Impaired Driving NetLetter(TM) by the Hon. Justice Joseph F. Kenkel

Transcription

1 Page 1 Impaired Driving NetLetter(TM) by the Hon. Justice Joseph F. Kenkel Monday, November 9, 2009 Issue 70 A national bi-weekly current awareness service covering recent cases related to the prosecution and defence of impaired driving offences Issues are added Monday morning. HIGHLIGHTS * Ontario -C-2 Amendments upheld as constitutional. (R. v. Powichrowski, KENK/ , [2009] O.J. No. 4424, Ontario Court of Justice) * Saskatchewan - Constitutional challenges to legislation only arise at end of trial if no other issue resolves case. (R. v. Bodnar, KENK/ , [2009] S.J. No. 614, Saskatchewan Provincial Court) * BC - The disclosure battles begin. (R. v. Phagura, KENK/ , [2009] B.C.J. No. 2039, British Columbia Provincial Court) * BC - Are minimum fines an effective sentence for impaired driving?. (R. v. Dibdin, KENK/ , [2009] B.C.J. No. 2041, British Columbia Provincial Court) * Where an accused says he has asthma, but shows no symptoms, are there grounds for a blood demand?. (R. v. Caruth, KENK/ , [2009] A.J. No. 1129, Alberta Court of Appeal) * No need to prove ASD calibration. (R. v. Morton, KENK/ , [2009] O.J. No. 4370, Ontario Superior Court of Justice) * No s.10(b) violation where accused not permitted to call a police officer. (R. v.

2 Page 2 Kernaghan, KENK/ , [2009] A.J. No. 1137, Alberta Provincial Court) * Late ASD calibration does not equal high degree of unreliability. (R. v. Mason, KENK/ , [2009] O.J. No. 4468, Ontario Superior Court of Justice) * Saskatchewan QB - C-2 provisions apply retrospectively. (R. v. Denesiuk, KENK/ , [2009] S.J. No. 637, Saskatchewan Court of Queen's Bench) * Georgia - The denture defence?. * The Listerine defence?. * California's most popular new defence - GERD. * BC - Clown drives into police car. NEW CASE LAW R. v. Powichrowski; KENK/ , Full text: [2009] O.J. No. 4424; 2009 ONCJ 490, Ontario Court of Justice, B.W. Duncan J., October 27, Charter -- S S Presumption of Innocence.

3 Page 3 The first case in Canada to rule upon the constitutionality of the evidence to the contrary provisions of last summer's C-2 amendments has found that they do not infringe the presumption of innocence nor do they violate principles of fundamental justice. In addition to his very thorough analysis on those points, note that Justice Duncan provides a detailed overview of the history of the "Carter defence" and the context of the amendments. 64 In the breathalyzer scheme, particularly section 258, Parliament has made a statement that breathalyzers work that their results are reliable and should be relied upon by the courts. The new provisions at issue here are simply the other side of the same coin - Parliament has now added that certain other evidence, Carter evidence, is not reliable as against that scientific test when conducted under the circumstances specified and cannot, in itself, be sufficient to contradict what Parliament has deemed to be reliable. In short, standing alone there is no air of reality to the Carter defence. 65 In effect, the Applicant's argument is that he has a constitutional right to lead and succeed on what Parliament has declared to be an insufficient or meritless defence. There is no principle of fundamental justice that supports that contention. To the contrary, the authority of Parliament to define defences and the authority of courts to remove from consideration those defences that have no air of reality is well established and has never been doubted. 66 I therefore conclude that the fundamental right to make full answer and defence is not infringed. 67 Closely related to the first point, a second principle is invoked. It is argued that it is a principle of fundamental justice that if the law provides for a defence, the defence cannot be illusory: R. v. Morgentaler [1988] SCR 30; R. v. Hertzig (2003) 177 CCC 3d 449 (SCC). It is argued that the remnants of the evidence to the contrary defence left following Bill C2 are so unattainable that they amount to no defence at all. 68 It is my view that the cases cited stand only for the proposition that where a statute would be unconstitutional but for the saving provision or defence provided, then such defence must be reasonably attainable, otherwise the unconstitutionality is left un-remedied. That is not the case here. They do not support the proposition that the bar for success on a defence must be set so low that it can easily be cleared. There is probably no requirement that the law provide for any defence at all, much less one that is easily attainable.

