SECTION 259(4) - OPERATING WHILE DISQUALIFIED - WHAT CERTIFICATES AND NOTICES ARE REQUIRED FOR TRIAL?

Different certificates and notices are needed to prove that an accused was prohibited from driving under a Criminal Code prohibition order or to prove that an accused was prohibited from driving due to provincial legislation. This case assists in describing what those requirements are:

An offender may be convicted of driving while disqualified under s. 259(4) of the Code based on either or both a driving prohibition order under the Code, or a driving suspension or restriction imposed under provincial law upon conviction for an eligible Code driving offence. Where the Crown relies on a driving prohibition order under the Code as the relevant driving “disqualification”, as permitted by s. 259(5)(a) of the Code, . . . the Crown [must] prove compliance with s. 260(1) of the Code as an essential element of the s.259(4) offence.  However, where the Crown relies on a provincial driving suspension or restriction, as contemplated by s. 259(5)(b)(i) of the Code, s. 260(1) of the Code is not engaged.  In the latter circumstances, on the authority of ss. 260(4) and (5) of the Code, the Crown may prove the provincial driving disqualification by relying on a provincial registrar’s certificate [with notice] setting out the details of the provincial driving suspension or restriction, without regard to compliance with s.260(1). R. v. Fernandes, 2013 ONCA 436

SECTION 11 - CHARTER RIGHT THAT A TRIAL BE HELD WITHIN A REASONABLE TIME - 34 MONTHS NOT UNREASONABLE

February 9, 2010 - Mr. Smith was involved in a motor vehicle accident that resulted in injuries to the other driver. 

December 14, 2012 - Mr. Smith was convicted of impaired driving causing bodily harm and dangerous driving causing bodily harm.

He applied to the trial judge for a stay because his trial had not been held within a reasonable time as mandated by section 11(b) of the Charter. That application was denied.  The Alberta Court of Appeal dismissed his appeal as they found no error with the trial judge's findings:  The trial judge found that no actual prejudice was occasioned by the delay. It did not impact the evidence of the various witnesses. While she concluded that the delay was regrettable, she did not find it to be unreasonable, and so there was no breach of s. 11(b). R. v. Smith, 2013 ABCA 312

SENTENCE - FINE SET ASIDE AND IMPRISONMENT IMPOSED FOR IMPAIRED CAUSING BODILY HARM CONVICTION

Mr. Lommerse was operating an ATV when it flipped, injuring his passenger. His blood alcohol content was at least 150 mg%, but he had no prior record, was remorseful and the injured passenger spoke in support of Mr. Lommerse at the sentencing hearing. The sentencing judge imposed a $1500 fine and 18 months probation. The Court of Appeal for Yukon allowed the Crown appeal and substituted a sentence at the low end of the usual sentencing range – four months imprisonment. R. v. Lommerse, 2013 YKCA 13

SENTENCE - JAIL SENTENCE INCREASED FOR IMPAIRED CAUSING DEATH

Ms. Smith was initially sentenced to one day in prison followed by a three year probation order for one count of impaired driving causing death. Her decision to drive while highly intoxicated meant that "she posed an extreme danger to everyone travelling in the vicinity that day". However the trial judge had to also take into account her limited cognitive ability, her efforts at sobriety and the fact that she had no criminal record. The British Columbia Court of Appeal gave her credit for the one day she served and increased her actual sentence to two years less one day incarceration, followed by three years' probation, and affirmed the 10-year driving prohibition.  The Supreme Court of Canada dismissed her application for leave to appeal.  R. v. Smith, 2013 BCCA 173

SECTIONS 10(B) AND 24(2) - CONVICTION REINSTATED FOR "RELATIVELY MINOR" RIGHT TO COUNSEL BREACH

Similar to the "fresh start" decision in R. v. Manchulenko (see September 15, 2013 blog entry), the Ontario Court of Appeal concluded that breath sample evidence ought to have been admitted in a case where a breach of the informational component of s. 10(b) was relatively minor, especially in light of the subsequent contact of Mr. Belanger with duty counsel facilitated by the arresting officer. R. v. Belanger, 2013 ONCA 349