APPROVED SCREENING DEVICE AND SECTION 24(2) - ACQUITTAL UPHELD IN IMPAIRED OPERATION CAUSING BODILY HARM CASE

In the unique circumstances of this case (Mr. Spin was dealt with by police later at his mother's residence as opposed to directly at the roadside) the Crown conceded that Mr. Spin should have been read his Charter right to counsel prior to providing an approved screening device sample:

Mr. Spin’s counsel argued that the detention of his client commenced when he was being questioned by Constable Monteith at his mother’s residence.  The trial judge agreed and found that Mr. Spin was detained at his mother’s residence when compelled to attend at the police vehicle for the purposes of an ASD demand. The Crown did not appeal the trial judge’s finding that Mr. Spin was detained at his mother’s residence thus triggering his s. 10(b) rights at that time.  R. v. Spin, 2014 NSCA 1

Contrast the decision in R. v. MacMillan, 2013 ONCA 109 (see March 2, 3013 blog entry).

SECTION 8 - NO REASONABLE EXPECTATION OF PRIVACY FOR BREATH

The issue in this case was whether Ms. Daly had a reasonable expectation of privacy in her breath. She was operating her van when she failed to stop at a stop sign, causing a violent collision with another vehicle in an intersection. The four occupants of the other car and Ms Daly were injured. Ms. Daly was taken by ambulance to hospital where she was treated for her injuries. After the doctor completed treating Ms. Daly he had a conversation with the police officer investigating the accident, during which the doctor said he had noted an odour of alcohol emanating from her. At the officer’s request, the doctor provided a brief written statement outlining this observation.  The doctor testified that he did not consider his observation and information to be medical in nature.  It was something anyone could have noted  and not peculiar to the doctor/patient relationship, he said. The officer later used that evidence in an information to obtain a warrant to seize Ms. Daly's medical records. The trial judge found the above steps to be a Charter breach and she was acquitted. The Crown appealed and the Ontario Superior Court allowed the appeal and ordered a new trial:

The consumption of alcohol is not an intimate detail of Ms Daly’s lifestyle or part of her core biographical data that should be kept out of the hands of the state. R. v. Daly, 2014 ONSC 115  

EVIDENCE TO THE CONTRARY - DOES "BURPING" AFFECT THE PROPER OPERATION AND FUNCTIONING OF THE INSTRUMENT?

The Alberta Court of Appeal has granted leave to appeal a case where Mr. So challenged the results of his breath samples (R. v. So, 2013 ABCA 433). The issue before the Court will be:

Is evidence of a failure by a qualified technician to comply with a direction contained in the Part A of the “Operation of the Intoxilyzer 5000C” (namely, to make sure that the subject’s breath is free of mouth alcohol, burping being a source of mouth alcohol identified by the Manual) evidence “tending to show” that the approved instrument was operated improperly?

That argument was not successful at his trial nor at his summary conviction appeal (the appeal decision can be found at R. v. So, 2013 ABQB 549).

SECTION 8 - BREATH TESTS NOT 'AS SOON AS PRACTICABLE' WHERE OFFICERS HAD VEHICLE TOWED

The Saskatchewan Court of Appeal (in a split decision) has restored the acquittal of a driver who had his vehicle towed prior to the officers taking him for breath samples.  The dissenting judgment concluded that "there was a reasonable explanation for the delay based on a lawful seizure of the vehicle.  The delay of 35 minutes was not unreasonable in itself.  The tests were taken within a reasonably prompt time under the circumstances." The case lists a number of earlier cases which show that waiting for a tow truck does not necessarily create a situation where the sample is not taken as soon as practicable. R. v. Wetzel, 2013 SKCA 143

CARE OR CONTROL – THE "REALISTIC RISK OF DANGER TO PERSONS OR PROPERTY" DEPENDS ON THE PARTICULAR FACTS OF EACH CASE

The R. v. Boudreault case (see November 25, 2012 blog entry) from the Supreme Court of Canada was released late in 2012 and Canadian Courts have been applying it since that time.  The Manitoba Court of Appeal has reviewed the law concerning care or control in Mr. Steuart's application for leave to appeal:

In the absence of a contemporaneous intention to drive, a realistic risk of danger may arise in at least three ways. First, an inebriated person who initially does not intend to drive may later, while still impaired, change his or her mind and proceed to do so; second, an inebriated person behind the wheel may unintentionally set the vehicle in motion; and third, through negligence, bad judgment or otherwise, a stationary or inoperable vehicle may endanger persons or property.

Consequently, even if an accused satisfies the court that he did not occupy the driver’s seat with an intention to drive, this will not necessarily result in an acquittal.  Nor will it automatically result in a conviction.  In the absence of an intention to drive, what will be required to convict is that there be a realistic risk of danger given the particular facts of the case. R. v. Steuart, 2014 MBCA 7