COLLISION - ORAL STATEMENTS BY SUSPECT DRIVER RULED VOLUNTARY

This case serves to remind officers to keep careful notes of all statements made by a suspect, even statements directed at people other than police officers. Mr. Rowe was taken to a hospital after being the driver in "a single car accident". The trial judge concluded:

The evidence before me from Cst. Gatti and Cst. Gilbert establishes that Mr. Rowe was conscious throughout except when the police tried to speak with him at which time he simply closed his eyes and ignored them.  His statement “Good it will help me beat this case”, referring to “torturing him” demonstrates absolutely that he was fully conscious, aware of his surroundings, why the police were there and his rights, cautions and the demand.  Mr. Rowe was making demands and fully aware of what he felt he needed, i.e. water, blankets and the washroom.  I find that his mind was operating and he made ... statements aware of his right to remain silent and did so voluntarily.

At trial he was convicted of operating a motor vehicle while impaired by alcohol and of refusing to provide a breath sample. The Ontario Court of Appeal denied Mr. Rowe's application for leave to appeal.  R. v. Rowe, 2013 ONCA 311

IMPAIRED AND EXCEED .08 CAUSING DEATH - CAUSATION AND POST-DRIVING DRINKING ISSUES ANALYZED

Mr. Hinkley ran over and killed his mother while driving a Peterbilt tractor trailer out of a Quonset on his parents’ farm. He blew 0.19 roughly two hours after the incident. Causation was somewhat problematic, and Mr. Hinkley testified that he drank 20 ounces of vodka after he drove but before the breath samples. He was convicted at trial and the Alberta Court of Appeal dismissed his appeal. There was "plenty" of evidence to reject the "post-accident consumption of alcohol defence", including emergency personnel not seeing a vodka bottle at the scene. As to causation:

[I]f impairment is more than a minimal cause of the death, it is open to a trial judge to find that the impairment was the cause of the death and, in this case, did find that the appellant’s impairment caused his mother’s death. The trial judge expressly made reference to the accused’s lack of judgment in not adjusting the driver’s seat to a height where his ability to see what was in front of him was improved. Poor judgment is also an indicator of impairment. R. v. Hinkley, 2013 ABCA 207

SECTION 9 - CHARTER RIGHTS VIOLATED WHEN THE SUSPECT WAS STOPPED BECAUSE THE OFFICER THOUGHT THE VEHICLE WAS "SUSPICIOUS"

Winnipeg Police Service officers decided to stop a vehicle because they thought that it was suspicious that there was a vehicle on a road that lead to a park on the outskirts of the city at 2:00 a.m. Eventual questioning lead to an ASD fail and arrest (but forgetting to read the formal breath demand until 20 minutes later at the detachment) and samples that were over 80.  Ms. McCammon was acquitted at trial when the evidence of the breath samples was excluded due to section 8 and 9 breaches.  The Manitoba Court of Appeal dismissed the Crown's application for leave to appeal:

[H]ighway traffic stop authority cannot be a means to conduct an unfounded general inquisition or a comprehensive check for criminal activity.  [P]olice cannot validate an otherwise illegal stop by pursuing highway safety issues once the accused is detained. R. v. McCammon, 2013 MBCA 68

BLOOD DEMAND AND SEARCH WARRANT FOR HOSPITAL BLOOD SAMPLES

A rights to counsel issue arose when officers were dealing with Mr. Taylor at the hospital. Samples of his blood were obtained pursuant to a blood demand. The next day an information to obtain a search warrant was prepared, a search warrant was issued by a Provincial Court Judge, and Mr. Taylor's hospital blood samples were seized and sent for analysis. He was convicted of three counts of impaired driving causing bodily harm. A majority of the Alberta Court of Appeal (Slatter J.A. dissenting) allowed Mr. Taylor's appeal, quashed the conviction, and entered an acquittal.

The issues associated with investigating a suspected impaired driver in a hospital setting are complex, as is evidenced by this (122 paragraph!) judgment in which the panel itself reached different conclusions. R. v. Taylor, 2013 ABCA 342

CARE OR CONTROL - WAITING FOR A TAXI WITH THE KEYS ON THE CONSOLE = CONVICTION APPEAL ALLOWED AND NEW TRIAL ORDERED

Mr. Yorston left a bar to wait for his ride, but got cold and decided to go wait in his vehicle. When he got in his vehicle, he put the keys on the console, sat, and waited. The police found him in his vehicle and arrested him for having care and control of a motor vehicle while impaired by alcohol. The trial judge found that, while Mr. Yorston did not intend to drive when he got into the vehicle, he could have accidentally set the vehicle in motion, and convicted him. The Alberta Court of Appeal allowed his appeal and ordered a new trial. R. v. Yorston, 2013 ABCA 309