4 Page 4 69 In any event, I disagree that the defence is unattainable. As discussed above, error in the machine or its operation, if and when it occurs will almost always be apparent on the face of the test record card and readily available to the defence. In addition, the qualified technician can be produced for cross- examination providing opportunity to uncover errors he may have made. Counsel may explore any acceptable avenue by way of disclosure or production from the Crown or present its own evidence, such as the evidence of Dr Krishnan presented here,17 to attempt to raise a doubt. While it may be that the defendant, having explored every avenue, will be unable to meet the requirements of the section and rebut the presumption that is what often happens when a defendant is faced with credible and reliable evidence against him. R. v. Bodnar; KENK/ , Full text: [2009] S.J. No. 614; 2009 SKPC 115, Saskatchewan Provincial Court, D.M. Ebert Prov. Ct. J., October 22, Constitutional Challenge -- Jurisdiction -- Provincial Court. Provincial court judges have no authority to issue declarations so must consider challenges to the constitutionality of legislation in the context of a trial after all other issues have been resolved but have not determined the case and the constitutionality of legislation becomes relevant. Judge Ebert's decision is consistent with recent decisions in other provinces refusing to hear constitutional challenges at the outset of trial. 50 In Martin, MacDonald, Lawson and Vavrishkin the Courts also state that the issue of the constitutionality of the new provisions does not arise unless its resolution matters in an individual case, that is, it will be moot if the Crown's case fails on other issues or if the applicant succeeds on some other defence or if the Court would have a reasonable doubt but for the new provisions. These cases stand for the proposition that any constitutional challenge should be reserved to the end of the trial and only after all

5 Page 5 other possible matters have been resolved. 51 The applicant also argues that an early decision respecting the constitutional validity of these new provisions would be in the best interests of justice. Although one cannot disagree that the determination of the constitutional validity of these provisions is broadly in the interests of justice however it is not in the interest of justice to make that determination in a vacuum, in the absence of both adjudicative and legislative facts or until this constitutional question becomes a live issue at a trial. 52 I conclude that the application should not be heard until a factual basis for this constitutional challenge is before this Court and until its resolution matters in Mr. Bodnar's trial. R. v. Phagura; KENK/ , Full text: [2009] B.C.J. No. 2039; 2009 BCPC 296, British Columbia Provincial Court, J. Challenger Prov. Ct. J., October 6, Over Disclosure. In BC's first post C-2 disclosure case the court follows several OCJ decisions starting with R. v. Gubins that order disclosure of a limited set of records as not clearly irrelevant. The judgment applies the Stinchcombe test to all records requested. 25 On the evidence before me I have no difficulty in concluding that the Datamaster C is a highly reliable machine which is self testing and will alert the technician to any problems with it's function by displaying a status message following which it will abort the testing and produce a test ticket with that status message noted. In principle, in

6 Page 6 order to be an "approved instrument" which produces results upon which Criminal proceedings may reasonably be brought, the instrument must be highly reliable and able to be operated properly by police officers in the course of their day to day duties. I accept that the Datamaster C is able to meet this standard and officers who receive appropriate training are able to operate the machine so as to produce accurate and reliable test results. Parliament has now provided that in the absence of evidence tending to show a malfunction or improper operation of the machine the Crown is able to rely on the face of the breath test tickets as "conclusive proof" of the BAC at the time of the test which is then deemed to be the BAC at the time of driving. 26 Parliament did not say the Crown is entitled to a presumption that the machines and those who operate them are infallible. The amendments themselves speak to the possibility of error or inaccurate results and the same can be said for the QAP undertaken by the Forensic Services of the RCMP. 27 The argument that examination of these records is unlikely to reveal a malfunction or improper operation does not determine whether these records are relevant for the purposes of disclosure. The defense must be given the opportunity to satisfy themselves as to the potential for a reasonable doubt to be raised on the first two elements of the defense which they must now address in evidence. It must be borne in mind that the Defense has no burden to prove a malfunction or improper operation but need only adduce evidence to tend to show same. The question is whether there is a reasonable possibility these records may assist the accused in the exercise of the right to make full answer and defense. R. v. Dibdin; KENK/ , Full text: [2009] B.C.J. No. 2041; 2009 BCPC 298, British Columbia Provincial Court, K.D. Skilnick Prov. Ct. J.,

