ASAP: Constitutional or Evidentiary Requirement, it depends

Shady Mawad was convicted of over 80. Mawad had argued that the police, in making a demand for his breath and taking the samples violated section 8. The trial judge found that there was a section 8 violation in relation to the making of the demand but admitted the evidence under section 24(2) and convicted Mawad who appealed. That appeal was dismissed: R v Mawad, 2016 ONSC 7589.

Shady Mawad was driving his car. Someone thought he was impaired. They called the police. Officer Guthrie received a radio call at 4:34 am. Guthrie located Mawad at 4:41. After speaking with Mawad and forming a reasonable suspicion, Guthrie made a ASD demand at 4:47 am Mawad produced a fail at 4:53 am. At 4:57 Guthrie arrested Mawad and read his rights to counsel (a minute later) – leaving the scene at 5:29. The arresting officer failed to make a breath demand. At 6:20 the breath technician took custody of Mawad and made the breath demand at 6:26.

Given that the first sample was obtained beyond two hours of the time of driving, at trial the Crown called a forensic toxicologist to “read back” the samples and provide direct evidence regarding Mawad’s BAC at the time of the offence.

Mawad argued that his s8 rights were violated – by the failure to make the demand as soon as practicable and by the failure to take the samples as soon as practicable. The trial judge concluded that the breath demand was not made by the officer as soon as practicable but admitted the evidence under s24(2). The trial judge did not find that the failure to obtain the samples as soon as practicable violated s8. Mawad was convicted. He appealed.

On appeal Mawad argued, inter alia, that the trial judge erred in not finding that the delay in taking the samples violated s8.

With respect to the taking of the samples, Mawad asserted that the failure to take the samples as soon as practicable amounted to a violation of s8. The summary conviction appeal court rejected that notion. The requirement that samples be taken as soon as practicable in section 258(1)(c) is an evidentiary requirement that permits the Crown to take advantage of the presumption of identity. Where the samples are not taken as soon as practicable the Crown loses that presumption. The results are still admissible however. The summary conviction appeal court, citing R v Deruelle, [1992] 2 SCR 663 and R v Newton, 2013 ONSC 644 in support, held:

With great respect, I fail to see how a statutory short cut given to the Crown to prove a charge of “Over 80” against an accused can be elevated to a violation of his or her constitutional rights. [@26]

Mawad is a helpful decision that clarifies the impact and scope of provisions that are sometimes misconstrued. In short, three points summarize the principles elucidated by this decision. First, s254(3) requires that an officer makes a breath demand as soon as practicable upon forming grounds. This provision is the statutory authority that permits the obtainment of breath samples. Failure to comply with that requirement undermines that authority and thus has constitutional implications – a section 8 violation.

Second, s258(1)(c) requires that samples be taken as soon as practicable. This provision is merely an evidentiary assist, however. Failure to comply with this requirement has no constitutional implications – merely evidentiary ones (the loss of the presumption of identity).

Third, the requirement that samples be “provide[d]” as soon as practicable in s254(3) is not one that is imposed on the state. It follows that the failure to obtain samples as soon as practicable has no constitutional implications.


Settled Law

Lam was convicted of driving with an illegal blood alcohol concentration [BAC] – he was over 80. This was his second trial.  The Crown sought to invoke the presumption of identity and attempted to file the certificate of analysis as evidence of Lam’s BAC at the time of driving. The defence opposed the filing of the certificate and argued that the failure of the police to have the approved instrument inspected in accordance with the Alcohol Test Committee’s [ATC] recommendations was fatal to the Crown’s case.

The trial judge accepted this argument and found that the police failure to send the Approved Instrument for annual inspection for 13 months constituted evidence which tended to show that the instrument was operated improperly. The accused was acquitted. The Crown appealed.

