SECTION 7 - BREATH SAMPLE RECORDING ISSUE DOES NOT LEAD TO A JUDICIAL STAY

Mr. Mansingani was stopped by police in the north end of Toronto, arrested and taken back for breath samples. At trial he alleged that his s. 7 Charter right was breached because the police deliberately failed to videotape the initial “quality assurance checks” of the Intoxilyzer, as well as the operation of the Intoxilyzer during the two tests.  Instead, the videotape frame was focused solely on Mr. Mansingani who was seated to the left of the Intoxilyzer.  As a result, it captured only a small portion of the Intoxilyzer’s left side and an equally small portion of the operator’s left side.  If the camera angle had been moved farther to the right, it was argued that that the video frame would have captured more of the front of the Intoxilyzer and more of the operator who was seated at the machine. The trial judge dismissed the Charter argument and the appeal court agreed: [The Court is] simply in no position to decide the relevant issues based on the existing factual record.  Whether the police decision, concerning changing or not changing the angle of the camera, was deliberate, negligent, pragmatic or principled, is simply a matter of speculation on this record. Furthermore, the degree of prejudice caused to the defence by this decision or non-decision is equally speculative. R. v. Mansingani, 2012 ONSC 6509

SECTION 7 - BREATH SAMPLE RECORDING ISSUE RESULTS IN A JUDICIAL STAY

Mr. Richard was arrested (in a manner that the Court concluded was excessive and a breach of his s. 7 Charter right) and taken for breath samples.  The breath sampling was recorded but the DVD recording played at court ended about 14 minutes prior to Mr. Richard being taken out of the breath room and did not include a recording of the second breath sample. Whether it existed and was not preserved or was not recorded in the first instance was unknown.  In the absence of any explanation and having unreliable evidence in regard to the use and operation of the recording equipment, the Court was satisfied there was at least unacceptable negligence associated with the loss or failure to preserve evidence which it believed to be relevant. The Court found a breach of Mr. Richard's s. 7 Charter right and, combined with the excessive force finding, ordered a stay of his impaired and exceed .08 charges. R. v. Richard, 2012 ONCJ 694 

PARKING LOTS - GENERALLY

Police officers need to consult provincial legislation for the definition of "highway". Some provinces, for example British Columbia, include in the definition of "highway" parking lots that the public are invited to park in. Understanding how to properly conduct parking lots stops is essential with respect to impaired driving investigations.  It probably comes as no surprise that Statistics Canada data states that "impaired driving incidents peak shortly after bars close". Statistics Canada, Impaired Driving in Canada, 2011 

SECTION 9 - PARKING LOT STOP RESULTS IN ACQUITTAL

On October 18, 2009, RCMP officers were conducting a routine patrol. While driving near the Bella Vista Hotel in Humboldt, Saskatchewan they observed Ms. Lux's motor vehicle move in an uneventful manner along the parking area adjoining the hotel. They stopped the vehicle and the main officer's incident report stated the purpose of the stop was to check for a driver’s licence and vehicle registration. The Saskatchewan Court of Appeal concluded that when the words of Saskatchewan's Traffic Safety Act are read in their entire context and in their grammatical and ordinary sense harmoniously with the scheme and object of the Act, they do not authorize peace officers to conduct random stops on private parking areas.  R. v. Lux, 2012 SKCA 129

SECTION 9 - PARKING LOT STOP RESULTS IN CONVICTION

On March 11, 2011 at 2:50am, Ms. McClelland was seen driving in the parking lot of JJQ’s, a bar/pool hall in Mississauga and she was stopped by police.  The Ontario Superior Court confirmed that  it is now fairly settled law in Ontario that the Ontario Highway Traffic Act does not apply to private parking lots. However the police were not acting under the statutory authority of that Act in Ms. McClelland's case. The reason the accused was pulled over initially was because she drove her car to another parking spot when the police car pulled up behind her. The evasion, combined with the fact that she was outside a bar, after last-call closing hours, is a reasonable cause for suspicion. R. v. McClelland, 2012 ONSC 7207