Monthly Archives: April 2014

A vice-principal at the accused’s school is a “person in authority” in relation to the accused’s statements on drug charges

R. v. Ermine 2014 SKPC 67 – as this case is out of the Saskatchewan Provincial Court, it has no binding effect, but it is interesting because of the principles discussed in it.

Drugs were found in a school locker shared by the accused and another student. When the accused was asked to remove her belongings from the locker and she took the purse containing the drug, the other student was excused.  The accused, however, was taken to the office where the vice-principal began to question her. The vice-principal sat behind his desk and the accused sat in a chair on the other side of the desk. He then began asking the accused questions. It was at this point that the witnesses begin to give some divergent testimony as to what occurred. The vice-principal said that he questioned the accused in his office for about an hour. She was upset and crying. He asked her if she was selling the drugs at school. She acknowledged that she was but that this was the first time that she had done this. He asked her where she got the drugs and she said from a family friend. He was not yelling at the accused and he denied threatening the accused, making any promises to her, or saying anything by way of an inducement to get her to talk.

The vice-principal said that his normal practice is to interview the student and then decide if the police should be called. In this case, he said that after the accused admitted selling at school, he told her he was going to call the police. This interview occurred on a Friday and it was his recollection that he called the police on the following Monday. After the interview was completed, he let the accused go but kept her purse and the contraband he had located and put them in the school safe until an officer could come and get them. This discussion in the vice-principal’s office was not videotaped or audiotaped and no written statement or verbatim accounting of the questions asked and the answers given were created. At the end of the questioning, the vice-principal made some notes of what he recalled was said, but by his own admission, there were a lot of questions and answers that he did not make note of. He admitted that the length of time that had passed from the meeting in his office until his testimony at trial had affected his memory.

The accused gave a somewhat different version of what took place in the vice-principal’s office. She testified that once the vice-principal found the drugs in her purse, he told her to come to his office. She went to the vice-principal’s office with him and another teacher because she did not feel that she had a choice. In the office, the vice-principal sat behind his desk, she sat in front of his desk and the other teacher sat in a chair by the door. The vice-principal did not tell her she could call her grandparents or anyone else, that she did not have to say anything or that she could leave at any time. Instead, he just started questioning her. The accused said that she was questioned by the vice-principal in his office for over an hour. He kept asking her if she was selling drugs at school. She kept denying that she was selling. He asked her where she got her drugs from but she refused to answer. She got up to leave a couple of times and the vice-principal told her to sit down. The other teacher was sitting by the office door so she sat down as she did not think she could leave. The vice-principal threatened to call the police a number of times if she did not answer his questions. He said that she would spend the weekend in Pinegrove, meaning the Correctional Centre for Women. The accused was getting tired, she was scared that she would end up going to Pinegrove and she wanted to go home. She thought that the only way that she would get out of the vice-principal’s office and not end up in jail would be to tell him what he wanted to hear. She did not feel that she had any other options. As a result, she told the vice-principal that she was selling and where the drugs had come from. It was only then that he let her leave, but told her she was suspended from school for three days. He also kept her purse and its contents. The only thing he gave back to her before she left was her cell phone.

The female student was subsequently charged with possession of cannabis marihuana for the purpose of trafficking contrary to s. 5(2) of the Controlled Drugs and Substances Act and further, that she had possession of hydromorphone contrary to s. 4(1) of the Controlled Drugs and Substances Act. The question on the voir dire was whether the statements the accused made to vice-principal in his office, in effect a confession, were admissible as evidence in the trial proper. These statements are governed by the confessions rule. This rule states that:

No statement made out of court by an accused to a person in authority can be admitted into evidence against him or her unless the prosecution shows to the satisfaction of the trial judge that this statement was made freely and voluntarily.

The Honourable Provincial Court Judge D.E. Labach said there was an evidentiary burden on the accused to show that there was a valid issue for consideration in that when the accused made the confession, she believed that the person to whom it was made was a person in authority. A person in authority is generally someone engaged in the arrest, detention, interrogation or prosecution of the accused. When one thinks of a person in authority, what immediately comes to mind is a police officer or Crown prosecutor. However, there is no catalogue of persons who are automatically considered “persons in authority” solely by virtue of their status. While these traditional examples will usually be considered persons in authority, so too will persons whom the confessor perceives to be an agent of the police or prosecuting authorities, allied with the state authorities or acting on behalf or in concert with the police or prosecuting authorities.

In this case, said the Judge, the accused had met the evidentiary burden. She testified that despite the fact that the vice-principal had already found the marihuana in her purse, she still had to go to his office where he questioned her behind closed doors for over an hour. Throughout the questioning, he was adamant that they were going to get to the bottom of this and that he needed to know if she was selling at school and who she got her drugs from. She tried to leave and he told her to sit down. She denied selling drugs at school more than once but he would not accept that answer. He made it clear to her that if she did not admit that she was selling and who she got her drugs from, he would call the police and she would spend the weekend in jail. He suggested it would go better for her with the police if she cooperated with him and later he made it clear to her that given the quantity of drugs she had, he was going to call the police and pass that information on to them. She was scared about going to jail for the weekend and felt that her only option to get out of the office was to tell him what he wanted to hear. This was some evidence that the accused believed the vice-principal was acting as an agent of the police or in concert with them sufficient to shift the burden to the Crown.

