"McNEIL" DISCLOSURE - ABILITY TO USE IN CROSS-EXAMINATION ANALYZED

The 2009 Supreme Court of Canada case of R. v. McNeil imposed a duty on the police to treat certain kinds of [disciplinary] records as first party disclosure which they must provide to the Crown as part of the fruits of their investigation. The net effect of this is that where the record reflects “serious misconduct” either related to the investigation or where it could reasonably have an impact on the case against the accused, it must be disclosed to the Crown by the police as first party disclosure...

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CERTIFICATE - ERROR ON CERTIFICATE = ACQUITTAL

The certificate filed at Mr. Rosenberg's trial read:

THAT at Julius Richard ROSENBERG (sic), in the Province of Manitoba, pursuant to a demand under Section 254(3) of the Criminal Code of Canada, I did take two samples of breath of a person identified to me as Julius Richard ROSENBERG, ...

Counsel for Mr. Rosenberg argued that the place where the samples of breath were taken was not stated and the Court of Queen's Bench of Manitoba agreed:  Where the Criminal Code provides for a legislative evidentiary shortcut that enables the Crown to prosecute its case against an accused more efficiently by utilizing certificate evidence in place of calling one or more witnesses, the enabling section of the Criminal Code must be strictly construed and the certificate itself must fully comply with the applicable section of the Criminal Code. The certificate of analysis that was admitted into evidence by the trial judge did not state where each sample was taken. Therefore the certificate of analysis ought not to have been accepted by the trial judge as evidence of the blood alcohol count of the accused. R. v. Rosenberg, 2012 MBQB 304

SECTIONS 8,9 10(B) - RIGHTS VIOLATED WHEN PASSENGER DETAINED AT R.I.D.E. CHECK STOP

Ontario Provincial Police were operating a R.I.D.E program check stop and stopped a vehicle in which Mr. Dale was a back seat passenger. He was asked for his name, identification and ran on CPIC which revealed that he was on a probation order which included a not possess/consume alcohol condition.  Mr. Dale had earlier said beer in the vehicle was his and the officer smelt alcohol on his breath after he had asked Mr. Dale to step out of the vehicle. The Court, focusing on the fact that Mr. Dale was only a passenger, acquitted him and in doing so relied on earlier cases that stated that: "Police over-extension of traffic stops, even where police bad faith is not present, involves an unacceptable and serious violation".  R. v. Dale, 2012 ONCJ 692

SECTION 727(1) - NOTICE TO SEEK GREATER PUNISHMENT - PROSECUTORIAL DISCRETION

Amendments to the Criminal Code in 2008 increased the mandatory minimum jail sentences for second and subsequent impaired driving convictions. The Crown's decision to seek mandatory minimum jail sentences was reviewed, but not overruled, in R. v. Gill, 2012 ONCA 607 and R. v. Mohla, 2012 ONSC 30...

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SECTION 8 - HOT PURSUIT

RCMP responded to a 911 call about an impaired driver in a parking lot in Lorette. When officers arrived the suspect, Mr. Knelsen, had locked himself in his semi-trailer and climbed into the sleeper portion. He was convicted at trial and appealed that conviction. The appeal Court reviewed the Supreme Court of Canada's definition of "hot pursuit": "Generally, the essence of fresh pursuit is that it must be continuous pursuit conducted with reasonable diligence, so that pursuit and capture along with the commission of the offence may be considered as forming part of a single transaction...

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