The Summary Conviction Appeal [SCA] judge held that the trial judge erred and ordered a new trial. In particular, the SCA found that:

elevating the recommendations of the Alcohol Test Committee that approved instruments be inspected annually to a condition precedent for proper operation of the instrument. This error led the trial judge to conclude that the presumption of identity in s258(1)(c) was not engaged and thus could not be invoked to establish the application’s blood alcohol concentration when he was operating his motor vehicle [@6]

Lam appealed to the Court of Appeal. The Court refused to hear the appeal: 2016 ONCA 850

The Court did so for four reasons.

First, leave from summary conviction proceedings are exceptional. Moreover, there is a need for finality. When all is said and done Lam will have had 2 trials, 2 summary conviction appeals and this journey to the Court of Appeal. [@12]

Second, the grounds of appeal are a mix of law and fact. With respect to the law it concerns only “the application of well-settled principles of law in no need of restatement or refinement” [@13]

With respect to the misapprehension of facts, the facts in this case as so many others, rarely “transcend the idiosyncrasies of the case at hand” [@13]


invocation of the frequency with which alcohol-driving prosecutions populate the lists in the Ontario Court of Justice to fund a claim of wider application proves too much. If frequency of prosecution were the touchstone for granting leave to appeal, leave would become the rule, not the exception in alcohol-driving offences.

Fourth, the substantive issue is in fact well settled law: See St-Onge-Lamoureux, 2012 SCC 57 "(not Jackson, 2015 ONCA 832 as the respondent suggests)" [@15].


Now or Never

Just after midnight in late October 2014 police came across Pociurko standing about 3 metres from his motor vehicle which had obviously just been in an accident. Mrs Pociurko and the couple’s child were also on scene and standing some 10-15meters from the car.

When police spoke with Pociurko he admitted to drinking but denied driving. Mrs Pociurko gave lots of different answers to the question of who was driving. Sometimes she said she was driving, other times her husband, sometimes she said both were driving. Finally she asserted that the accident was as a result of a mechanical failure. None of these versions had any impact on the officer’s legally authority to demand a sample of Pociurko’s breath.

The officer made just such a breath demand of Pociurko who asserted that because he was not the driver he would not blow. The officer let Pociurko know the consequence for refusing to provide a sample. Pociurko again refused and pulled out his cell phone. He told the officer he was calling his lawyer. The officer took the cell phone and placed Pociurko under arrest.

He was convicted at trial of refusing to provide a breath sample. He appealed, unsuccessfully: 2016 ONSC 6691

On appeal Pociurko argued that his refusal was equivocal because he was confused about his obligations. He further argued that his confusion and equivocation was apparent as he was trying to call his lawyer when he was so rudely interrupted by the police. The summary conviction appeal judge disagreed.

Richetti J held that the evidence did not support the defence assertion of confusion. In fact, to the contrary Richetti J found that there was “no confusion about the demand for a breath sample and there was no confusion about Mr Pociurko’s refusal to provide it promptly.” [@24]

Moreover, there is no obligation on police to explain the law. In other words, police did not have to explain to Pociurko that neither his claim of not being the driver nor his desire to speak with a lawyer were reasonable excuses for refusing . The summary conviction appeal judge gave short shrift to the defence assertion that such an obligation exists, instead finding that:

Mr. Pociurko took it upon himself to refuse to do so based on a basis which is not a reasonable excuse for the refusal. Essentially, he now blames the police officer for not explaining the law in much greater detail [@25]

In short, any version of ‘maybe I will later’ in response to a breath demand “constitutes a refusal since it is not providing a breath sample promptly” [@21]


Objective validity: is that sufficient?

Jerzy Czerniawski was pulled over by the police. The stop was lawfully made to check on the sobriety of Czerniawski. The officer asked if he had any alcoholic beverages. Czerniawski said he had drunk four hours ago. The officer noted glossy and watery eyes, Czerniawski’s face was flush and there was a strong odour of an alcoholic beverage on his breath. The officer then said to Czerniawski that “he would be doing a roadside breath test”. The officer then read his demand from his notebook. Czerniawski was then escorted to the officer’s cruiser. The officer demonstrated the functioning of the approved screening device [ASD] and explained that Czerniawski had to provide a suitable sample of his breath. Czerniawski did so. He failed. He was arrested. It was later determined that his blood alcohol content was over the legal limit. He was charged.

