REASONABLE GROUNDS - LACK OF CARE AND POOR JUDGEMENT COMBINED WITH STRONG SMELL OF ALCOHOL AND RED GLASSY EYES WERE ENOUGH

An officer encountered Mr. Coffer in Toronto.  The trial judge summarized the officer's testimony : Mr. Coffer was driving too quickly for the weather and he was straddling the hash marks in the road; these factors suggested a lack of care and poor judgement on the part of the driver. I also accept the officer's evidence that Mr. Coffer was aware of his presence when he pulled into 120 Shelburne and heard his instructions yet continued to ignore them; these factors suggested that Mr. Coffer was either again exercising poor judgement or was actively ignoring the officer. Finally, Mr. Coffer smelled strongly of alcohol and had red glassy eyes, suggesting that the driving concerns, the lack of judgement, and/or the desire to avoid the police were related to alcohol consumption.  R. v. Coffer, 2013 ONSC 470 

AS SOON AS PRACTICABLE - REASONABLE EXPLANATIONS FOR DRIVING SUSPECT TO URBAN DETACHMENT AND HAVING TO CHANGE SOLUTION

Mr. Burwell was arrested for impaired driving at the town of Asquith.  The closest detachment was at the town of Delisle.  However they did not have any members working that night.  The investigating officer was also a qualified technician, but he did not have a key to the Delisle detachment so he drove further to Saskatoon.  Once he got to Saskatoon, the investigating officer had to change the solution prior obtaining Mr. Burwell's breath samples.  There was an acquittal at trial but the appeal was successful and the Court entered a conviction : The trial judge's reasoning on the facts did not apply the "as soon as practicable" standard, but rather a standard of "as soon as possible". R. v. Burwell, 2013 SKQB 20 

SECTION 10(B) - RIGHT TO COUNSEL SHOULD INCLUDE ALLOWING ACCUSED PEOPLE INTERNET ACCESS

An Alberta Provincial Court decision found that a 19 year old impaired driving suspect in Calgary should have been allowed to access the internet to search for the number of a criminal defence lawyer: The Court notes that police are routinely accessing the internet in order to investigate crime and to assist them in gathering evidence and data in the course and scope of their employment.  It is now time for police to provide to accused persons access to the internet at the same time as they provide access to 411 and paper phone books. R. v. McKay, 2013 ABPC 13 

The case concluded with the finding that Mr. McKay's right to counsel was breached.  Further submissions were required about whether the breath sample results should be excluded due to the breach. 

SECTION 7 - TAPED OVER VIDEO FROM COFFEE SHOP DOES NOT LEAD TO A STAY

As part of his investigation into an impaired driving incident  that started at a coffee shop in Newmarket, an officer went into the coffee shop and asked if the CCTV on the store captured any video. He was told to return the next day and, when he did, he was given a disk with the CCTV footage on from the early morning. The officer put the disk in a property bag and delivered it to the station where it was put with the other disclosure materials. He did not look at the disk. Some three or so weeks later the disk was reviewed by an officer and found to be totally blank. The officer went back to the coffee shop to get a new disk but was informed that the portion had been “taped over" and there was no longer any footage available for the time of the incident.  He believes that he was told that the retention time was some 24 hours.  At trial Mr. Huber alleged that the police were negligent in obtaining a video tape from the coffee shop and that the charges against him should be stayed. The Court did not allow the application: "The only element of police negligence was not in the preservation of the evidence but only in not immediately checking to see is the disk contained the information that they were led to believe was there. The disk itself was preserved and there is no evidence that any police action led to a loss of the information. In hindsight, the immediate review of the disk could have resulted in obtaining a new copy, but it must be remembered that the police did nothing to cause the original problem nor did they do anything to lose the evidence." R. v. Huber, 2013 ONCJ 15

APPROVED INSTRUMENT MAINTENANCE LOGS DISCLOSURE

In a disclosure case released after the Supreme Court of Canada released the R. v. St Onge Lamoureux decision, the Alberta Court of Queen's bench classified approved instrument maintenance logs as "first party" disclosure as opposed to "third party" disclosure.  The Court concluded that approved instrument maintenance logs "must be disclosed to an accused upon request", as opposed to the lengthier O'Connor type application required for records in the possession of a third party. The Court  did not make the same conclusion about approved screening device maintenance logs as "the ASD results are not conclusive of anything and are not evidentiary."  R. v. Kilpatrick, 2013 ABQB 5