New & Notable: What is that little box called again...

Kevin Donald made three mistakes on August 13, 2010.  First, he was driving while he was suspended.  Second, he drove poorly; speeding and driving in an erratic fashion which caught the attention of the police.  Third, he was impaired; his BAC at the time of testing was 160 mg%.
When officer Lonsberry stopped Donald it did not take long to form a reasoanble suspicion that Donald had alcohol in his body.  He was unsteady in his walk and had a strong odour of alcohol coming from his breath.  He ultimately failed a roadside screening and later provided two samples of his breath.
At trial Donald argued, inter alia, that the officer did not have reasoanble and probable grounds because the Crown failed to establish, through the officer that the roadside screening device used was an "approved device".  The officer's evidence on this point was that the device was an "approved device", an "Alcotest".  The officer was able to provide the serial number as well.  The officer was unable, however, to provide the precise description of the device.
The trial judge rejected that argument.  Citing R v Gundy, 2008 ONCA 284 the trial judge held that "the only proper inference to draw from the evidence is that Cst. Lonsberry was using an approved screening device..." [para 26].  The trial judge rejected the Charter motion and convicted Donald: 2010 SKPC 123.  Donald appealed.
Ball J sat on the summary conviction appeal: 2011 SKQB 408.  Ball J agreed with the approach taken by the trial judge and dismissed the appeal:
In this case the trial judge also relied on R. v. Gundy, supra, to draw the inference that the Alcotest device used by Cst. Lonsberry was an ASD under the Regulations.  I find that on the evidence before him the inference drawn by the trial judge was reasonable and consistent with recent judicial authorities [para 24].
DG Mack 

 

New & Notable: Getting the police car to the station

Thusyanthan Selvarajah was driving his Honda on the 401 around 1:30 am. Others were also driving on the 401 and saw the Honda. Those witnesses observed Selvarajah attempt to exit the 401. His attempts were unsuccessful as he exit around 140 km/hr. His vehicle "went over the curb, into the air and crossed both the Warden exit - and entry-ramps, crashing through the latter's guard rail and landing in a field or ditch beyond" [para 4]; [emphasis in original].

 

The witnesses called the police. Shortly thereafter officer Halimi arrived and began to deal with Selvarajah. The officer noted indicia of impairment and arrested Selvarajah for impaired. The demand was made at 2:08 am and the officer left the scene with Selvarajah at 2:09 am. The two arrived at the Toronto OPP detachment at 2:20 am. 

At trial two issues arose: 2011 CarswellOnt 9721 2011 ONCJ 468.  First, whether the Crown could rely upon the presumption of identity as, alleged the accused, the samples were not taken as soon as practicable. Second, whether or not the Crown had proven the accused was impaired.

With respect to the first issue, Green J noted that the argument centred around what the accused alleged was an unexplained 11 minutes - from 2:09 to 2:20. The accused argued that there was no evidence about what transpired during those 11 minutes, whether another detachment was closer and whether the officer took the shortest route. 
Green J rejected this argument.

As said in Vanderbruggen, "there is no requirement that the Crown provide a detailed explanation of what occurred during every minute that the accused is in custody". In any event, an explanation was proffered: the defendant was driven to the OPP detachment. It is due west on the 401. The entire trip consumed only eleven minutes. Massaging Sopinka J.'s famous metaphor in R. v. Morin, [1992] 1 S.C.R. 771 at 791, "[j]ust as the firetruck must get to the fire, so must" the police car get to the station. Further, the first test was taken well within the permitted window of two hours and no risk of prejudice has been suggested. Indeed, Halimi was never cross-examined in this area. In the end, I am satisfied that the police acted reasonably and that the tests occurred within a reasonably prompt time in all the circumstances [para 11].
With respect to the second issue, the accused argued that the evidence fell short. The accused argued that the accident accounted for his behaviour and that his conduct in the breath room belied the allegation he was impaired. Notably, both the Crown and defence submitted that the court could not consider the breath readings; relying on R v Letford, 2000 CarswellOnt 5034 (CA). 

Green J held that despite the accident and the behaviour in the breath room, the totality of the evidence established impairment beyond a reasonable doubt; Green J pionted to the evidence observed at the roadside and the driving evidence.  