The Judge said, in this case, the vice-principal had found drugs and drug paraphernalia in the accused’s purse before he ordered her to his office for questioning. He had a basis to suspend her from school and to report the contraband to the police. He kept the purse, the drugs, and the drug paraphenalia. He did not have to do anything more than give the police the items he seized, provide a statement to them, and let the police investigate and lay the appropriate charges. Instead, he chose to question the accused further, so the only inference the court could draw was that the vice-principal was attempting to get information to give to the police to justify a more serious trafficking charge.

Accordingly, considering all of the evidence, the Judge concluded that the vice-principal was acting as a person in authority vis-a-vis the accused and the court was not satisfied that the confession made by the accused to the vice-principal was voluntarily made by her and the Judge was concerned that it was not reliable. As a result, the accused’s statements made to the vice-principal in his office were not admitted as evidence on the Charter voir dire or the trial proper.


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Filed under Acting as an Agent of the State, APA Cadets

Officer’s policy to wait 15 minutes before administering the ASD meant sample of breath was not taken “forthwith” as required by ss. 254(2)(b) CC

R. v. Lomenda 2014 SKQB 77 – this case was an appeal by the defence from a conviction of driving while his blood alcohol content exceed 80 milligrams in one hundred millilitres of blood. He appealed that conviction on the basis that evidence obtained as a result of the use of an approved screening device (an “ASD”) pursuant to s. 254(2) of the Criminal Code should have been excluded, as the sample of his breath was not taken “forthwith” as required by ss.254(2)(b).

The officer stopped the vehicle to check the accused’s driver’s licence, vehicle registration, and sobriety. The officer approached the driver’s side window, and asked the driver for his driver’s licence and registration. The officer put his head into the driver’s window, toward Mr. Lomenda, and asked him if he had been drinking alcohol. Mr. Lomenda responded: “Just one”. The officer said Mr. Lomenda was looking sleepy and asked whether he had more than one drink. Mr. Lomenda answered “no”, and when asked why his eyes were red, replied: “My eyes are always red”.

The officer asked him to step out of the vehicle, and to come back to the space between the two vehicles. He then asked Mr. Lomenda, further, about his drinking, and Mr. Lomenda responded: “I had one about 15 minutes ago”, and then denied drinking other alcohol that day. When asked if he was feeling ill, he said he was “not feeling great”, and, when asked about medication, said he was taking dilantin. Mr. Lomenda further admitted that he was drowsy. The officer told Mr. Lomenda to come with him to the police vehicle to take a roadside test. There was a brief discussion about whether Mr. Lomenda had taken an Approved Screening Device (ASD) test before and then the officer read the ASD demand to Mr. Lomenda.

Mr. Lomenda said he understood the demand. The officer then asked: “You said you had your last beer 15 minutes ago, could it have been sooner?” Mr. Lomenda responded: “Well, possibly, I don’t know, I wasn’t timing it.” The officer then said he was going to wait 15 minutes. Mr. Lomenda told the officer that he was at his parents’ place and that he “had more than one”. When the officer suggestted he looked sleepy, Mr. Lomenda said: “My eyes are always red”. The officer then asked: “How many did you have?” Mr. Lomenda responded: “About four over a two hour period”. The officer then asked when his last drink was, and Mr. Lomenda said: “Forty-five minutes before you stopped me.” The officer presented the ASD to Mr. Lomenda approximately 13 minutes after the demand was read and a fail reading was obtained approximately one minute later.

The officer testified that it was “standard procedure” to wait 15 minutes before taking the ASD test due to the fact that he thought it necessary to observe the accused for that period, to ensure that he did not burp or regurgitate alcohol. He was concerned about obtaining a false positive result due to the presence of mouth alcohol and he was sceptical about whether Mr. Lomenda, like others he had stopped in his career, accurately recalled when his last drink was and believed that Mr. Lomenda’s last drink could have been less than 15 minutes before being stopped.

The Trial Judge originally ruled in this case that the officer’s subjective belief that it was necessary to wait 15 minutes from when he came to believe Mr. Lomenda had alcohol in his body, to avoid a false positive reading on the ASD, was reasonable because: (1) Mr. Lomenda admitted that it was possible he had his last drink less than 15 minutes before and further admitted he wasn’t keeping track of when his last drink was; and (2) the officer’s scepticism that Mr. Lomenda accurately recalled when his last drink had been was well founded as, during the waiting period, Mr. Lomenda changed his version both on how much he had consumed that day -increasing this to four over a two hour period – and on how long it had been since his last drink – increasing this to forty-five minutes before he was stopped.  As such, the Trial Judge ruled the officer was justified in waiting a total of 15 minutes before administering the ASD.

