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, February 16, 2009 Issue 51 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 * Disclosure of test records sufficient, court refuses to permit release of the machine for third party tests. (R. v. Boivin, KENK/ , [2009] J.Q. no 357, Court of Quebec (Criminal and Penal Division)) * 254(2) ASD "same officer" argument considered. (R. v. Miller, KENK/ , [2008] O.J. No. 5570, Ontario Superior Court of Justice) * Curative discharge refused for multiple offences. (R. v. Holmes, KENK/ , [2008] N.B.J. No. 492, New Brunswick Provincial Court) * Police entitled to detain impaired driving suspect who walked away from them. (R. v. Maley, KENK/ , [2008] O.J. No. 5489, Ontario Court of Justice) * Odour of alcohol enough for ASD demand. (R. v. Taylor, KENK/ , [2009] B.C.J. No. 95, British Columbia Provincial Court) * No psychological detention where hit and run driver questioned in her home. (R. v. Bertrand, KENK/ , [2008] O.J. No. 5488, Ontario Court of Justice) * Pre C-2 DRE evidence accepted in glue sniffing case. (R. v. Labelle, KENK/ , [2007] O.J. No. 5616, Ontario Court of Justice)

2 Page 2 * Court terminates "runaway Charter application". (R. v. Wisziak, KENK/ , [2009] O.J. No. 332, Ontario Court of Justice) * Sask CA - limited expectation of privacy in commercial vehicles. (R. v. Nolet, KENK/ , [2009] S.J. No. 40, Saskatchewan Court of Appeal) * Ontario - Use of word "now" in s.10(b) advice at roadside a breach. (R. v. Dean, KENK/ , [2008] O.J. No. 5498, Ontario Court of Justice) * No authority to make ASD demand after officer has subjective grounds to arrest. (R. v. Minielly, KENK/ , [2009] Y.J. No. 3, Yukon Territorial Court) * Arizona enacts "Super Extreme" law to combat drunk driving. * South Carolina introduces increased penalties for DUI. * Connecticut Judge suspended for Drunk Driving. * Justice Committee asked to conduct full review of impaired driving laws. NEW CASE LAW R. v. Boivin; KENK/ , Full text: [2009] J.Q. no 357; 2009 QCCQ 216, Court of Quebec (Criminal and Penal Division),

3 Page 3 the Honourable Serge Francoeur, J.C.Q., January 23,2009. Evidence to the Contrary -- Disclosure -- Approved Instrument. Disclosure by the Crown is complete by the production of the test records and does not extend to the surrender of the approved instrument for testing. The functioning of the instrument is shown in the test records. The court notes that production of the instrument for testing would also require the police to re-certify and re-calibrate every time the machine was returned from a third-party. 5 Le Tribunal refuse cette demande, car rien indique que les étapes de 258(1)c) (ii) (iii) et (iv) pour l'obtention du taux d'alcoolémie n'ont pas été suivis et l'article 258(1) f.1) prévoit que le relevé des résultats de l'alcootest qui est imprimé par l'appareil et qui confirme qu'il fonctionnait correctement, signé et certifié comme tel par le technicien qualifié, fait preuve de son contenu. 6 Comment peut-il en être autrement, pour un alcootest approuvé par un arrêté du procureur général du Canada1 utilisé le 27 septembre 2008, certes pas demeuré inactif depuis. Sans compter, que donner accès à un tiers implique plus que de visualiser l'appareil; ce qui obligerait les services policiers à vérifier après l'expertise l'ensemble de ses composantes et procéder à un nouveau calibrage. 8 La communication de la preuve par la procureure aux poursuites criminelles et pénales est complète par les documents produits et ne s'étend pas à la remise ou possession physique de l'appareil alcootest utilisé lors de l'arrestation; son bon fonctionnement fait l'objet d'une preuve documentaire. R. v. Miller; KENK/ , Full text: [2008] O.J. No. 5570; Ontario SuperiorCourt of Justice, E. Frank J.,