Turning to Letford, Green J disagreed that it prohibited reference to the breath readings. Citing R v Haas, 2011 ONSC 4529 and R v Nandlall, 2009 CarswellOnt 4844 (SCJ) Green J explained how the breath results could be relied upon:

To be clear, absent qualified expert evidence relating BAC readings to a defendant's ability to drive (and there is none here), consideration of Breathalyzer test results in the requisite assessment does not permit a trier to speculate as to the qualitative impact of the documented readings on the ability at issue. It confirms, however, that the defendant had alcohol in his system and not only on his breath - a factor (here already conceded by the defence) that weighs in the circumstantial inference-drawing exercise [para 17]; [emphasis added].
DG Mack

 

New & Notable: If it walks like a duck...

Kuldip Dhanjal was convicted of impaired operation.  Dhanjal unsuccessfully appealed that conviction before Miller J sitting on summary conviction appeal.  Dhanjal sought leave to appeal to the Ontario Court of Appeal.  That application was dismissed: R v Dhanjal, 2011 ONCA 666.
In dismissing the leave application, the Court of Appeal commented, albeit briefly, on the evidence and findings of the trial judge - impugned in the Notice of Appeal.
...Contrary to the submission of duty counsel, there was evidence from which the trial judge could conclude that the appellant’s alcohol consumption and its effects were greater than claimed by the appellant. In particular, we note that the appellant stopped to make a left hand turn for a prolonged period and then executed his turn in front of an oncoming car without activating his left turn signal. His car collided with that car. After the accident, the appellant stopped for only a few seconds, claiming that he did not see the other car or its driver although he had collided with it and it was parked nearby.

Finally, it was a cold November evening and he parked his car after the accident with the windows open, an indication that he likely intended to air it out from the smell of alcohol in the car. We add that the evidence of the appellant and his statements to the police gave further support to the conclusion that the appellant consumed more alcohol before the accident than he admitted [paras 5-6]; [emphasis added].

DG Mack 

New & Notable: Logic and Common Sense do Occasionally Collide with Criminal Law

William Pereira was charged with impaired and "over 80".  At trial the breath technician testified.  During his evidence he identified the lot # for the alcohol standard that was used in the approved instrument.  During cross-examination it was elicited that the lot # provided by the breath technician - as recorded in his alcohol influence report - was different that the lot # recorded on the certificate. 
The accused submitted that if the Crown was seeking to rely upon the presumption of identity - section 258(1)(c) - then it needed to prove, inter alia, that the instrument was being operated properly.  The discrepancy in the lot # was evidence, the accused argued, that the instrument was not operated properly.  The trial judge accepted that argument and acquitted the accused.
The Crown appealed: R v Pereira, 2011 CarswellOnt 3208 (SCJ).
On appeal Sproat J commented on the discrepency:
While logic and common sense do not always dictate the result, there appears to me to be only one explanation for the discrepency.  The qualified breath technician testified that he was recording the number for the alcohol standard from a sticker of some sort that was on the Intoxilyzer machine itself.  The only explanation I can think of is the qualified breath technician made a regrettable but human error in writing down the lot number and/or transposing it to the certificate.  I can't think of any scenario in which this error could cast the slightest doubt on the validity of the reading [para 5].
Sproat J noted that the Crown had called the breath technician and therefore was not relying upon 258(1)(g).  Accordingly, this error is not fatal unless it caused some doubt that the instrument was not operated or operating properly.  Sproat J rejected that argument and held:
...the fact that there may be that slight discrepancy in the identified for the standard certainly doesn't raise any doubt that there was an alcohol standard in the machine.  If Parliament intended that in order to invoke the presumption it was necessary for the witness to be able to definitely identify the alcohol standard, Parliament would have said so as it did in s. 258(1)(g) [para 9].
Sproat J allowed the Crown appeal.
 