The appeal Judge in the SKQB said it is clear that a police officer is entitled to wait 15 minutes if the delay is reasonable or justified. In particular, the officer can delay if there is evidence which leads him to conclude that the motorist consumed alcohol within that period: see R. v. Bernshaw, [1995] 1 S.C.R. 254, [1994] S.C.J. No. 87 (QL), at para. 70. It does not follow, however, that it is acceptable to wait 15 minutes in every case. The SKQB cited Bernshaw:

In my view, a police officer cannot delay the taking of a breath sample, when acting pursuant to s. 254(2) of the Criminal Code, unless he or she is of the opinion that a breath sample provided immediately will not allow for a proper analysis of the breath to be made by an approved screening device. The officer is not required to take a sample that she or he believes is not suitable for a proper analysis. The expression “proper analysis” incorporates an element of accuracy…. If there are facts which cause the officer to form the opinion that a short delay is required in order to obtain an accurate result, I think that the officer is acting within the scope of the section in delaying the taking of the breath sample. In such a case, as I indicated earlier, I do not think that it matters whether the officer postpones making the demand or postpones administering the test after having made the demand.

The SKQB viewed that the learned trial judge’s conclusion as to the reasons that the officer waited 15 minutes before administering the ASD disclosed a palpable and overriding error. The officer’s evidence was clear and he repeatedly confirmed that he decided to wait 15 minutes due to the fact that he thought it necessary to observe Mr. Lomenda for that period, to ensure that he did not burp or regurgitate alcohol, and he continued to wait the 15 minutes even after being told Mr. Lomenda did not have a drink for 45 minutes. The SKQB also said that the officer did so because he does not trust motorists in general – as opposed to Mr. Lomenda in particular – to accurately report when they last had a drink, and that mouth alcohol might also be present for that reason.

With respect, said the Honourable B. Barrington-Foote J. of the SKQB:

“It is my view that the ASD was not administered forthwith. [The officer] had no reason to and did not believe that Mr. Lomenda had burped or regurgitated alcohol. Indeed, he did not give evidence that he suspected that mouth alcohol might be present. Rather, he delayed because he concluded that the only way to know was to wait 15 minutes, and observe Mr. Lomenda throughout, and because any motorist might have had a recent drink, and lie about it.”

The Judge said that was not sufficient to meet the standard established to justify a delay based on the “exigencies of the equipment”. There have to be “facts which cause the officer to form the opinion that a short delay is required in order to obtain an accurate result”. In this case, the officer did not form such an opinion on the basis of the facts. He pursued a standard practice that he generally pursued, based on his understanding that the proper procedure was to observe the motorist for 15 minutes to ensure he did not burp or regurgitate, and his distrust of motorists in general. If a police officer can wait 15 minutes for those reasons, he or she would be entitled to do so in every case. That is not the law. Such a conclusion would be inconsistent with the requirement for immediacy which is the basis for the constitutional integrity of s. 254(2).

Accordingly, the SKQB found that Mr. Lomenda’s rights pursuant to ss. 8, 9 and 10(b) of the Charter were infringed as a result of the failure to administer the ASD forthwith and the court concluded that the evidence must be excluded, as its admission would tend to bring the administration of justice into disrepute. The defence appeal was allowed and given that there was, absent the Intoxilyzer evidence, no evidence to support a conviction, the judge directed that a verdict of acquittal be entered.

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Where a police officer cannot lawfully arrest an accused based upon an arrest warrant in another jurisdiction because the warrant was not endorsed pursuant to s. 528 of the Criminal Code, the fact of the outstanding warrant cannot provide reasonable grounds for an arrest under s. 495(1)(a) of the Code.

R. v. Marges 2012 YKTC 102 – this case out of the Yukon discussed several issues that should be of interest to both police cadets and experienced officers in regards to a warrant of arrest. The testimony leading up to the vehicle stop will not be discussed in this post, but suffice it to say that the Judge found that the vehicle stop itself was lawful.  Following the vehicle stop, the officer asked the driver, Mr. Marges, for his driver’s license and the vehicle registration and these were provided to him. The officer could smell liquor in the vehicle and Mr. Marges stated that he had consumed three beers. Thus, the officer formed the opinion that he had grounds to make the approved screening device (“ASD”) demand. As he did not have an ASD with him, the officer did not make the demand at that time. The officer asked dispatch to query Mr. Marges’ driver’s license and within a minute, this information was provided to the officer.  In addition, dispatch told the officer that Mr. Marges had an outstanding warrant for his arrest in Saskatchewan on a charge of possession for the purpose of trafficking and that Mr. Marges was also on a Recognizance out of Saskatchewan, with several terms, including that he stay within 100 km of his residence in Newfoundland, that he abide by a curfew between 11:00 p.m. and 7:00 a.m., and that he abstain from the use of alcohol.

