APPROVED SCREENING DEVICE AND SECTION 24(2) - NEW TRIAL ORDERED FOR IMPAIRED OPERATION OF A VESSEL CAUSING DEATH

The accused was acquitted at trial, due in large part to the Court concluding that there was a delay (29 minutes) between the officer formulating his grounds to make the ASD demand and making the ASD demand and a delay (57 minutes) between making the demand and obtaining the breath sample.  The Court excluded the breath sample evidence (170 mg%) pursuant to section 24(2).  The Ontario Court of Appeal ordered a new trial : There were exigent circumstances that explained the first 29 minutes - the officer was dealing with the arrival of distraught friends and family members and Ms. MacMillan herself had fainted and was dealt with by paramedics. There were also explanations for the second 57 minutes - the officer wanted to be satisfied that Ms. MacMillan was medically fit to provide a sample.  However she should have been given the opportunity, during that 57 minutes, to consult counsel.  The Court noted that even with that section 10(b) breach, there is no longer a rule of automatic exclusion for breath test evidence - in its place is the analysis based on three inquiries, which will often favour admission of breath test evidence. R. v. MacMillan, 2013 ONCA 109

IMPAIRMENT - CONVICTION UPHELD BASED ON OFFICER'S OBSERVATIONS

The appellant was convicted of impaired driving. He appealed and argued, among other things, that the trial judge erred in considering the police officer's observations of slurred speech as evidence of impairment. The Saskatchewan Court of Appeal dismissed the appeal and upheld the conviction : The first attending officer testified that he observed the appellant to have bloodshot eyes, a flushed face, slurred speech, a dry mouth and a strong odour of alcohol. [A]n officer may observe signs of impairment in a driver, such as a strong odour of alcohol, blood-shot and glassy eyes, dilated pupils, slurred speech, unsteadiness of gait upon the driver exiting the vehicle, or other similar signs. These observations would be admissible at trial to prove impairment. None of the observations of the first attending police officer, including his observation of slurred speech, were as a result of conscripted or compelled evidence from the appellant. The indicia of impairment was available as evidence because of observations of the police officer and not because the appellant was compelled to do anything. R. v. Rodgers, 2013 SKCA 16

SENTENCE - GENERALLY

Courts of all levels have provided direction, and useful quotes, with respect to sentencing impaired drivers:

Drinking and driving must be seen as a true crime, and no longer be brushed off as a mere non-deliberate regulatory offence. R. v. Rhyason, 2007 ABCA 119 

Every year, drunk driving leaves a terrible trail of death, injury, heartbreak and destruction.  From the point of view of numbers alone, it has a far greater impact on Canadian society than any other crime.  In terms of the deaths and serious injuries resulting in hospitalization, drunk driving is clearly the crime which causes the most significant social loss to the country. R. v. Bernshaw, [1995] 1 S.C.R. 254

It is important to note that although Rhyason dealt with sentencing for an impaired driving causing death offence, Bernshaw dealt with a simple traffic stop, but the Supreme Court of Canada still referenced the damage that any impaired driver could cause.

SENTENCE - 12 MONTHS JAIL AND 4 YEAR DRIVING PROHIBITION UPHELD

The Alberta Court of Appeal dismissed the accused's appeal of a 12 month jail sentence and a 4 year driving prohibition which was imposed when he pleaded guilty to impaired driving causing bodily harm. Mr. MacPherson was 30 years old and had a prior record, including convictions for impaired driving and assault causing bodily harm. The trial judge correctly noted that denunciation, deterrence, and rehabilitation are important goals of sentencing in impaired driving cases. R. v. MacPherson, 2013 ABCA 62 

SENTENCE - JOINT SUBMISSION FOR 5 MONTHS JAIL AND A 5 YEAR DRIVING PROHIBITION SUPPORTED

The Saskatchewan Court of Appeal has released a judgment that re-affirms the deference that trial Court's have to give to sentence submissions that are jointly submitted by counsel.  The trial judge had initially imposed a 12 month jail sentence.  However the Court of Appeal allowed the appeal and imposed a sentence of 5 months jail, which had been originally recommended by both Crown and defence counsel.  R. v. Stonechild, 2013 SKCA 5