At trial Czerniawski sought to exclude those results arguing that the officer violated his rights under section 8: 2016 ONCJ 505. The trial judge set out the officer’s evidence on this point as follows:

I approached him and asked if he had consumed any alcoholic beverages and at that point he admitted to me he was drinking four hours ago. I observed his eyes to be glossy and watery and his face to be flushed…I detected a strong odour of an alcoholic beverage on his breath. At that point I advised him he would be doing a roadside breath test. I subsequently read him and showed him the approved screening device demand from the front page of my notebook. [para 106]

The trial judge found that there was a breach of section 8. He did so on the basis that there was no evidence that the officer formed a “reasonable suspicion” to make the ASD demand as required by section 254(2).

In the case at bar, there is no evidence that Officer Bell formed a reasonable suspicion that Mr. Czerniawski had alcohol in his body while driving a motor vehicle. Therefore, based on the wording of s. 254 (2) of the Criminal Code and on the jurisprudence cited above, I find that Officer Bell failed to follow the required “statutory pathway” in order to make a legal demand to Mr. Czerniawski that he provide a sample of his breath into the approved screening device. Consequently, the obtaining of Mr. Czerniawski’s breath sample into the ASD was illegal. [Para 119].

The trial judge went on to exclude the results under section 24(2) finding there was a serious breach as the accused was “forced” to provide the roadside sample without the proper legal foundation for doing so.

With respect, this ruling is difficult to accept. First, while the officer did not say the “magic words” – that he formed a reasonable suspicion, it seems apparent that not only did he do so, but that he had more than adequate grounds to do so. Indeed, even if he had not subjectively formed the suspicion that the accused had alcohol in his body, objectively the grounds were more than sufficient. In other words, there was a legal basis upon which to make the demand.

Second, there is no need to say the “magic words”: Deitz, 1993 ABCA 24; Nesbeth, 2008 ONCA 579 @19-20; Harrison, 2012 BCCA 339 @13-14.

Third, even if there was a breach the evidence should not have been excluded. The indicia noted were undoubtedly sufficient to support a suspicion. Therefore, even if the officer did not subjectively understand he had the basis to make the ASD demand, objectively he did. In other words, the demand was objectively lawful. The samples could have been lawfully obtained. In this way the breach is a mere technical failure of the officer to properly articulate (or understand) that he had the legal basis to do what he did – something he was lawfully entitled to do.


Realistically Dangerous

At 5:20am Balogun-Jubril [hereafter BJ] like a lot of folks was sound asleep. Unlike other folks though BJ was not tucked snugly into his bed. BJ was in the driver’s seat of his car. The car was off, the transmission was in park but the key was in the ignition. Most peculiar however was the location of BJ’s car. He was stopped in a lane of an exit ramp on a provincial highway. The location of the vehicle and BJ’s deep sleep caught the attention of both the Ministry of Transportation and police. Once conscious BJ exhibited what officers described as significant signs of impairment.

At 6:41am BJ provided his first of two breath samples which confirmed what the officers suspected – BJ’s blood alcohol concentration was well over the legal limit at 150mg of alcohol per 100ml of blood. BJ was charged with driving over the legal limit and impaired driving.

At trial BJ testified. He claimed that at 2:45am as he was driving his car stopped working. A mechanic testified that the vehicle was inoperable, as the oil had leaked causing the engine to seize.

The trial judge found that BJ was not operating the vehicle while impaired but was in care and control of the vehicle. The trial judge then concluded that BJ had “not engaged in an intentional course of conduct that had created a realistic risk of danger.” As a result she acquitted BJ of both charges.

