counsel?  And if they cannot require him to respond, what are the consequences if they do? Is the offence of refusal complete when an accused, having previously refused, does not withdraw the refusal after the right to counsel has been facilitated?  Are the police required to repeat the demand after the accused has been given an opportunity to consult with counsel?  And if the police are required to repeat the demand, what are the consequences if they fail to do so?

The facts of the case are detailed in the Queen's Bench decision of R. v. Bagherli, 2013 MBQB 189 and the decision granting leave to appeal is cited at R. v. Bagherli, 2014 MBCA 14