7 Page 7 October 8, Sentencing -- Fines. 3 This case is illustrative of the problems involved in the sentencing of impaired drivers and with the approach taken in Canada. Under section 255(1)(a) of the Code, a person sentenced for a first offence of impaired driving is subject to a minimum fine of $1000. Section 259(1)(a) also provides for a mandatory driving prohibition of between one and three years. The typical sentence for an impaired driver with no prior record is a fine and a one year driving prohibition. The amount of the fine and the length of the prohibition will typically depend on the circumstances of the offence and the offender. Factors such as the blood alcohol reading, the presence or absence of an accident and the post-offence conduct of the offender are among the considerations that come into play in determining the sentence. 4 The problem with this approach is that a fine and prohibition are often not the best means of addressing the principles of sentencing set out in section 718 of the Code. Specifically, a fine is not the best means of denouncing the unlawful conduct or of deterring it and can send the message that the behaviour is permissible if the offender is financially able to afford it. A fine has no rehabilitative aspect. Nor does a fine address the harm done to the community and its members directly affected by the offence, such as the other members of the motoring public and the police officers who must deal with the intoxicated offender. It is the ineffective manner in which the proposed sentence addresses these concerns that make this situation problematic Many of the same conclusions are reached by the authors Cohen, Plecas and McCormick in their very thorough and informative paper entitled "The Nature and Extent of Impaired Driving in RCMP Jurisdictions in British Columbia: A Review of Police Files" (2009) School of Criminology and Social Justice, University of the Fraser Valley. This article suggests that current sentencing practices are doing little to deter offenders from continuing the practice of driving under the influence of alcohol. No doubt this is due in large measure to the fact that the root cause of the offence is an untreated alcohol problem which robs the offender of the power of choice where consumption of alcohol is involved. 24 It is unclear how a financial penalty alone can address the principal goals of sentencing for this type of offender, especially for first offenders where the primary goals are rehabilitation and specific deterrence. The imposition of a fine does contribute

8 Page 8 somewhat to the goal of reparations for harm to the community, in that it can be applied towards the cost of policing. A sentence for this type of offence should address the root cause of the offending in order to address the goal of rehabilitation. It should also address the making of amends to the victims of the offence, whether it be other motorists directly affected by the impaired driving or the police officers who have to deal with the drunk driver. 25 In the case of this Accused, there are a number of goals of sentencing which must be addressed. First and foremost is the rehabilitation of this offender. Common sense and the collective experience and wisdom of this court suggests that a blood alcohol level of.25 is not indicative of a "social drinker" or of an isolated instance. This also suggests that a problem this severe can not be addressed by the offender's will-power or promise to be good. The jails and cemeteries of this province are filled with those who believed that they could address a serious alcohol problem on their own without help. A sentence for this offender must be accompanied by a probation order containing a term requiring the Accused to participate in an assessment of his alcohol problem by those qualified to do so, followed by an appropriate program. Failure to do so tempts recidivist behaviour, which in the context of this offence may result in disastrous consequences. Fortunately, in this jurisdiction, the Fraser Health Authority is willing and able to assist and work with the Corrections Branch in conducting such assessments and in recommending effective and reputable treatment programs. R. v. Caruth; KENK/ , Full text: [2009] A.J. No. 1129; 2009 ABCA 342, Alberta Court of Appeal, E.I. Picard, K.G. Ritter and J.D.B. McDonald JJ.A., October 21, Over Blood Demand -- Reasonable Grounds.

