SECTION 8 - ACQUITTAL DUE TO ENTRY INTO RESIDENCE WITHOUT A WARRANT

RCMP officers were interviewing a complainant about an attempted theft in Virden, Manitoba.  The complainant indicated the theft suspects were driving a white truck.  At this point in time, Mr. Law drove by in a white truck. The officers followed the truck on the highway until it turned onto a private lane.  Both officers noted that the manner in which the truck turned off the highway was unusual. The police followed the truck down a lane to a yard site where Mr. Law exited the truck and began walking into the residence as he said his driver’s license was in the house. One officer indicated he followed Mr. Law into the house where he noted that Mr. Law appeared to be confused while searching for his license and an odour of alcohol was detected from his breath. He was placed in the back of the police car and arrested for impaired driving. The Court concluded that the provisions of Manitoba's Highway Traffic Act permit police officers to follow a motor vehicle onto private property to conduct a roadside check.  That conclusion was based on the fact that the officers were following up on observations made while the motor vehicle was being operated on a highway. However the Court concluded that the entry into the residence by the officers was not authorized by law and therefore was an unreasonable search. Police entry into an accused’s home is an extremely serious measure for police to take in the course of an investigation.  Warrantless searches of an accused’s home can only occur in exigent circumstances and those circumstances did not exist in this matter. R. v. Law, 2012 MBQB 321

ACQUITTAL BASED ON POSSIBLE POST-DRIVING ALCOHOL CONSUMPTION OVERTURNED

The 2008 amendments to the Criminal Code that restricted the use of the "two-beer defence" have been intrepreted to show that it is now difficult for an accused to be acquitted of an exceed .08 charge even when there is possible evidence of consuming alcohol after the time of driving. The Newfoundland and Labrador Court of Appeal quoted earlier Supreme Court of Canada cases which held that: [i]n most cases, moreover, there is good reason to suspect that post‑driving drinking (or just the claim thereof) is an act of mischief intended to thwart police investigators.  All such cases, at the very least, involve a significant degree of irresponsibility and a cavalier disregard for the safety of others and the integrity of the judicial system.  This Court should not encourage or, at the very least, lend legitimacy, to such behaviour. R. v. Benoit, 2013 NLCA 3

REASONABLE GROUNDS AND SECTION 24(2) - PRIOR ENCOUNTER USED TO FORM GROUNDS FOR LATER DEMAND

Officers dealt with Ms. Mellors on a street in New Westminster at 1:00 AM. An officer thought she was far too intoxicated to drive and "just wanted to make sure no one was going to drive home" so he called a cab for her. About 40 - 45 minutes later the same officer saw Ms. Mellors drive by in a car so he stopped her and made a formal breath demand. She was acquitted at trial but on appeal the Court stated that the grounds for the later demand for breath samples were informed by observations made, and his opinion formed, in the first encounter with Ms Mellors. Further, the Court stated that the trial judge ought not to have excluded the evidence of the breath samples as, among other factors, the Grant decision is clear: the taking of breath samples must be regarded as relatively non-intrusive and of low impact on a detainee’s privacy, bodily integrity, and dignity. R. v. Mellors, 2012 BCSC 1357

SECTIONS 7 AND 15 - THE EFFECT OF AN OFFENDER'S ABORIGINAL STATUS ON MANDATORY MINIMUM SENTENCES FOR IMPAIRED DRIVING

Mr. Anderson was being sentenced for his fifth impaired driving offence. The Crown gave Mr. Anderson notice of its intention to seek greater punishment. The mandatory minimum sentence was 120 days imprisonnment. The trial judge imposed a 90 day sentence and the Crown appealed.  The appeal was dismissed:  In the absence of an explanation by the Crown, the inference follows that Mr. Anderson’s aboriginal status was not taken into account when the determination was made to seek the mandatory minimum sentence.  In the circumstances, applying the principles set out in Ipeelee and Gladue, it cannot be said that the Crown’s decision to request a mandatory minimum term of imprisonment complied with the principles of fundamental justice in accordance with section 7 of the Charter. R. v. Anderson, 2013 NLCA 2

BREATH SAMPLE RECORDING - GENERALLY

In jurisdictions where breath samples are recorded, preserve breath sample recordings before they get destroyed. A system should be put in place to ensure the recordings are preserved and retrievable upon request.  The leading 1997 Supreme Court of Canada case of R. v. Vu and La reminded police about the importance of preserving relevant evidence:  

The deliberate destruction of material by the police or other officers of the Crown for the purpose of defeating the Crown’s obligation to disclose the material will, typically, fall into this category [of abuse of process].  An abuse of process, however, is not limited to conduct of officers of the Crown which proceeds from an improper motive … In some cases an unacceptable degree of negligent conduct may suffice.