SECTIONS 8 AND 9 - HOLIDAY TRAFFIC STOPS

Enforcement of impaired driving laws traditionally increases during the holiday season and traffic stops can lead to the discovery of more than just impaired drivers. However, searches cannot be unreasonable and detentions cannot be arbitrary.  Every step in a roadside investigation has to have a reason. Reviewing the facts in the following cases may assist in ensuring that evidence found during traffic stops is not excluded (eg., R. v. Nartey) due to a Charter breach. The evidence discovered in each case is listed below:

A loaded semi-automatic handgun - R. v. Johnson, 2013 ONCA 177

Loaded guns, cocaine and marijuana - R. v. Nartey, 2013 ONCA 215

A loaded handgun - R. v. Blackwood, 2013 ONCA 219

Marijuana, cocaine and a loaded handgun - R. v. Morris, 2013 ONCA 223

APPROVED INSTRUMENT MAINTENANCE LOGS DISCLOSURE - UPDATE

The R. v. St-Onge Lamoureux case is now one year old. Cases dealing with disclosure of approved instrument documents are now progressing through courts.  In some cases forensic toxicologists were called to provide testimony. However in some cases there was testimony from police officers.  Reviewing the following cases may assist police officers who are called to testify in those situations:

Alberta - R. v. Sutton, 2013 ABPC 308 and R. v. Howie, 2013 ABPC 288

Ontario - R. v. Oleksiuk, 2013 ONSC 5258 and R. v. Parizeau, 2013 ONCJ 302

Saskatchewan - R. v. Hudye, 2013 SKPC 122 and R. v. Pankiw, 2013 SKPC 47

SECTION 254(3) - BREATH DEMAND COMPLIED WITH - CONVICTION RESTORED

The contentious issue in this case involved the evidence concerning who read the breath demand to Mr. Wylie. Both of the officers at the scene testified that a breath demand was made at 1:12 a.m. on June 8, 2011.  However, each testified that the other had actually made the demand. The Ontario Court of Appeal provides officers with a useful summary of the requirements for a breath demand:

All that s. 254(3) requires is that a valid breath demand is made by a peace officer with reasonable grounds to do so and that the demand is made as soon as practicable. There is nothing in the Criminal Code or in the jurisprudence that supports the proposition that the Crown must prove the “who, what, where and when” of the demand.  R. v. Wylie, 2013 ONCA 673

A word of advice to officers: keeping better notes of who actually read the breath demand will avoid this argument being raised at trial in the first place.  Counsel will find this case useful as it is yet another case that confirms that the 1975 Rilling case is still good law:

Moreover, [Mr. Wylie] complied with the demand.  In accordance with R. v. Rilling, absent a Charter challenge, compliance with the demand provides a complete answer in the Crown’s favour.

SECTION 259(4) - OPERATING WHILE DISQUALIFIED - GENERALLY

Even though the circumstances in the Fernandes case and the Brownson case were almost identical, Mr. Fernandes was convicted and Mr. Brownson was acquitted. Reviewing both cases will assist investigators and counsel in understanding how to deal with these important investigations and trials:

Parliament and the courts have long recognized that driving offences, particularly drinking and driving offences, are serious crimes with grave consequences.  Not infrequently, they result in significant societal damage and injury, often of a tragic and permanent nature.  In this context, driving while disqualified prosecutions assume great importance. R. v. Fernandes, at paragraph 117

SECTION 259(4) - OPERATING WHILE DISQUALIFIED - WHAT IS THE PROPER WAY TO WORD THE CHARGE?

Mr. Brownson had completed the one year Criminal Code driving prohibition but was still subject to the three year provincial driving suspension when he was seen operating a motor vehicle.  This case assists in describing how the charge in the information should be worded:

It is apparent from this chronology that when he was arrested, the appellant was disqualified from driving by operation of a provincial law, but not by virtue of the prohibition order under the Criminal Code.  The latter had expired.  However, the information specified that the appellant had been arrested for driving while disqualified by s. 259(1) of the Criminal Code.  This was incorrect.  R. v. Brownson, 2013 ONCA 619