DG Mack

Pending & Prominent: Retrospectivity of Bill C-2

Samuel Dineley undoubtedly had no idea that he was about to become embroiled in one of the most litigated issues in recent memory and embark upon a legal journey that would take him to the Supreme Court when he jumped a curb in his parent's car and struck a parked car with over 90 mg of alcohol/100 ml of blood in his body. 
In November 2010 the Ontario Court of Appeal allowed the Crown's appeal and held that the amendments to the "Carter" defence - as set out in Bill C-2 - applied retrospectively.  In doing so, MacPherson JA offered the following:
I acknowledge that in support of his argument that Bill C-2 applies prospectively to offences committed on or after July 2, 2008, the respondent relies on Angus v Sun Alliance Insurance Co, 1988 CanLII 5 (SCC)and R v Boucher, 2005 SCC 72.  In both cases, when considering the temporal operation of legislation, the Supreme Court of Canada commented on legislation that has the effect of altering the content of an existing common law defence: see Angus at para. 21 and Boucher at para. 22.  In my opinion, however, read in their entirety, neither case stands for the proposition that legislation which merely alters the evidentiary content of a defence, rather than removing or eliminating an existing defence, compels a prospective application [para 27].
On Thursday the Supreme Court heard the appeal in this matter.  As noted by the Ontario Court of Appeal in October 2010 - when it heard the case - there was then over 3000 cases in Ontario dealing with that issue and dozens of decisions going both ways.  The Supreme Court's ruling will, regardless of what it decides, have significant impact.  More importantly, however, it will resolve this issue - finally.

DG Mack

News: Rivera Leave Application Dismissed

In a recent post I discussed the Court of Appeal's ruling in R v Rivera, 2011 ONCA 225: Comment: Roadside Statements.  In Rivera the Court of Appeal held that utterances at the roadside which are part of the actus reus on a refusal/failure charge are admissible only for the purpose of proving the offence and not for the purpose of impeaching the credibility of the accused.  
This week the Supreme Court dismissed the application for leave to appeal from that ruling.

 
DG Mack

Quotable Quote: A Car is no Place to Hang When you're Drunk!

Chelsea Kelly was convicted by Justice Adams of one count of impaired care and control of a motor vehicle; Kelly appealed her conviction.  In dismissing the appeal, Kane J provides a quotable quote in relation to care or control cases: R v Kelly, 2011 ONSC 2258.
Kane J outlined the salient facts as follows:
The appellant drove her automobile and her girlfriend to a bar on the evening of May 3, 2009. The appellant parked her car at the bar. She and her friend went into the bar and consumed some alcohol. They stayed at this bar for some 3 to 4 hours. The appellant and this friend then left the bar and went with others to a house party where they stayed for between one-half to one hour. The appellant's car had been left at the bar and not driven to the house party. The appellant and her girlfriend left the house party with the intention to walk to the girlfriend's home. The girlfriend, wearing shorts and a tank top, became cold as they walked. It was decided to stop at the appellant's car to warm up. The appellant testified that, after warming up in the car, it was her intention to then walk to the girlfriend's home some ten minutes away from the car.
The appellant used her keys and unlocked her car. The appellant sat in the driver's seat. Her girlfriend sat in the front passenger seat. The appellant placed the keys into the ignition and started the motor. Neither woman wore a seat belt. The two women remained in the vehicle with the motor running for approximately ten minutes whereupon two police officers at 04:08 hours noticed the stationary car with running lights on. Police detected the smell of alcohol from the appellant. The physical actions by the appellant during questioning by police suggested to the officers that she was impaired from alcohol. The appellant was arrested and taken to the police station. The breath analy-sis of the appellant conducted at approximately 05:15 hours were 113 milligrams and 108 milligrams of alcohol in 100 millilitres of blood. A charge under s. 253(a) of care or control of a vehicle was thereupon issued [paras 2-3] [emphasis added].
In convicting the appellant, Adams J accepted the appellant's evidence that she did not intend to drive, but noted that "her intention to drive is not an element of the charge...and not therefore determinative of guilt" [para 35].  The trial judge concluded, as summarized by Kane J on appeal, as follows:
She was in the driver's seat, the car motor was running and the girlfriend's house was merely a few blocks away. The capacity to do so was just a gear shift away. The judge further held that the car could easily have been set in motion unintentionally [para 14].
On appeal the appellant argued, inter alia, that (i) there was no evidence to conclude that there existed a realistic risk that she would change her mind and drive and (ii) that the trial judge’s conclusion that the vehicle could have accidentally or unintentionally been put in drive was unreasonable.
In rejecting these grounds, Kane J, offered the following quotable quote:
Parliament could have limited s. 253(1) to prohibit care or control of a motor vehicle to acts sufficient to create risk to persons or property. This is in response to the appellant's argument that the appellant's actions constituted no such risk as only an intentional or accidental shifting of the gear out of Park would have created such vehicle movement and resulting risk. In fact, movement of this car and the resulting risk to person or property increased with every action of the appellant as she unlocked the car, sat in the driver's seat, inserted the key in the ignition, started the motor and intentionally left the motor running. The risk to person and property increased with these actions. The realization of the risk was but "a gear shift away," whether that shift occurred by accident, mechanical fault or a decision to drive home.
Regardless of risk, the appellant was exercising control of and operating the mechanical, electrical and motor system of the vehicle [emphasis added] [paras 72-73].
 