The officer testified that he asked dispatch to contact the RCMP in Saskatchewan and find out whether they wished to have the warrant “extended”. Dispatch told the officer that the warrant indicated that it was radius Saskatchewan only, and CPIC contained no further information. Dispatch contacted the RCMP in Saskatchewan to enquire further into their intentions, and the result was they did not wish to “extend” their warrant.  The officer asked Mr. Marges about the outstanding warrant for his arrest out of Saskatchewan and Mr. Marges stated that it was for having weed in his possession about three years before.  Subsequent to this, the ASD had arrived, so the officer gave Mr. Marges the ASD demand and administered the ASD. This occurred approximately 21 minutes following the initial vehicle stop. A “Warn” reading was indicated, so the officer advised Mr. Marges that his driver’s license would be suspended for 24 hours and the vehicle would be impounded. The officer asked that Mr. Marges and the two passengers wait outside the vehicle while he completed the paperwork for the suspension and the impoundment. Mr. Marges believed that he was being detained at this time only for the purposes of waiting until the ASD-related paperwork was completed. While the officer was doing the paperwork for the suspension and the impoundment, he received a further call from dispatch indicating that the Saskatchewan RCMP had changed their minds and now wanted to have Mr. Marges arrested and held overnight. This information came about approximately 27 minutes after the initial vehicle stop.

The officer testified that he believed that he had grounds to arrest Mr. Marges based upon the information about the warrant relayed to him by dispatch after the contact with the Saskatchewan RCMP. He stated that he believed that the warrant to arrest Mr. Marges was in effect in the Yukon and that he had the jurisdiction to arrest and hold Mr. Marges on it. The officer provided Mr. Marges his right to counsel and police caution, and Mr. Marges stated that he would like to speak to a lawyer. During the drive back to the holding cell, the officer asked Mr. Marges some questions regarding the circumstances of the warrant and Mr. Marges told him it was in regard to 20 lbs of marihuana. Once back in the holding cells, the officer conducted a more thorough pat-down search of Mr. Marges and found three marihuana joints, 1 oz of cocaine in Mr. Marges’ jacket pocket, half an ounce of MDMA, a marihuana grinder, a cell phone, and $195.00 in cash. Mr. Marges told the officer that the jacket was not his.

Counsel for Mr. Marges argued that he was arbitrarily detained. The first prong of the argument was that there was a 15 – 21 minute delay between the time that the officer formed the suspicion Mr. Marges was operating a motor vehicle after consuming alcohol, and the demand being made. Mr. Marges was not free to leave the scene and was not told why he was being kept there. Section 254 of the Code requires that the ASD demand be made forthwith after a police officer has a reasonable suspicion that the operator of a motor vehicle has alcohol in his blood and a failure to comply with the forthwith requirement constituted an arbitrary detention. Defence counsel also argued that his arrest on an unendorsed warrant from Saskatchewan was unlawful as it was not in force within the Yukon and none of the grounds for a warrantless arrest set out in s. 495 of the Code were applicable. At most, defence counsel argued that the officer had the basis for an investigative detention of Mr. Marges while he took further steps to obtain additional information regarding the basis for the warrant and whether the Saskatchewan RCMP in fact intended to take the required steps to execute the warrant in the Yukon.

Crown counsel, on the other hand, submitted that the arrest of Mr. Marges was lawful, citing the provisions of s. 503 of the Code in support of this position, stating that it is implicit in this section that there is a power of arrest. In the alternative, Crown counsel submitted that the provisions of s. 495 authorized the arrest of Mr. Marges.

Defence counsel also submitted that the search of Mr. Marges in which the drugs were found was unlawful as it flowed directly from his unlawful arrest, and that that his s. 10(a) and (b) Charter rights were breached because he was not promptly informed of the reasons for his detention and he was not informed of the right to speak to legal counsel and/or provided the opportunity to do so without delay.

According to the Judge, with respect to the impaired driving investigation, it is clear in law that s. 254 of the Code requires that both the demand and the provision of the sample be made forthwith upon the officer forming the suspicion that the operator of a motor vehicle has alcohol in his system. While a delay in either making the demand or in administering the ASD may be justified, it must be reasonably necessary in the circumstances. In the present case, the primary reason for the initial delay in making the demand was the fact that the officer did not have an ASD in his police cruiser. After the ASD arrived, the subsequent delay in making the demand and administering the ASD was due primarily to the officer making inquiries into the Saskatchewan warrant. While there is an understandable pragmatic reason for this delay, said the Judge, the correct approach, at a minimum, would have been to comply with the forthwith requirements of s. 254(2) of the Code as soon as the other officer arrived with the ASD and not wait another 6 – 16 minutes before making the breath demand and obtaining the sample. Alternatively, as Mr. Marges was in possession of a cell phone, the officer could have made the demand at the outset of the investigative detention and then provided him the opportunity to contact counsel during the delay.