4 Page 4 Approved Screening Device -- Refuse -- S. 254(2). December 4,2008. The defence argued that s. 254(2) required that the same officer who made the ASD demand must determine the sufficiency of the sample. While the wording of s.254(2) does require the officer making the demand to determine the suitability (or here insuitability) of the sample provided, that does not mean that the demanding officer must also administer the test. Here the demanding officer was present at the time of the ASD test and able to determine that the accused's failure was deliberate. On this issue see also: R. v. Padavattan [2007] O.J. No (S.C.J.) R. v. Holmes; KENK/ , Full text: [2008] N.B.J. No. 492; 2008 NBPC 55, New Brunswick Provincial Court, F. Ferguson Prov. Ct. J., December 23, Sentencing -- Curative Discharge. The accused pleaded guilty to impaired driving and dangerous driving offences arising from four separate instances over a three month period. Applying a "strong possibility of success standard" the application was rejected on the evidence before the court. 34 The stakes are high. Judicial error in granting a curative treatment discharge when the test has not been met may result in a real risk that the public will be put in danger by the drinking driver continuing to travel on the highways able to injure, maim, or kill an unsuspecting victim in an instant. R. v. Gerrish [2004] N.B.J. No. 53 (P. Ct.) at paragraphs 40, 66 and 67.

5 Page 5 35 In R. v. MacCormack (supra) Larlee J.A. set out the evidentiary prognosis for success standard to be met for a curative treatment discharge granted. At paragraph 11 she said: "The sentencing judge found that Mr. MacCormack was in need of curative treatment. He was convinced of the bona fides of Mr. MacCormack in undertaking to take treatment, and that there was a strong possibility of the treatment being successful. (emphasis added)... In my opinion the sentencing judge correctly evaluated the criteria in making the order under s. 255(5)." R. v. Maley; KENK/ , Fulltext: [2008] O.J. No. 5489; Ontario Court of Justice, D. Fraser J., January 24, Charter -- S Arbitrary Detention -- S Reasonable Grounds. Police have the authority to detain an impaired driving suspect who tries to walk away from them. Note His Honour's comments about the articulation of RPG at para The power of the police to investigate and detain Ms. Maley is found in the Highway Traffic Act; s. 48 and s These powers are not spent in circumstances found here where the driver of a motor vehicle on a public road is detained immediately after exiting the vehicle. See R. v. Calder paras [2002] O.J. No (Killeen, Ont. S.C.); R. v. Boughen [2002] O.J. No (C.A.). 21 It can't be said that the detention was arbitrary. The police were investigating a

6 Page 6 particular complaint of an alleged impaired driver. The complaint had provenance as the complaint was very fresh and the police knew the source of the complaint, a local gas station attendant. The complaint contained a detailed description of vehicle, gender of driver and location and the vehicle and driver matched that description. 22 The police were entitled to detain her by law and to use reasonable physical restraint to do so. Ms. Maley was walking away from the police and taking her by her elbow was a reasonable form of physical detention in the circumstances. Even if the police did not call for her to stop, I am satisfied that any reasonable person would assume that Ms. Maley knew the police were there and wanted to speak to her. The police therefore made a reasonable assumption that Ms. Maley was trying to avoid them when she walked away and this further justifies the police taking her elbow. 23 Reasonable and probable grounds for belief in alcohol impairment of the ability to drive are to be based on perceived facts. It is frequently a compilation of facts that are too subtle and complicated to be narrated separately and distinctly. To compel a police witness to unbundle the tacts contributing to his belief in impairment should be pressed only to the extent necessary to secure the comfort that the grounds are objectively supported. R. v. Censoni [2001] O.J. No (Hill, J. Ont. S.C.) para. 44. R. v. Taylor; KENK/ , Full text: [2009] B.C.J. No. 95; British ColumbiaProvincial Court, R.D. Morgan Prov. Ct. J., January 13, Charter -- S Reasonable Grounds -- ASD Demand. The odour of alcohol alone is grounds for an ASD demand.