9 Page 9 The accused provided an ASD sample and registered a "fail". At the station his first blow was deficient. He wa asked if there was any condition preventing him from providing a proper sample and he said, "asthma". He did not show any signs of asthma and earlier he had declined when asked if he needed any medication from his car. The officer made a blood demand and obtained a sample. The result was over 80mgs. The defence applied to exclude the test results submitting that s.254 had not been complied with and that their client's claim of asthma should have been checked by medical personnel before being relied upon by the officer. 18 Given the highly intrusive nature of taking a blood sample, the state must comply strictly with the conditions set forth in the Criminal Code before such a substantial interference is authorized and justified: R. v. Pavel (1989), 53 C.C.C. (3d) 296, 74 C.R.(3rd) 195 (Ont. C.A.). 19 In the circumstances of this case, in order to make a demand under section 254(3)(b), the peace officer must first have reasonable and probable grounds to believe that the accused is or has within the previous three hours operated a motor vehicle while his/her ability is impaired by alcohol, and further, that the officer must reasonably believe the accused may be incapable of providing a breath sample or it would be impracticable to obtain a breath sample. The incapacity or impracticability must be by reason of any physical condition of the person. 20 In R. v. Shepherd, 2009 SCC 35, [2009] S.C.J. No. 35, rendered after the decisions in this case, the Supreme Court of Canada, confirmed that the test described in Bernshaw has both a subjective and an objective component in establishing reasonable and probable grounds; the officer must subjectively have an honest belief and objectively there must exist reasonable grounds for this belief. As stated in Shepherd at para. 23, the peace officer "need not demonstrate a prima facie case for conviction before pursuing his investigation." 21 Whether or not the officer's belief was reasonable is based on "facts known by or available to the peace officer at the time he formed the requisite belief.": R. v. McClelland (1995), 165 A.R. 332 at para. 21, 98 C.C.C. (3d) 509 (C.A.). Individual pieces of evidence are not to be tested; "the question is whether the total of the evidence offered provided reasonable and proper grounds, on an objective standard.": R. v. Huddle (1989), 102 A.R. 144 at para. 9, [1989] A.J. No (C.A.). 22 In this case, Constable Percy relied upon the appellant's statement that he had asthma. As well, Constable Percy relied on his own personal knowledge that asthma

10 Page 10 would prevent a person from providing the deep lung air necessary for the breath testing machine and that a mild asthma attack need not involve symptoms such as wheezing or chest heaving. 23 No authority was cited which has held that the test requires the officer to obtain corroboration of his belief from another source nor was any authority provided which precludes an officer from relying on knowledge gained from personal experiences. As noted by this court in R. v. Yurechuk, (1982), 42 A.R. 176 at 178, [1983] 1 W.W.R. 460 (C.A.), the officer is entitled to rely on the circumstances as understood by the officer at the time, even where it has been established later that the officer was under a misapprehension of facts. R. v. Morton; KENK/ , Full text: [2009] O.J. No. 4370; Ontario SuperiorCourt of Justice, G.M. Mulligan J., October 9,2009. ASD -- Approved Screening Device -- Calibration. This decision includes a summary of all of the cases holding that the Crown need not prove the ASD was actually working or properly calibrated. If the officer reasonably believes the device to be in proper working order that's sufficient. 21 In R. v. Coutts [1999] O.J. No (On.C.A.) Moldaver J.A. discussed the issue of whether or not evidence needed to be called with respect whether or not the screening device was in proper working order or when it had been last calibrated. At para. 20 he stated: Manifestly, where a roadside test is being solely for the purpose of confirming or rejecting a police officer's suspicion that a motorist might be impaired or over the

11 Page 11 legal limit, none of these facts need to be proved. It is sufficient that the administrating officer reasonably believes them to be true. 22 In R. v. Paradisi [1998] O.J. No (On.C.A.)..."The onus was on the accused to lead evidence at trial that there was a "high degree of unreliability with respect to the screening device" at the time that it was administered to the accused. 23 In R. v. Cobbs [2003] O.J. No Chapnick J. confirmed the onus on the accused to prove unreliability. In the case before her it had been determined that the calibration was done outside the mandated 14 day period. As Chapnick J. stated at paragraph 6: The entirety of the evidence, including the testimony of the officer to the effect that had he known, he would have got a new machine, falls far short of showing a "high degree of unreliability" of the roadside screening device. The device registered a failure. At the time, the constable believed the machine to be reliable. It was an approved screening device. The demand was made and complied with by the appellant. The failure of the appellant to pass the test, together with the other indicia of alcohol consumption, justified the officer in requesting a breathalyser test. He was entitled to take the result of the screening device into account to form reasonable and probable grounds to arrest the appellant and make the subsequent demand. 24 In R. v. Weese [2005] O.J. No. 749 (On.C.A.) the court dealt with a situation where the officer had an honest but mistaken belief that the machine had been properly calibrated. The court confirmed the trial judge's findings that the officer's state of mind was both subjectively and objectively reasonable based on what he knew and appreciated at the time. R. v. Kernaghan; KENK/ , Full text: [2009] A.J. No. 1137; 2009 ABPC 304,