The Judge ruled that Mr. Marges should have been provided the ASD demand as soon as the officer had the grounds for making the demand as it is better that any delay arising out of not having the ASD immediately available occur between the giving of the demand and the taking of the breath sample than prior to the giving of the demand. The reason is that the detained person is made aware of the reason for his or her detention early in the investigation and then can make an informed decision about whether they wish to contact counsel while waiting. This right to contact counsel can be triggered when delay occurs, depending on the circumstances in which the delay occurs, said the Judge. Accordingly, the Judge found that the requirements of s. 254(2) were not complied with and constituted breaches of Mr. Marges s. 8 and s. 9 Charter rights. As well, Mr. Marges’ s. 10(a) and 10(b) rights were breached in the course of the investigation because Mr. Marges should have been advised of the reason for his detention and of his right to contact counsel. He also should have been provided a number for duty counsel. He had a cell phone, and this call could readily have been made from the roadside while the officer was waiting for the ASD and completing other inquiries.

As well, the Judge found that there was a third distinct breach of Mr. Marges’ s. 10(b) right to counsel, which occurred after his arrest. Although at the time of arrest, the officer properly advised Mr. Marges of his right to retain and instruct counsel and was going to facilitate that contact once they had arrived at the holding cells, he did not hold off questioning Mr. Marges between the time of his arrest and the time he was able to speak to counsel. This was a clear breach of Mr. Marges’ s. 10(b) right said the Judge.

On the arrest with the warrant analysis, the Judge said once a warrant is issued, s. 514 of the Code sets out how it may be executed:

(1) A warrant in accordance with this Part may be executed by arresting the accused

(a) wherever he is found within the territorial jurisdiction of the justice, judge or court by whom or by which the warrant was issued; or

(b) wherever he is found in Canada, in the case of fresh pursuit.

(2) A warrant in accordance with this Part may be executed by a person who is one of the peace officers to whom it is directed, whether or not the place in which the warrant is to be executed is within the territory for which the person is a peace officer.

 Where the accused is out of the territorial jurisdiction of the warrant, and where no peace officers from within the originating jurisdiction are involved in the execution of the warrant, s. 528 of the Code sets out a process whereby a warrant can be ‘endorsed’ in another territorial jurisdiction such that local police can execute it:

(1) Where a warrant for the arrest or committal of an accused, in any form set out in Part XXVIII in relation thereto, cannot be executed in accordance with section 514 or 703 [a section dealing with warrants issued by superior courts or courts of appeal], a justice within whose jurisdiction the accused is or is believed to be shall, on application and proof on oath or by affidavit of the signature of the justice who issued the warrant, authorize the arrest of the accused within his jurisdiction by making an endorsement, which may be in Form 28, on the warrant.

(1.1) A copy of an affidavit or warrant submitted by a means of telecommunication that produces a writing has the same probative force as the original for the purposes of subsection (1).

(2) An endorsement that is made up on a warrant pursuant to subsection (1) is sufficient authority to the peace officers to whom it was originally directed, and to all peace officers within the territorial jurisdiction of the justice by whom it is endorsed, to execute the warrant and to take the accused before the justice who issued the warrant or before any other justice for the same territorial division.

An arrest warrant for an accused that has not been endorsed (or ‘backed’) cannot be executed in a different territorial jurisdiction by local police. That was the situation that arose here; i.e. the arrest warrant for Mr. Marges was issued in Saskatchewan and had not been endorsed in Yukon. Therefore, it was clear that s. 495(1)(c) of the Code did not apply to these circumstances as the warrant had not been endorsed in the Yukon, and thus the arrest was made solely on the basis of the trafficking charges outstanding in Saskatchewan. Next, the Judge examined whether knowledge of the existence of an extra-territorial warrant for an indictable offence was sufficient to constitute reasonable grounds for an arrest per s. 495(1)(a) of the Code in this case. Essentially, said the Judge, all the officer knew when he arrested Mr. Marges was that there was an outstanding warrant in Saskatchewan relating to a charge of possession for the purpose of trafficking under s. 5(2) of the CDSA. He did not know, with certainty, what substance or in what quantity. The extent to which he may have relied upon Mr. Marges’ comments regarding “weed” could not provide him with the required certainty. The officer knew from dispatch that Mr. Marges was awaiting disposition on the charge, but he did not know with certainty that it was a Schedule I or II substance, he did not know whether the Crown had made a summary election, which would have been possible for certain drugs in certain amounts, and he did not know that the warrant also contained the allegation that Mr. Marges failed to appear in court, which is an indictable offence.  Accordingly, the Judge said it was incumbent on the officer to seek out additional information to satisfy himself that the offence that Mr. Marges was being sought on was indeed an indictable offence, and he failed to do so.

A peace officer can arrest someone for an extra-jurisdictional indictable offence. In that circumstance, the officer must take him or her before a justice in the officer’s territorial jurisdiction (s. 503(3)):

Where a person has been arrested without warrant for an indictable offence alleged to have been committed in Canada outside the territorial division to where the arrest took place, the person shall, within the time prescribed in paragraph (1)(a) or (b), be taken before a justice within whose jurisdiction the person was arrested unless, where the offence was alleged to have been committed within the province in which the person was arrested, the person was taken before a justice within whose jurisdiction the offence was alleged to have been committed, and the justice within whose jurisdiction the person was arrested.