DG Mack

New & Notable: When is a Refusal Really a Refusal

In the recent case of R v Degiorgio, 2011 ONCA 527 the Ontario Court of Appeal upheld the conviction as found by Justice David Cole. In doing so, the court shed some light on when a refusal is really just that, a refusal.
At 7:32 am a passerby noticed that there was a female slumped over the steering wheel of a car which was running and parked in front of driveway; the passerby alerted the police and officer Fielding attended. Upon arrival the officer found Tammy Degiorgio in the driver’s seat of the vehicle alert; upon speaking with the appellant the officer noted glassy eyes and a strong odour of alcoholic beverage coming from the area of her mouth [para 4].
The appellant denied have consumed any alcohol that day but was confused about where she was [para 5]. At 7:39 am Officer Fielding concluded he had a reasonable suspicion that the appellant had alcohol in her body and made a demand under section 254(2). The appellant responded, indicating she understood but that she was “not blowing into anything” [paras 6-7]. The officer asked the appellant if she understood and she again indicated she did and again indicated that she was “not blowing into anything” [para 7]. After advising the appellant of the circumstances of failing to provide a sample the officer again made the demand and a third time the appellant indicated she understood and was “not blowing into anything” [para 9]. The appellant was then arrested for refusal.
At trial the central issue became whether or not the Crown had to prove that sample could have been obtained “forthwith”. The trial judge convicted the appellant and an appeal was launched, ultimately reaching the Court of Appeal.
LaForme JA, on behalf of a unanimous court began by noting that the trial judge did not make any findings surrounding the issue of the unavailability of the ASD, however, the evidentiary record “supports a finding that an ASD was never available at the scene” [para 15]. The appellant argued, LaForme JA noted, that a section 254(2) demand is not valid where there is no evidence that an ASD could be available “forthwith” [para 22].
Turning to consider this position, LaForme JA noted that the appellant clearly understood the demand yet “immediately” and “unequivocally” refused on three occasions to provide a sample [para 45]. LaForme JA held that if the “demand is otherwise proper and the outright refusal occurs during the ‘forthwith’ timeframe, the accused’s 10(b) rights are not engaged and cannot affect the accused’s liability under s. 254(5)” [para 50]. In so holding, LaForme JA noted a distinction between the present case and R v Grant, 1991 CanLII 38 (SCC) and R v Cote, 1992 CanLII 2778 (SCC) as in those cases the “refusals did not immediately follow the demand; instead, the drivers refused only when presented with the ASD” [para 51].
Put simply, LaForme JA held that there is no requirement that an officer have a “reasonable belief that he or she could ‘make the demand good’ at the time it is made” nor is the Crown required to prove same where the refusal is immediate and unequivocal [para 54].
DG Mack