12 Page 12 Alberta Provincial Court, P.M. McIlhargey Prov. Ct. J., October 9, Charter -- S. 10(b) -- Right to Counsel. The accused was asked at three different times if he wanted to call a lawyer and he replied, "no". He asked repeatedly to call a police officer who was a friend. At trial he testified that he wanted to speak with the police officer to obtain a lawyer, something he never mentioned at the time. 34 In the matter before me, Constable Urquhart advised the accused of his right to retain and instruct counsel without delay and of the existence and availability of Legal Aid and duty counsel. The obligation was then on the accused to assert that right. Even if, as he testified, his intention was to exercise his right to contact counsel he did not assert that right, nor was he diligent in exercising it. Rather, when the accused was asked specifically on two occasions if he wanted to contact a lawyer, he said no. In further conversations and dealings with the officer regarding the use of telephones, he never mentioned that his intent was to obtain the name of a lawyer. His evidence was that he did this as he did not want to appear argumentative, that he respected the police and that the officer was very abrupt. 35 The accused's explanation is not borne out by the evidence. When initially asked if he had been drinking he experienced no apparent difficulty in providing the officer with false information. When he asked the officer if he could contact Dave Harty, he again had no difficulty in explaining to Constable Urquhart the circumstances of his affiliation with the officer. While it is true that the police over a period of 50 minutes moved this investigation through to its completion, there was no evidence or indication the accused was either confused or mislead by the information provided to him. 36 On the facts before me I am unable to conclude that the accused's right to counsel was breached, on a balance of probabilities, or at all. R. v. Mason; KENK/ ,

13 Page 13 Fulltext: [2009] O.J. No. 4468; Ontario Superior Court ofjustice, G.M. Mulligan J., October 27, ASD -- Approved Screening Device -- Calibration. The officer did not notice the ASD was not calibrated within the 14 days as required by force policy, until after he administered the tests. The officer was therefore entitled to make the demand and perform the ASD test and rely upon the results. Further, there was no evidence of a high degree of unreliability with respect to the ASD. 18 In my view, given the purpose of the roadside screening device and the information available to the officer at the roadside, the officer had the requisite reasonable and probable grounds to request a breath sample. The information available to him at the roadside informed his objective belief and that belief ought not to be impugned by knowledge obtained by him subsequently. In the result I find that there was no breach of the Charter rights of the appellant. R. v. Denesiuk; KENK/ , Full text: [2009] S.J. No. 637; 2009 SKQB 431, Saskatchewan Court of Queen's Bench, P.A. Whitmore J., October 29, Statutory Interpretation -- Retrospectivity. BC, Alberta and Saskatchewan Summary Conviction appeal courts have found the C-2 provisions

14 Page 14 retrospective. Ontario's Superior Court has one decision favouring retrospectivity and one against. NEWS ITEM Georgia - The denture defence? KENK/ A Georgia defense attorney claims that dentures can trap mouth alcohol and skew test readings. No mention made of the procedural and technical safeguards against mouth alcohol in the test process. His blog here: -mouth-alcohol-reconsidered/ NEWS ITEMS The Listerine defence? KENK/ A California attorney says that washing your mouth with Listerine can cause false breath readings. No mention made of the procedural and technical safeguards against mouth alcohol in the test process. See: NEWS ITEMS California's most popular new defence - GERD. KENK/

15 Page 15 "GERD (Gastroesophageal Reflux Disease) is quickly becoming one of the more popular California DUI defenses. This is likely because between 25-45% of our population is affected by this disease...and because it is receiving more public attention. GERD, as well as acid reflux and heartburn, are all medical conditions that can cause any alcohol that is in your system to travel up from your stomach and into your mouth. If this happens just prior to or during a California DUI breath test, your blood alcohol concentration will report a false high result." NEW POSTINGS BC - Clown drives into police car. KENK/ A man dressed as a clown including bright yellow hair drove into a police car in Vancouver. It's alleged he was severely intoxicated. +driving+charges/ /story.html CREDITS The Hon. Justice Joseph F. Kenkel sits in the Ontario Court of Justice. Comments, questions and notes of any decisions of interest in the area of impaired driving may be sent to his secretary at Jean.Sopel@ontario.ca.