However, said the Judge, s. 503 only applies when it is clear that the individual was indeed arrested for an indictable offence. This requirement tracks onto the warrantless arrest requirement in s. 495(1)(a), which is explicit about only applying to a person who there are reasonable grounds to believe has committed an indictable offence. In the case where an arresting officer has sufficient information to be satisfied that an extra-jurisdictional warrant is for an indictable offence, he can arrest prior to that warrant being backed, and in the event that the province or territory with jurisdiction over the offence does not wish to incur the costs of transport, the Code contemplates that the warrant will not be endorsed, the individual will be released, and the warrant will remain outstanding in the originating jurisdiction. Section 703(1) of the Code provides for warrants effective throughout Canada, provided they have been issued by the superior court or court of appeal, which was not the case here.

With all of this in mind, the Judge, therefore, found that Mr. Marges was the subject of an unlawful warrantless arrest as well. Although the officer knew that Mr. Marges was the subject of a warrant for possession for the purpose of trafficking extant in Saskatchewan, he did not have requisite reasonable grounds required by s. 495(1)(a) to believe that Mr. Marges had committed an indictable offence, as he did not have sufficient information to know that the offence was an indictable one, and by extension, the search of Mr. Marges at the holding cells was also unlawful.

*Note – Mr. Marges faced several breach of recognizance charges, two of which he entered guilty pleas to, and not argued in the voir dire.


Filed under APA Cadets, Arbitrary Arrest or Detention, Impaired Driving, Section 10 Charter

Arrest based upon odour of marihuana from vehicle of passenger in the van violated s. 8 of the Charter and the evidence was excluded.

R. v. Beaudry, [2014] M.J. No. 79 – although this case has no binding effect, the principles discussed in it are of interest. Beaudry was a passenger in a cargo van which was pulled over as part of the annual Christmas check stop program. An officer of some 13 years attended to the vehicle and the driver rolled down his window, at which time the officer noted what he described as a “striking” and “instantaneous” smell of “raw” or un-smoked marihuana. Two occupants were in the front portion of the van, which was separated by a partition from the rear portion of the vehicle.

The officer testified that given the strength of the smell, he believed there to be a “rather large quantity of marihuana in that vehicle.” He testified that he was satisfied that “there was nobody in that vehicle that (a) didn’t have it on their person, or (b) wouldn’t have knowledge that that cannabis marihuana was inside that vehicle.” As a result, the officer immediately advised the occupants that they were under arrest for possession of marihuana. While he dealt with the driver, the officer called for assistance and directed another officer of 2 years to arrest Beaudry.

The junior officer asked Beaudry to step out of the vehicle, handcuffed him, and gave him a generalized overview of his rights. Beaudry, who was described as “cooperative and respectful”, was escorted to the rear of the cruiser car where the junior officer conducted a “methodical” search, looking at that time for “weapons and a means of escape”. As a result of the search, the junior officer located a cell phone, approximately $1000 in Canadian currency, and a clear Ziploc baggie in his upper right hand jacket pocket containing approximately 30 grams of marihuana. No weapons were located. Simultaneously to this, the senior officer dealt with the driver. A search of the driver’s jacket, which was located between the front seats of the van, located approximately 9 grams of marihuana in a jacket pocket. The driver was issued a promise to appear at the roadside and was released. Beaudry was transported to the detachment, where he was searched again, eventually being released on a promise to appear.

At trial, both counsel agreed that Beaudry was arrested for a summary conviction offence pursuant to section 4(4)(b) of the Controlled Drugs and Substances Act and as such, Criminal Code section 495(1)(b) applied (in order to arrest under this section, an officer must find a person “committing” an offence). In order for the arrest to be lawful, Crown counsel must establish on a balance of probabilities that the arresting officer subjectively believed that he had reasonable grounds to arrest the accused, and those grounds must be justifiable from an objective viewpoint. Judge Harvie of the Manitoba Provincial Court said there was no issue that the senior officer subjectively believed that he had reasonable grounds to arrest the accused. At issue was whether the totality of the circumstances objectively supported that conclusion, which was based exclusively on what he described as the strong odour he detected within the vehicle. The junior officer, who affected the arrest, relied on the instructions given to him by the senior officer.