The Crown successfully appealed to the summary conviction appeal court. The summary conviction appeal court held:

that the trial judge committed a palpable and overriding factual error in concluding that there was no realistic risk of danger to persons or property when the police arrived on the scene. Noting the "low threshold" of establishing that the conduct of the accused in relation to his motor vehicle created a realistic risk of danger to public safety, the appeal judge set aside the trial judge's decision and registered convictions on both counts against the appellant.  @para 5

At the Court of Appeal BJ advanced two grounds of appeal: 2016 ONCA 199. First, that the summary conviction appeal judge “was not entitled to interfere with the trial judge’s finding that there was no realistic risk of danger to the public, as deference is owed to findings of fact.”

Second, even if the appellate judge was entitled to interfere with the trial judge’s finding, “the risk identified by the appeal judge is properly characterized as ‘theoretical’ and not ‘realistic’.” @para 6

With respect to the first ground the Court of Appeal held that the trial judge embarked upon the wrong inquiry. The trial judge framed her conclusion as follows BJ had done "all that could be done to reduce the risk".

That of course is not the correct or even “pertinent inquiry. The question the court must determine is whether any realistic risk of danger was created.” @para 12

Juriansz JA writing for a unanimous Court held that:

given the incorrect analysis of the trial judge, the appeal judge was entitled to interfere with her conclusion and to find that the risk was realistic, and not merely theoretical. On the facts found by the trial judge, I would conclude that he was correct in doing so.
While the application of the standard of review is a question of law, this proposed argument has no merit and cannot provide a basis for leave to appeal.  @paras 13-14

On the second ground the Court held that whether the risk was realistic or theoretical is not a question of pure law and therefore could not be advanced on appeal. @para 16

The ONCA refused leave to appeal. @para 17

Although impaired and over 80 cases are some of the most demanding offences to prove from an evidentiary perspective as is clear from the various rulings in the present case, the outcome here is one of pure and simple common sense.

BJ was in the driver’s seat of his car. The car was in a lane on a ramp on a highway. The key was in the ignition. There can be no question that such a vehicle poses a risk of danger to other motorists. Further exacerbating this risk was the fact that BJ was impaired by alcohol and his blood alcohol concentration was nearly twice the legal limit. Nothing other than realistically dangerous about that


Don't believe everything you see on the internet

Daryl Argent posted two ads on Craigslist. The ads indicated that Argent was looking for a woman between the ages of 18 and 30 interested in smoking marijuana and more. Lest there be any doubt about what Argent meant by ‘more’ he thoughtfully included a picture of his genitals and to seal the deal a pic of him holding a bud of marijuana.

To the layperson such an ad may have simply taken at face value: a guy looking for a girl to get high and have sex. To Det Brien Smith of the Child Pornography Unit at the Hamilton Police Service the ad held some potentially hidden meaning. In his training Det Smith had learned that people who are seeking sexual activity with children will often mention the age 18 in their ads. This is because Craigslist does not allow personal erotic ads to specify an age less than 18. Det Smith honed in on Argent’s ad because of his mention of the age 18.

Det Smith posing as a 14year old girl named Carlee responded to Argent’s ad. The response read: pix! im not sure which is bigger…the bud in your hand or your bud! lol!…smoked for first time at my gr8 grad a few weeks ago..yeah! lemme know when you r smokin again some time…luv to try again [para 4]

The two exchanged messages and Carlee revealed that she was 14yrs old, a virgin, in the eighth grade and inexperienced with drugs and sex.  Argent responded with talk of oral sex and condoms for vaginal sex.

Argent was arrested and charged with luring a child to engage in sexual activity. Argent was convicted. He appealed. One of the grounds of appeal was that the trial judge erred in dismissing Argent’s request for a stay of proceedings on the basis of entrapment. The Court of Appeal found no error: 2016 ONCA 129.

Argent argued that the police lacked the reasonable grounds to suspect that criminal activity was taking place. He argued that the fact that the ad specified the age of 18 did not on its own provide the requisite level of suspicion. Moreover, Argent argued that it was ‘Carlee’ and not him who sexualized the content of their communication since she made the double entendre reference to Argent’s bud.