New & Notable: Roadside Utterances and ASAP

The recent ruling in R v Guenter, [2011] OJ No 2233 is notable for two reasons.  First, it deals with a recent hot topic, roadside statements.  In recent blogs I reviewed the Ontario Court of Appeal ruling in R v Soules, 2011 ONCA 429 [New & Notable: Compelled Roadside Statements] and the decision of Duncan J in R v Parol, 2011 ONCJ 292 [New & Notable/Quotable Quote: Compelled you say...] where Soules was considered.  In Guenter, although Soules is not mentioned - as it had not yet been release - Rutherford J makes the same distinction and point about the breadth and applicability of Soules.
Second, it addresses another recently rejuvenated topic, ASAP in the context of a breath demand.
Peter Guenter was involved in a collision with another vehicle at a T intersection which was controlled by lights.  Another motorist called police to report the collision.  Upon arrival an officer began to speak with Guenter and eventually arrested him for impaired operation.  As part of the grounds for arrest the officer relied upon utterances made by the accused; these included his utterances almost immediately upon the arrival of the officer that his "heart hurts" and that he was the driver.  The accused would later explain that his heart hurt because he hit the car and there was a family in it [para 5].  
In considering the first issue - what, if any use the Crown could make of the utterances - Rutherford J noted that when the utterances were made the police had not yet formulated any belief or grounds about what had occurred or who was involved [para 38].  Rutherford J further considered the applicability of R v White, [1999] SCJ No 28.  On that point he held that there was "nothing in the evidence to suggest that in confirming to Cst. Mathieu that he was the driver of the Pathfinder, Mr. Guenter did so under any subjective belief that he was compelled to do so by the terms of the Highway Traffic Act [para 40].  Accordingly, the utterances were admissible at the behest of the Crown. 
In considering the second issue - was the demand made ASAP - Rutherford J, noted that the demand was made by the arresting officer, after being reminded to do so, approximately one hour after arrest.  This failure, however, was "simple error, inadvertence, and nothing more".  Regardless of this error, however, the Crown had argued that there was a demand made ASAP by the breath technician and accordingly, it need not rely upon that demand [para 33].  Rutherford J noted the decisions cited by the Crown, R v Nassier, [1998] OJ No 2166 (SCJ), R v Dhaliwal, [2005] OJ No 1129 (SCJ) and R v Chilton, [2009] OJ No 3655 (SCJ) and concluded as follows:
In the circumstances of the case before me and in light of these previous decisions in this Court, I see no compelling reason not to find that Cst. Casey's demand that Mr. Guenter provide breath samples constituted lawful demands and suitable preconditions for the taking of the breath samples on which both the certificate tendered and the toxicologist's opinion evidence are based. The breath samples were lawfully taken and the evidence flowing from their analysis is admissible.
DG Mack

New & Notable/Quotable Quote: Compelled you say?

In a recent post I blogged about compelled statements and the case of R v Soules, 2011 ONCA 429. In that blog [New & Notable: Compelled Roadside Statements] I suggested that the ratio of Soules - that compelled roadside statements were not admissible at hte behest of the Crown not even on the issue of grounds - was limited to only "statutorily compelled statements"; it did not limit the use the Crown could make of other evidence obtained during impaired investigation or other utterances. In the recent decision of R v Parol, 2011 ONCJ 292 Duncan J held that Soules indeed does not affect other utterances, even ones made in the context of an accident, unless those were truly a "compelled report".
In Parol Duncan J considered whether two utterances made by the accused during an investigation into a motor vehicle accident were "compelled statements".  The police had attended and found the accused at the scene of an accident.  The officer asked the accused if was the driver and he replied "No English".  The officer then "charaded" the actions of steering a car and the accused said "yes".  The officer then charaded drinking out of a bottle and the accused said "yes" [para 12]. 
In order to find those utterances to be compelled Duncan J held that the accused must establish, on a Charter motion, that (1) he was compelled by statute to provide a report, (2) that the statements were a "report" and that (3) the "report" was given in a honest and reasonable belief he was compelled to do so [para 7].
Turning to consider those issues, Duncan J held - in relation to the second point as follows:
The Court in White made the distinction between the making of a report pursuant to statute and “ordinary police investigation”. Nothing could be more ordinary and natural than a police officer arriving at the scene of an accident and asking who was driving. If the exchange in issue here is considered a “report” then the “dividing line” drawn by the Court in White would be completely obliterated [para 13].
Turning to the third point, Duncan J offered the following quotable quote:
Respect for, or even fear of police may have contributed to his co-operation, but that is not the same thing as answering questions in order to comply with a known or suspected statutory obligation to report: R v Manley[2007] OJ No 5103. I have no doubt that had the situation involved not an accident but, say, an illegally parked car and the officer asked “Is this your car?” the defendant would similarly have answered the question.
I view this application as an attempt at strained re-casting of what occurred into an ill-fitting mould in order to achieve a desired legal end. I reject that attempt and find that the defendant did not make his statements as a result of any belief in a statutory duty to report an accident [paras 19 and 20]. [Emphasis added]. 
 
DG Mack