Recognizing that evidence about “odours” is highly subjective, the authorities have paid careful attention to the circumstances under which this type of “evidence” is detected. In R. v. Polashek, 1999 CanLII 3714, 134 C.C.C. (3d) 187 (Ont.C.A.) Rosenberg J.A. discussed the application of principle described in American jurisprudence as the “plain smell doctrine” as it related to the arrest of the accused, the lone occupant in a vehicle which had been stopped for a Highway Traffic Act violation. The arresting officer detected a “strong odour” of marihuana, but could not tell whether it was burned or fresh. In responding to the argument that the presence in a vehicle of the odour of marihuana alone cannot provide reasonable grounds for arrest, Rosenberg, J.A. made the following comments:

I agree, in part, with the appellant’s position. Had Constable Ross based his arrest of the appellant solely on the presence of the odour I would have held that there were not reasonable and probable grounds to make the arrest. Given Constable Ross’ admission that he could not from the odour alone determine whether the marijuana had been smoked recently or even if he was detecting the smell of smoked marijuana, the presence of odour alone did not provide reasonable grounds to believe that the occupant was committing an offence. The sense of smell is highly subjective and to authorize an arrest solely on that basis puts an unreviewable discretion in the hands of the officer. By their nature, smells are transitory, and thus largely incapable of objective verification. A smell will often leave no trace. As Doherty J.A. observed in R. v. Simpson, at p. 202: “… subjectively based assessments can too easily mask discriminatory conduct based on such irrelevant factors as the detainee’s sex, colour, age, ethnic origin or sexual orientation.”

On the other hand, I would not go so far as was urged by the appellant that the presence of the smell of marijuana can never provide the requisite reasonable and probable grounds for an arrest. The circumstances under which the olfactory observation was made will determine the matter. It may be that some officers through experience or training can convince the trial judge that they possesses sufficient expertise that their opinion of present possession can be relied upon. Even in this case, the Crown adduced sufficient evidence from which the trial judge could reasonably conclude that Constable Ross accurately detected the odour of marijuana rather than some other substance.

Some distinction is drawn in the jurisprudence between situations in which a peace officer smells recently burned marihuana and those where the officer detects raw or un-smoked marihuana. This distinction is important when assessing whether an officer finds an accused “committing a criminal offence” and is therefore empowered to arrest pursuant to Criminal Code s. 495(1)(b). In R. v. Janvier (2008), 227 C.C.C. (3d) 294 the Saskatchewan Court of Appeal considered whether a strong smell of burned marihuana provided grounds for the arrest of a sole occupant of a vehicle. The accused had been stopped for a broken headlight. When the patrol officer was within a meter of the truck, he noted the very strong smell of burned marihuana, causing him to conclude that someone had smoked marihuana in the truck within the previous 20 minutes. The trial judge concluded that the odour alone did not provide the necessary grounds for arrest.

Jackson J.A. in Janvier conducted a lengthy review of the case law related to the powers of arrest conferred by Criminal Code s. 495(1)(b) where the arrest is based on the smell of burned marihuana. The Court also considered the alternate argument that the smell of recently burned marihuana provides objectively reasonable grounds to believe that un-smoked marihuana would be present. The Court referenced R. v. Huebschwerlen (1997), 10 C.R. (5th) 121 (Whitehorse Terr. Ct.) at paras. 19-20 in which Chief Judge Lilles reviewed numerous authorities, concluding that, for the most part, the courts have been reluctant to find reasonable grounds based on the smell of burned marihuana alone. Chief Judge Lilles summarized his conclusions regarding the jurisprudence:

19 As the above cases indicate, courts have been reluctant to find reasonable and probable grounds based on the presence of burnt marihuana odour alone, unless it is established, as in Guberman (1985), 23 C.C.C. (3d) 406], that the smell was fresh, recent and very strong. More often, other observations are made in conjunction with the odour, such as evidence of some other offence justifying arrest (open liquor), physical observations of drug impairment, some marihuana in the vehicle, or an admission by the accused that he/she had been using drugs earlier in the evening.

20 A detailed and most helpful analysis of the relevant considerations in such cases is found in the American case of People v. Hilber (1978) 269 N.W.2d 159 (U.S. Mich. S.C. 1978). The following points have been summarized from that decision.

  1. A distinction is to be made between the odour of unburned and burned marihuana. The former indicates the actual presence of marihuana, while the odour of burned marihuana indicates only that at some time in the past marihuana was present and burned.
  2. Reliance on the smell of burnt marihuana as the basis for reasonable and probable grounds relies on several inferences:
  • that the odour in the vehicle was caused by the driver/occupant having smoked marihuana
  • that marihuana smokers, like tobacco smokers, carry a supply with them

But we know that other odours in vehicles, such as tobacco, beer, spoiled food, etc. are often caused by someone other than the driver/occupant at the time the odour is detected. And there is no reason to believe that tobacco smokers and their behaviours provide standards from which to judge marihuana smokers. Because of the multiple inferences involved, it is not reasonable to infer that an occupant of a motor vehicle either smoked marihuana or has it in his/her possession, solely from a residual odour of marihuana in a motor vehicle. [Emphasis added.]

Jackson J.A. in Janvier noted “that it is not reasonable to infer that an occupant of a motor vehicle having smoked marihuana would have more in his or her possession” and that since his decision, “almost all of the reported decisions have concluded, as he did, that the smell of burned marihuana alone does not provide an objective basis for a reasonable belief that there is more marihuana present.”

