APPROVED INSTRUMENT MAINTENANCE LOGS DISCLOSURE

The Supreme Court of Canada in R. v. St-Onge Lamoureux (see November 25, 2012 blog entry) confirmed that an accused still has a limited ability to rebut the presumption if there is evidence tending to show that the approved instrument was malfunctioning or was operated improperly.  There are cases proceeding through court that are trying to clarify exactly what disclosure of intoxilyzer documents is required to allow an accused to attempt to present such evidence.  The Alberta Court of Appeal has provided an opinion on what type of evidence may need to be presented to trial judges to properly rule on disclosure applications for intoxilyzer maintenance records:

The evidentiary record in this case is sparse. It contains no expert evidence, nor any other evidence, relative to the operations of the Breathalyzer; nor is there any evidence regarding the “multiple internal tests” carried out by the approved instrument which it is argued make production of logs irrelevant. Nor is there any evidence showing that the judge was incorrect in concluding that maintenance logs are easily accessible and therefore not onerous for purposes of Crown disclosure. R. v. Kilpatrick, 2013 ABCA 168 

SUPREME COURT OF CANADA - R. v. IBANESCU

The most recent Supreme Court of Canada case to review impaired driving law is R. v. Ibanescu, 2013 SCC 31 where the Court restored an acquittal in which "staddle evidence" rebutted the statutory presumption that the blood alcohol level of the accused exceeded the legal limit at the time of driving in a case that dates back to 2006. The 2008 amendments to the Criminal Code should mean that this will be one of the last cases to review this specific issue.

IMPAIRED DRIVING INVESTIGATIONS - "A FINE DISTINCTION"

The British Columbia Court of Appeal has attempted to provide guidance on the distinction between using signs of impairment at roadside to form grounds for a breath demand versus using signs of impairment at roadside as evidence of impairment at a later impaired driving trial:

Para [69] A helpful way to apply the rationale of these decisions might be for a court first to determine the investigating officer’s focus or purpose at the roadside stop. If the evidence establishes that the officer formed the opinion from his or her initial interaction with the motorist, that it was necessary to remove the driver immediately from the road for safety reasons, then the investigator’s observations of the driver made thereafter would be available at trial to prove guilt on a subsequent criminal charge: Chand. However, if the evidence establishes that the purpose of the investigator’s direction to a motorist to exit his vehicle was to determine whether grounds existed to make a breathalyzer demand, then the observational evidence obtained thereafter would not be available to prove the guilt for a criminal offence: Milne. This might be a fine distinction but I would suggest an intelligible one. R. v. Visser, 2013 BCCA 393

CARE OR CONTROL AND NOTICE TO SEEK GREATER PUNISHMENT

The Ontario Court of Appeal has upheld a 2009 conviction for impaired care or control, even after applying the  Supreme Court of Canada's definition of care or control in paragraph 33 of the 2012 R. v. Boudreault case (see November 25, 2012 blog entry). The Court also upheld the lifetime driving prohibition and stated that Mr. Campbell receiving oral notice of the Crown's intention to seek an increased punishment at the outset of trial proceedings was sufficient. R. v. Campbell, 2013 ONCA 544

SECTIONS 10(B) AND 24(2) - ACQUITTAL SET ASIDE AND NEW TRIAL ORDERED

The Crown had conceded that there was a breach of Mr. Manchulenko's right to counsel.  He had asked to call a lawyer when he was in the breath room.  He went into the telephone room but came back out 40 seconds later and said "well, let's get this over with".  The officer did not then read him the waiver of counsel (Prosper) warning. He was acquitted at trial.  However the Ontario Court of Appeal ordered a new trial, repeating the Supreme Court's directions about dealing specifically with breath sample evidence:

Section 24(2) eschews presumptive rules.  No overarching rule governs how the balance is to be struck.  Each case requires a fact-specific evaluation of all the circumstances to determine whether the balance settles in favour of exclusion or of admission.  Despite the requirement that each case requires consideration according to its own factual matrix, as a general rule, reliable evidence obtained by less egregious and invasive intrusions into privacy, bodily integrity, and dignity, such as the taking of breath samples, may be admitted: Grant, at para. 111.

R. v. Manchulenko, 2013 ONCA 543