7 Page 7 R. v. Bertrand; KENK/ , Full text: [2008] O.J. No. 5488; Ontario Court ofjustice, D.M. Nicholas J., December 2, Charter -- S Psychological Detention. Police investigated a hit and run crash on a major highway and found among the debris a bumper and a license plate which traced back to the accused's home. There they found a van with a missing bumper and the back plate matching the recovered plate. They knocked on the door of the home and the accused answered. She was naked. She invited the officers in. They asked her to get dressed, she did, then she spoke with them. She was not read RTC as she was not under arrest. She was told she was free to leave and free to ask the police to leave at any time. Later she attended at the station to obtain the release of her car and again spoke with the police, this time making contradictory statements denying driving. The accused was charged some 5 months later. At trial the defence submitted the accused was psychologically detained, but did not call the accused to give evidence on that point. 9 The criteria for psychological detention have been reviewed in R. v. Rajaratnam, [2006] A.J. No. 1373, 397 A.R. 126 and R. v. Moran, [1987] O.J. No. 794, 36 C.C.C. (3d) 225 as follows: A. The language used by the police and specifically, whether the accused was given the choice of conversing with them; B. The stage of the investigation at which the police questioning took place; C. Whether the police had reasonable and probable grounds to believe the accused was committing an offence at the time of the conversation;

8 Page 8 D. The nature of the questioning; E. The accused's subjective belief as to whether he was being detained; and F. The accused's personal circumstances as they may affect his or her perceptions of the questioning. 10 Quite recently, the Ontario Court of Appeal in R. v. Pomeroy, [2008] O.J. No. 2550, [2008] ONCA 521 ruled that the contextual analysis was relevant to both physical and psychological detention. The presence of any compulsion or coercion, such as a demand or direction that interfered with the applicant's freedom or liberty, was deemed by the Court to be a central factor in determining whether any psychological detention occurred. The factors to be considered in a detention analysis were described as follows; A. Whether the Appellant was escorted by a police officer or came himself in response to a police request; B. Whether the police gave a direction or assumed control over the appellant; C. The stage of the investigation; D. The nature of the police questioning; and E. Whether the police had reasonable and probable grounds to believe that the individual had committed the crime being investigated Having reviewed the evidence and the law, I am not persuaded, on a balance of probabilities, that Bertrand's rights were violated either in her home on November 17th or when she voluntarily attended the police station on November 20th. In my view, the totality of the circumstances and its fluidity, the appropriate conduct of police investigating a serious hit and run collision, the cooperation of the accused, and the tact that she knew police would leave if she wanted them to on the first night, do not lead me to conclude that either a physical or psychological detention occurred. Her

9 Page 9 voluntary attendance personally, and without counsel, at the station some three days later does not give rise to any concerns in my mind about psychological detention. Police invited her to speak with them, she chose to do so. There is no other evidence before me. R. v. Labelle; KENK/ , Full text: [2007] O.J. No. 5616; Ontario Court ofjustice, B.E. MacPhee J., November 22, Impairment -- DRE -- Drug Recognition Expert. The accused was found in car or control of a vehicle while sniffing glue from a bag. At trial DRE evidence was accepted on the issue of proof of impairment as well as testimony from a CFS toxicologist. 32 In this particular case Mr. Walker went on to give evidence that to date at the Centre of Forensic Sciences in Toronto he's dealt with 77 cases admitted for analysis by a drug recognition officer. He went on to say that of the 68 cases he could comment on 60 of the analysis made of the substance submitted for toxicological examination, have agreed with the assessment of the drug recognition expert. He indicated that while the program is new and is evolving that, in his view, in the circumstances of this case in reviewing all of the evidence, including the results of the toxicological examination, that he shared and supported the opinion of Officer Carpenter that the accused's ability was impaired by a drug. R. v. Wisziak;