The Court of Appeal rejected these arguments and held that:

[t]he ad included a photo of the appellant’s penis and requested a smoking partner “and more”. The police’s consideration of the use of the age 18 as a flag for potential child abusers was reasonable. This was the lowest age that could be posted.
We do not agree that the officer manufactured the criminal activity by sexualizing the first communication. The photos had already done that. The communications from the officer made it clear from the outset that Carlee was 14, had just graduated from grade 8, was inexperienced sexually, and was under the watch of her mother. The questions posed by the officer were open-ended.  It was the appellant who pursued the discussion of sexual activity. These facts support the officer’s suspicion that criminal activity was underway [paras 12-13]

It is hard to imagine that the Court could have found anything less than sexualized content in Argent’s ad given that he had posted a picture of his genitals along with his request for female pot smoking company. However, an interesting feature in this case is the Court’s acceptance of the fact that the specified age of 18years could in fact mean an age less than 18. Given that the website does not allow ads with the age of less than 18, the court had no difficulty accepting that not everything on the Internet should be taken at face value. Argent wasn’t the victim of entrapment he simply got caught. 


Sexual Assaults are Acts of Power, Aggression and Control

On November 8, 2011 Christopher Edgar forced his way into a woman’s apartment. He put her in a chokehold. He ordered her not to scream. Once he had forced his way in, he locked the door and released the complainant. He started ranting about a police chase and drugs. Edgar was red and sweaty; possibly high - he paced angrily and erratically between the complainant and her front door while making telephone calls. The complainant was terrified. She asked if she could smoke cigarettes and drink tea on the balcony. Edgar allowed it. The balcony was the only place, aside from her front door, where the complainant could possibly go.

When first on the balcony, Edgar told the complainant that before he left, they had to have an agreement – but first, he needed her to come inside and watch him masturbate. The complainant complied. She sat on the couch near Edgar while he masturbated by putting his hands down his pants. He did not expose his penis or touch the complainant. After a few minutes, Edgar asked the complainant when her husband was going to be home. She told him soon.

By this point, Edgar had been in the complainant’s apartment for about an hour. The complainant’s terror had mounted. In fear of being raped or killed, she ran out on the balcony, and dove over the railing. She fell 12 feet to the ground, and broke both of her ankles.  She screamed for help and tried to run away [@ paras 5-6].

Edgar was found guilty after trial of sexual assault. On appeal, he argued that because there was no overt interference with the complainant’s sexual or bodily integrity, the trial judge erred in convicting him.

The Court of Appeal did not agree: 2016 ONCA 120. To commit a sexual assault, it was not necessary for Edgar to have touched or even verbally threatened the complainant. A person’s act or gesture, without words, force or any physical contact, can constitute a threat to apply force of a sexual nature, if it intentionally creates in another person an apprehension of imminent harm or offensive contact that affronts the person’s sexual integrity.  Coupled with a present ability to carry out the threat, this conduct can amount to a sexual assault [see R v Cadden (1989) 48 CCC (3d) 122 (BCCA) and R v Johnson, 2006 CanLII 37519 SCJ)]. 

The Court of Appeal rejected giving Cadden and Johnson a narrow interpretation that required overt acts combined with verbal demands made of the victims. Rather, the Court found that Edgar’s act of masturbation was elevated from an indecent act to a sexual assault because of the surrounding circumstances of sexualized violence, control, and confinement that he created, and to which he deliberately subjected the complainant. The Court of Appeal held that it was those same types of circumstances that informed the decisions in both Cadden and Johnson [@ paras 12-15].

Further, the Court went on to emphasize, as was done in Cadden, that sexual assault is “an act of power, aggression and control, and that a threat to invade the bodily or sexual integrity of another person or to otherwise apply force is itself a hostile act” [@ para 16]. In this case, Edgar had intentionally terrorized the complainant for a prolonged period, in violent and sexualized circumstances, causing her to reasonably believe that he had the present ability to rape or kill her [@ para 16].

The Appeal was dismissed. Viewed in the context of the entire circumstances, Edgar’s acts indeed constituted a sexual assault [@ para 17].


