VIDEOTAPE EVIDENCE - ERASED DETACHMENT VIDEO DOES NOT RESULT IN A STAY

The Court of Queen's Bench for Saskatchewan had earlier set aside a judicial stay and remitted a matter back to trial in a case where an RCMP detachment video had been erased (see January 28, 2012 blog entry).  Now the Saskatchewan Court of Appeal has not granted leave to defence to appeal that decision:

[The Crown appeal was allowed on] the basis that there was no evidence before the trial court at that time that the erased video had contained content related to whether Mr. Gilchrist had been given his right to counsel and there was no evidence generally demonstrating how the contents of the video might have been relevant or useful to Mr. Gilchrist in making full answer and defence to the charges. The Crown argues that leave to appeal should be denied in this case because the summary conviction appeal court judge said nothing more than Mr. Gilchrist had failed to prove the missing evidence was relevant and had failed to demonstrate why a stay was appropriate.  The Crown submits that even if Mr. Gilchrist’s appeal raises a question of law, that question of law has little real significance beyond the facts of this case. This is an appeal where there is only a modest chance of success and the questions of law raised by Mr. Gilchrist are not of sufficient importance to warrant granting of leave.  Leave to appeal is therefore denied. R. v. Gilchrist, 2013 SKCA 142

CREDIBILITY - OFFICER TESTIMONY

The sole issue at Mr. Dexter's trial was who was driving the car when it crashed into the woods, injuring some of the occupants.  The Ontario Court of Appeal upheld Mr. Dexter's convictions for impaired causing, dangerous driving causing and flight from police causing bodily harm, and pointed out the main investigating officer's testimony in doing so:

The core of the defence argument at trial was that the inconsistencies in the evidence of the three witnesses as to who drank what and when, and their state of intoxication, made them inherently unreliable witnesses on the issue of who was driving at the key time.  The trial judge responded to this argument by saying, “Officer Bates was a reliable witness whose evidence I accept.  He was on duty as a police officer and he was not consuming alcohol.” . . . The fact that Officer Bates’s evidence confirmed the evidence of the three witnesses showed that, contrary to the defence submission, they were not so intoxicated that their evidence as to what happened at the material time was unreliable. He was entitled to use Officer Bates’s evidence as he did. R. v. Dexter, 2013 ONCA 744

REASONABLE GROUNDS - COURT TAKES INTO ACCOUNT OFFICER TRAINING AND EXPERIENCE

The British Columbia Court of Appeal has delivered a judgment that is similar to the Alberta Court of Appeal's decision in R. v. Phung (see March 9, 2013 blog entry). The result of the BC case shows that it is important for officers to describe their training and experience in both their reports and in their testimony. Although the BC case is a drug case, officers can certainly refer to training and experience in investigating impaired drivers in the same manner that drug investigation experience is referred to in the paragraph below:

Both [officers] have specialized skill and training that the trial judge failed to take into account when deciding whether there were objectively valid grounds for arresting Mr. Messina. These were experienced officers who had been involved in numerous drug investigations. Their observations, considered in their totality, were sufficient to support objectively reasonable grounds that Mr. Messina was engaged in drug dealing. They did not have to rule out all other possible innocent explanations for Mr. Messina’s conduct or each event. They were entitled to use their training and experience to conclude from the totality of their observations that Mr.Messina was trafficking in drugs from his car. R. v. Messina, 2013 BCCA 499

CHRISTMAS IN JAIL

Christmas in jail - view video here.

IMPAIRED DRIVING INVESTIGATIONS - CONVICTION FOR IMPAIRED DRIVING UPHELD EVEN THOUGH ASD USED

How can the Crown prove impaired driving beyond a reasonable doubt at trial when the investigating officer only had a reasonable suspicion of impairment at the roadside? By presenting further evidence gathered by the officer. For example: further signs of impairment noted after the arrest, a warned statement from the accused about alcohol consumption, written witness statements from civilians who called police about the driving they had witnessed.  In the case of Mr. Wilson, the Saskatchewan Court of Appeal upheld the trial judge's conviction for impaired driving even though at the outset of the investigation the officer only had a reasonable suspicion of impairment and therefore used an approved screening device:

[C]onviction on the impaired driving charge pivots not on the judgment of the arresting officer but rather on the weight of the whole body of evidence before the trial judge, which cogently supports the conclusion that he operated a motor vehicle while his ability to do so was impaired by alcohol. R. v. Wilson, 2013 SKCA 128