10 Page 10 KENK/ , Full text: [2009] O.J. No. 332; Ontario Court ofjustice, B.W. Duncan J., January 12, Charter -- Procedure. At the trial of a hit and run driver with BAC over 160mgs the defence alleged in a Charter application that the police had conspired with a tow truck driver to entice the accused back into the driver's seat of his vehicle. With no evidence to support their theory, the defence requested an adjournment of the trial to call a further officer and try to ascertain the identity of the tow truck driver. 7 A trial court is not obliged to hear any and all evidence that a Charter applicant wants to call in support of his case, much less grant adjournments for the purpose. It has long been recognized that a court may call upon the applicant to state his case and if it is considered by the court to have no chance of success, to dismiss it without hearing any evidence: R. v. Forsythe [1980] S.C.J. No. 66, 15 C.R. (3d) 280 (SCC). It follows that a court that has embarked on a Charter application may similarly terminate at any stage if and when a lack of arguable merit becomes apparent. 8 In my view this has become a runaway Charter application and at this point has devolved into nothing more than a fishing expedition. The trial should not be further adjourned to permit its continuance. Not only is the prospect of producing evidence in support of the defence theory completely speculative, even if that speculation came to pass, it is now quite apparent that the application can not succeed. R. v. Nolet; KENK/ , Fulltext: [2009] S.J. No. 40;

11 Page 11 Saskatchewan Court ofappeal, G.R. Jackson, G.A. Smith and Y.G.K. Wilkinson JJ.A., January 21, Charter -- S. 8. Given the strict regulatory framework for commercial truck transport the driver has only a limited expectation of privacy. The failure of the occupants to produce proper commercial documents and log books were regulatory violations that justified the search of the truck. The 392 lbs of marijuana found was admissible. R. v. Dean; KENK/ , Fulltext: [2008] O.J. No. 5498; 2008 ONCJ 702, Ontario Court of Justice, G.D. Krelove J., September 29, S. 10(b) -- Informational Component. Use of the word "now" (Would you like to contact a lawyer now?) in standard police s.10(b) advice at the roadside is confusing and was found to breach s.10(b). R. v. Minielly; KENK/ , Full text: [2009] Y.J. No. 3;

12 Page YKTC 9, Yukon Territorial Court, M. Cozens Terr. Ct. J., February 3, Screening Demand -- Refuse. This case finds that after an officer has formed subjective grounds to arrest for impaired, the officer may not demand an ASD test to provide objective confirmation/refutation of that conclusion. The accused refused the demand. NEWS ITEM Arizona enacts "Super Extreme" law to combat KENK/ drunk driving. Arizona has enacted new legislation to combat that state's status as the 6th worst in the nation for drunk driving fatalities. - for BAC's over 80 to 155 sentences range from 10 to 180 days in jail - BAC's over 155 to 199 are termed "Extreme DUI's", minimum sentence 30 days - BAC's over 200 are termed "Super Extreme DUI's", 45 day minimum sentence, 180 days minimum for second offence Note that for BAC's under 199 the court can suspend a portion of the sentence if the offender completes a treatment program. All drivers convicted of DUI or DWI are further required to install interlocks in their vehicles. NEWS ITEMS

13 Page 13 South Carolina introduces increased penalties KENK/ for DUI. South Carolina has also adopted increased graded penalties for DUI offences. Penalties increase at 100mgs and 160mgs. NEWS01 NEWS ITEMS Connecticut Judge suspended for Drunk KENK/ Driving. A Connecticut Judge who drove with over twice the legal BAC sideswiped a police car then when apprehended called the officers "Negro trooper" and "Head Nigger in Charge". The incident was captured on video. Instead of removal though, the state's judicial review council merely issued a 240 day suspension from her duties. EMERGING ISSUES Justice Committee asked to conduct full KENK/ review of impaired driving laws. The Parliamentary Secretary to the Minster of Justice is calling for the Justice Committee to conduct a full review of Canada's impaired driving laws. Topics include lowering the BAC to 50mgs from 80mgs. CREDITS

14 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 Page 14