Sexual assault prosecutions are difficult prosecutions for complex reasons. It is an area of criminal law that faces a myriad of legal nuances and engrained biases that are absent from other types of criminalized conduct. The Court of Appeal’s comments in Edgar highlights that the focus in sexual assault cases is largely centred on the integrity and subjective experiences of the complainant, and in this case, the surrounding circumstances which inform those experiences. The sexual integrity of the complainant is a paramount consideration, and the intent is only general. The Court’s reasons in Edgar are very clearly aligned, and properly so, with the Supreme Court’s decision R v Chase [1987] 2 SCR 293.


En-Gendered Arguments on Incest

Section 155 of the Criminal Code prohibits the act of incest. The section reads as follows:

Everyone commits incest who, knowing that another person is by blood relationship with his or her parent, child, brother, sister, parent grandparent or grandchild, as the case may be, has sexual intercourse with that person.

Sexual intercourse is defined in section 4(5) of the Code; it states: 

For the purposes of this Act, sexual intercourse is complete on penetration to even the slightest degree, notwithstanding that the seed is not emitted.

KH was charged with a number of sexual offences including incest all perpetrated against his underage sister. Numerous incidents were alleged which included forced fellatio and several acts of KH penetrating his sister’s anus.

At the close of the Crown’s case, KH brought an application for a directed verdict on the incest charge. KH argued the following:

  1. The purpose of section 155 is to prevent “sexual intercourse between persons who have a blood relationship” in an effort to “prevent genetic mutations that can result from inbreeding” and to protect of vulnerable family members. [at paras 6-7]
  2. The fact that section 4(5) includes the phrase “notwithstanding that seed is not emitted” indicates that what is contemplated is penetration of a vagina by a penis.
  3. That Parliament also enacted (the now unconstitutional) section 159 prohibition against anal intercourse, further supports the defence position on the definition of sexual intercourse.

Barnes J dismissed the application: 2015 ONSC 7760 and held that:

The defence argument falls apart when considered in the context of the second legislative intent, which is the protection of vulnerable members of the family. A definition of sexual intercourse limited to penile penetration of the vagina means that a male can only commit incest if he uses his penis to penetrate the vagina of a blood relation. Under this circumstance, the "vulnerable family member" is only protected from incest if she is female and if the penis is inserted into her vagina. The same female blood relation is not protected from incest if her male blood relation inserts his penis into her anus.
Another consequence of restricting sexual intercourse to the penile penetration of the vagina is that a vulnerable family member cannot receive the protections provided by s. 155 of the Criminal Code simply because he is not female. On the defence theory, if a male places his penis in the anus of a vulnerable family member who is male, he cannot be charged with incest. The protection of vulnerable female family members to the exclusion of vulnerable male family members could not have been the intention of the legislature. [at paras 16-17]

Barnes J’s common sense approach to this issue is in accordance with the principles of statutory interpretation which the court reviewed prior to reaching its conclusions. 


All Talk and No Action

Marshall and Wong were both found guilty conspiracy to commit robbery: 2015 ONSC 4593. There was no evidence that the conspiracy was ever carried out.

As part of a larger police investigation Marshall and Wong’s telephone conversations and text messages were being intercepted. Sixteen of those intercepts were filed as exhibits at trial. A police officer with expertise in coded language and slang testified about some of the words and language used in the recorded conversations. That said the ‘code’ used was neither sophisticated or particularly difficult to understand, essentially Marshall and Wong don’t use the term firearm but instead say ‘it’ or ‘one’ or ‘that thing’ or ‘the girl’.  Justice Code summarized the first of the sixteen intercepts as follows:

The first of the sixteen intercepts is the most important one. The parties agreed that the subject matter of this initial telephone discussion is a robbery. The call was made by Wong and it was received by Marshall on May 8, 2013 at 4:14 p.m. Wong immediately told Marshall that a man is "counting fifteen stacks right now". Marshall clearly understood Wong's reference to "fifteen stacks" and he replied by asking "where?" It is agreed that this exchange about a man "counting fifteen stacks" is a reference to money and I infer, in the context of all the evidence, that it likely means $15,000. Wong then asked Marshall, "you don't thing it, you don't have it?" Marshall replied, "I can get, I'm going for that right now". It is agreed that these cryptic terms -- "thing", "it", and "that" -- in the context of all the evidence, are references to some kind of offensive implement that Wong and Marshall needed in order to carry out the robbery that was under discussion. I am satisfied that these references, which are repeated and added to in the subsequent intercepts, are to a weapon of some kind and that they likely refer to a firearm, although the exact kind of weapon is not an essential element of the offence and it is unnecessary to decide whether it is a firearm or some other kind of weapon at this stage of the proceedings. [@para 9]

Another 15 exchanges took place between Wong and Marshall setting out their difficulties and frustrations as they tried and failed to find a weapon. There are spats between Wong and Marshall as they grow concerned that each is telling others of their score.

Their communications wind down and the two expressed their frustration at not having capitalized on the opportunity: “Marshall stated, "I'm cheesed ... we could've did something with that right here". Wong replied, "I know".” [@para 31]

Ultimately no robbery was ever committed. The only issue at trial whether the offence of conspiracy had been perpetrated.  

Code J stated the essential elements of the offence of conspiracy as follows:

it is now settled law that three essential elements must be proved by the Crown in a conspiracy case: first, an intention to agree; second, the completion of an agreement to commit an indictable offence; and third, an intention to carry out the agreement (which is sometimes referred to as the common design or as an intention to put the common unlawful design into effect [@para 40]

Defence argued “that the evidence disclosed mere talk, discussion and negotiation about a robbery, none of which can amount in law to an agreement.” [@para 41]

Code J rejected this argument and convicted Marshall and Wong. The Court held:

(…) that Marshall and Wong did reach an agreement to rob the man who had been seen counting money. Their agreement was conditional or was premised on Marshall securing a weapon that he had access to and it was conditional or premised on Wong checking with his "girl" in order to learn the present whereabouts of the man. In other words, it was an agreement to rob the man "if it is possible or propitious to do so", as explained in Mills and Root. The two conditions or premises -- concerning the weapon and the man's whereabouts -- related only to the parties' ability to successfully carry out the agreement. These conditions did not detract from the existence of an "overall dominant plan" to commit a criminal offence.[@para 49]

Although 16 intercepts were tendered Code J found that:

By the end of the second intercept, I am satisfied that an agreement had been reached to rob the man who had been seen counting money. The only rational inference from these two discussions between Marshall and Wong is that they were enthusiastically committed to a common goal of acting together in order to carry out a robbery. They assumed that Marshall would and could get his weapon, Wong had made inquiries as to the present whereabouts of the target of the robbery, and they agreed to meet in order to attempt the robbery. There was uncertainty as to the present location of the money but this was simply a contingency related to the ultimate success of the planned robbery. In all these circumstances, I am satisfied that there was an agreement between them to act together and carry out a robbery. [@para 51]

All talk and no action…. Still guilty. 


Drug Recognition Experts are Experts

Carson Bingley was driving his car, poorly. His driving was erratic. He cut off one driver and crossed over the centre line. He nearly collided with another car. Bingley pulled into the parking lot of an apartment complex  and struck another car. The police were called.

Officer Tennant responded. She spoke to Bingley. She noted several things that led her to believe that Bingley was impaired: his zipper was undone; he had difficulty doing it up; he stumbled; he was swaying and uncoordinated; his eyes were glossy and bloodshot; his speech was slurred; he was having trouble focusing. While officer Tennant believed Bingley was impaired, there was no odour of alcohol. An ASD sample revealed a BAC of 16. Officer Jellinek – who is trained and qualified as a “drug recognition expert” (thereby classifying him as an “evaluating officer within the meaning of section 254) – arrived on scene. Standard Field Sobriety Tests were conducted. Bingley failed. Bingley was arrested. Back at the station officer Jellinek conducted an evaluation (as set out in section 3 of the Evaluation of Impaired Operation (Drugs and Alcohol) Regulations, SOR/2008-196). Bingley failed.

