VIDEO EVIDENCE - CONVICTION UPHELD THOUGH BOOKING AREA VIDEO LOST

Ms. Chaly was acquitted of impaired driving but convicted of refusal at trial. Her appeal, with one ground based on the booking area video being lost, was dismissed: The trial judge found appropriately that the loss of the video was not caused by negligence but by reasonable policies relating to the retention of booking area videos. There was video tape evidence relating to Ms. Chaly’s refusal to provide a sample. The refusal charge turned on that video, not on issues relating to the officer’s credibility. The evidence that is disclosed in the breath room video provides ample support for the contention by the Crown that there was a deliberate refusal to provide breath samples. R. v. Chaly, 2020 ONCA 35

DRIVING IS A PRIVILEGE NOT A RIGHT

Mr. Pawson lost control of the vehicle he was driving and struck and seriously injured a person standing at a bus stop on the side of the road. He was arrested at the scene after his breath sample registered “fail” on an approved screening device and he later blew .14 and .15.  He was convicted after trial and applied for an order staying driving prohibitions imposed on him pending his appeal decision. His application was denied:  Mr. Pawson’s driving record demonstrates he is someone who is prepared to ignore the rules of the road, thereby putting others at risk, and who takes for granted that driving is a privilege not a right. R. v. Pawson, 2020 BCCA 94

SPEED ALONE = DANGEROUS DRIVING

Although not an impaired case, this Supreme Court of Canada decision shows that speed alone can amount to Criminal Code dangerous driving: Momentary excessive speeding on its own can establish the mens rea for dangerous driving. A reasonable person would have foreseen the immediate risk of reaching a speed of almost three times the speed limit while accelerating towards a major city intersection. Mr. Chung's conduct in these circumstances is a marked departure from the norm. R. v. Chung, 2020 SCC 8

RELEASE - CORONAVIRUS/COVID-19

A case dealing with the "new situation in relation to the Coronavirus which has developed in the past couple of weeks" has been released. The accused is facing drug trafficking charges and bail was initially denied. He brought a bail review application and was released:

This brings me to the second material change, the current situation with the Coronavirus.  As I have noted, the tertiary ground requires a court to consider all of the circumstances. In my view, the greatly elevated risk posed to detained inmates from the Coronavirus, as compared to being at home on house arrest is a factor that must be considered in assessing the tertiary ground. R. v. J.S., 2020 ONSC 1710

SENTENCE - IMPAIRED OPERATION SENTENCE INCREASED

Mr. Mitchell had two prior impaired driving offences (including one for impaired causing death) and when the trial judge sentenced him he received the minimum 120 day jail sentence. The Crown’s appeal in R. v. Mitchell, 2020 YKCA 2 was allowed:

The sentence does not give sufficient weight to the demands of denunciation and deterrence and discounts the significance of the prior conviction for impaired driving causing death. The custodial sentence imposed on Mr. Mitchell is increased to nine months and the driving prohibition to which he is subject is increased to four years.