CARE OR CONTROL - WAITING FOR A TOW TRUCK IN AN IMMOBILIZED CAR = CONVICTION

Ms. Gallagher was found behind the wheel of her car which was immobilized in a ditch. She indicated that she was waiting for a tow truck to extricate her from the ditch. The trial judge found that she intended to continue driving, and convicted her. The Alberta Court of Appeal confirmed that conviction. R. v. Gallagher, 2013 ABCA 269

SENTENCE - VERY HIGH "MORAL CULPABILITY" LEADS TO 30 MONTH JAIL SENTENCE

Ms. Alm was driving on the wrong side of a divided highway and drove head on into a vehicle with two occupants. Her blood alcohol content was more than twice the legal limit and the two victims suffered permanent injuries. The Saskatchewan Court of Appeal increased doubled her sentence from 15 months to 30 months:

On the whole of the evidence, the moral culpability in this case is very high.  Knowing that she has had difficulty with a drinking problem in the past, including two previous convictions, albeit dated, of impaired driving, she nevertheless drove to the bar so that she could drink and gamble because she was bored.  Thereafter, she decided to drive back on a road which was unfamiliar to her.  Moreover, she was receiving medication for many of her medical problems arising out of her difficult personal circumstances in the past, and there were warnings on her medication bottles and the warnings of her doctor not to drink while taking the medication.  Despite this, she drank while taking the medication. The sentencing judge overemphasized the personal circumstances of Ms. Alm but said little about the victims, the gravity of the offence and Ms. Alm’s moral culpability.  The sentence imposed did too little to meet the objectives of denunciation and deterrence. There have been massive efforts in the last number of years by both government and non-government organizations to educate people about the tragic consequences of drinking and driving.  Legislation has changed to reflect the abhorrence by society of a crime which happens all too often and ruins people’s lives as a result.  Sentences have increased and still people drink and drive.  This is unfortunate.  Denunciation and deterrence are therefore still the primary objectives to be achieved when sentencing for offences in this area. R. v. Alm, 2013 SKCA 40

SENTENCE - REMAND CREDIT AND IMMIGRATION ISSUES ANALYZED

A two year less one day jail sentence for impaired driving causing death was upheld by the Court of Appeal for Yukon.  Mr. Maxwell-Smith had been in custody for  8 1/2 months prior to his sentencing and would have been deported with no right of appeal if the length of the prison sentence was two years or more. R. v. Maxwell-Smith, 2013 YKCA 12

SENTENCE - THIRTY MONTH SENTENCE FOR IMPAIRED CAUSING DEATH

The Saskatchewan Court of Appeal made the following comment in a case where the original 24 month sentence was set aside and a 30 month sentence imposed :

It is common ground that in the last 30 years, drinking and driving laws have been amended to aid police in the detection of impaired drivers and to generally increase the sentences which can be imposed on impaired drivers.  Legislative examples of this are the increased maximum sentence for impaired driving causing death from 14 years imprisonment to life in 2001, amendments to the Criminal Code in December 2007 which precludes conditional sentences for impaired drivers causing death, and amendments in 2008 which raised the minimum sentence plateau for drinking and driving offences.  However, despite strong penalties imposed by Parliament, drinking and driving offences continue to be a societal problem. R. v. Ross, 2013 SKCA 77

APPROVED SCREENING DEVICE DESCRIPTION - THE LABEL ON THE "400D" SHOULD NOT BE THE ONLY FOCUS AT TRIAL

At trial, evidence of the intoxilyer was excluded: A true photograph of the Intoxilyzer actually utilized in this case was entered as Exhibit 3.  It reads “Intoxilyzer 400”.  The letter “D” does not appear beside the number 400 on Exhibit 3.  The letter “D” is located next to a serial number which is on a different place on the instrument.  The Defence says that the instrument used by the arresting officer at roadside was not an Intoxilyzer 400D as required in the Criminal Code but rather an Intoxilyzer 400.  Clearly an Intoxilyzer 400 is not the same as an Intoxilyzer 400D.  It is only the latter which is an approved instrument under the Criminal Code.

The Alberta Court of Appeal ordered a new trial:

In our opinion, the trial judge erred in focusing only on the label of the instrument without considering the entire factual matrix on the issue of objective reasonableness. For that reason, we dismiss the appeal and we confirm the order of the summary conviction appeal judge directing there be a new trial. R. v. Nowakowski, 2013 ABCA 325