A urine sample was obtained pursuant to section 254(3.4). It was analyzed. Carboxy THC (an inactive by-product of THC – the psychoactive component of cannabis), cocaine and Alprazolam were detected in the urine sample.

At trial one of the issues raised by counsel for Bingley, Trevor Brown, was whether officer Jellinek could provide an “opinion” on the issue of whether Bingley was impaired by drug absent a Mohan voir dire. The Crown argued that the statutory provisions permitted such an opinion to be given without the need for such a voir dire. The trial judge disagreed. Bingley was acquitted. The Crown appealed. The summary conviction appeal court judge, Justice McLean, allowed the Crown appeal. Bingley appealed.

A unanimous Court of Appeal dismissed the appeal: 2015 ONCA 439. In doing so, the court offered the following points.

First, contrary to the submission of Bingley (via his counsel Mr Brown) section 254(3.1) is not simply a procedure provision that serves only as a precondition to the making of a demand under 254(3.4).

Had Parliament intended the DRE’s evaluation under s. 254(3.1) to be used solely as grounds for a bodily fluid sample demand under s. 254(3.4), it could have said so expressly. [@39].

In so concluding, the court noted that 254(3.4) is permissive, not mandatory. It follows that it would be illogical and incongruous to interpret 254(3.1) as merely a procedure step toward the obtainment of a biological sample under 254(3.4) when the latter is not mandatory.

Second, the statutory construct of 254(3.1) and related provisions makes it clear that an “evaluating officer” is permitted to provide an opinion on impairment.

Based on a plain reading of s. 254(3.1) of the Criminal Code, it is my view that DRE opinion evidence is admissible to prove the offence of drug-impaired driving, without the necessity of a Mohan voir dire, so long as it is established that the witness is a certified DRE as specified in the Regulations. [@44]

The court continued:

By requiring the DRE “to determine” whether the driver is drug-impaired, s. 254(3.1) requires the DRE to reach a conclusion – that is, to form an opinion – as to impairment. It is implicit that the DRE opinion evidence as to impairment is admissible without the need for a Mohan voir dire, and that the court may consider that opinion evidence when determining whether the offence has been made out. No further statutory provision is required for the DRE opinion evidence to be admitted. This conclusion flows from the wording of s. 254(3.1) and is harmonious with the object and scheme of the legislative provisions and Parliament’s intention.
The detailed scheme in the relevant legislative provisions and the Regulations provides further support for this conclusion. Not all peace officers are entitled to perform drug evaluations under s. 254(3.1). Instead, only peace officers “who [are] qualified under the [R]egulations” are allowed to perform the evaluations (s. 254(1)). Under s. 1 of the Regulations, the evaluating officer “must be a certified drug recognition expert accredited by the International Association of Chiefs of Police.” Furthermore, s. 3 of the Regulations specifies precisely which tests the DRE must perform in conducting the evaluation under s. 254(3.1). By creating this detailed regulatory regime, Parliament has shown that it is satisfied of the science underlying the drug evaluations. [@47-48].

In short, the Court of Appeal concluded that once it is established that an officer is an “evaluating officer” – who by definition is a drug recognition expert – that officer is permitted – on the basis of an evaluation and other evidence – to provide an opinion on whether an accused is impaired by drug.

Bingley is a significant decision. It is the first Court of Appeal ruling on this point in Canada. It is in line with a recent trend in Ontario accepting this approach: see R v Lecomte, 2014 CarswellOnt 10127 @11-13 (CJ); R v Dejesus, 2014 ONCJ 489 @7-9; R v Oum, 2014, ONSC 5131 @14-27.

Bingley also stands as a clear and unequivocal rejection of the argument that a Mohan voir dire is necessary to allow an evaluating officer to provide such an opinion – an argument advanced by Bingley (at both trials) and one accepted by other lower courts.