In R. v. Harding 2010 ABCA 180, the Alberta Court of Appeal considered the role of “odour” in the conviction of the accused for possession for the purpose of trafficking. The accused was the sole occupant of vehicle which was pulled over because the licence plate and registration tag were obscured by mud. The officer, who had considerable experience dealing with marihuana, detected a strong odour of “raw” marihuana, conducted some further investigation, and placed the accused under arrest. It was agreed that other factors identified by the officer were merely suspicions, and that the strong odour was the only objective factor to be considered. The Court drew a distinction between those cases involving burnt marihuana and concluded (at para 29):

Here, Sgt. Topham smelled the very strong odour of raw marijuana, not burnt marijuana. The smell of raw marijuana, given Sgt. Topham’s experience with marijuana, constituted the observation that a crime, namely, possession of marijuana, was being committed. No inference was necessary. The possession of marijuana was not a past event and the officer did not need to infer that he could find more marijuana by searching the appellant or his vehicle. The smell of raw marijuana alone was sufficient to conclude that the appellant was at that time in possession of marijuana.

The Court did go on to note that while the smell of raw marihuana could provide sufficient grounds for arrest, such a conclusion would depend on the officer’s experience. In Harding, supra, the trial judge described the arresting officer as having a “great deal of experience” with a “well trained nose.” Similar comments were made in R. v. Meyers, [2012] B.C.J. No. 374; 284 C.C.C.(3d) 248 (B.C.Prov.Ct.); R. v. Burgess, [2009] B.C.J. 449 (B.C. Prov.Ct.); R. v. Costain, [2010] B.C.J. No. 1268 (B.C. Prov.Ct); R. v. Ashby (2011), BCSC 513 (CanLII).

The smell of un-smoked marihuana, along with other factors, provided sufficient grounds for arrest in R. v. Yaremus, 2008 ABPC 322 (CanLII). In that case, both investigating officers, who were consider very experienced, testified as to the distinctive odour of both fresh and burned marihuana which was emanating from a vehicle stopped in a known drug trafficking location.

Judge Harvie in this case said the case law is clear that while the smell of “raw” or “un-smoked” marihuana can provide a foundation for an arrest, given the highly subjective nature of this evidence, the experience of the arresting officer and the totality of the circumstances must be carefully considered.

The senior officer had experience dealing with marihuana, specifically having been involved with a special operation where he had picked “thousands” of plants for destruction. While on highway patrol, he testified to having encountered vehicles with both smoked and un-smoked marihuana. The junior officer confirmed that as part of his training, he handled fresh marihuana and had taken a course on the transport of illicit substances. He was called over to assist the senior officer, and was immediately instructed to arrest Beaudry, who showed no signs of intoxication or otherwise having been under the influence of drugs. While the passenger vehicle window was up, the junior officer testified that he attended to the passenger side of the vehicle where he requested that Beaudry remove himself from the vehicle, placing him under arrest. At no time did he note a smell of marihuana, either from the vehicle or from the accused. Judge Harvie said this was significant given that the bulk of the marihuana located in the vehicle was ultimately found in Beaudry’s jacket, albeit sealed within a Ziploc baggie.

Judge Harvie said given that the smell of marihuana provided the sole basis for the arrest of the driver and Beaudry, the evidence in this regard required careful scrutiny and the cautionary words of the Ontario Court of Appeal in Polashek, supra, bear repeating:

“The sense of smell is highly subjective and to authorize an arrest solely on that basis puts an unreviewable discretion in the hands of the officer. By their nature, smells are transitory, and thus largely incapable of objective verification.”

In this case, said the judge, the verification of what the senior officer described as an “overwhelming” smell by his partner was surprisingly absent. While possessing less experience than his partner, the junior officer did attest to being familiar with marihuana and its unique odour, so even recognizing that the passenger window was up, it seemed likely that an odour as “overwhelming” as the one purportedly detected by the senior officer would have been easily detected when Beaudry exited the vehicle. The judge said that the senior officer was certainly of that view, testifying that he didn’t attend to the passenger side of the vehicle because “Whether I was on the driver’s side of that vehicle or the passenger side of the vehicle is inconsequential, the odour would have been the same whether I was on the driver’s side or the passenger side.” The Court was then left with a question as to whether the smell emanating from the vehicle was as strong as was suggested by the senior officer, and by extension, whether it was strong enough, standing alone, to provide reasonable grounds to believe that an offence was being committed.

Judge Harvie, for her own reasons, said the Crown must only establish on a balance of probabilities that the officers had reasonable grounds to arrest, and that those grounds are justified from an objective point of view. Given that the officers clearly stated that they arrested the accused, an examination of the issues related to the powers of “investigative detention” might seem at first blush to be unnecessary. However, given the officers’ evidence in this area, some comment was required according to the judge.  To summarize, Judge Harvie said there was a lack of clarity on the part of the officers’ testimony with respect to the powers of arrest versus the powers of detention and was important when objectively considering whether the officers had the requisite grounds to arrest Beaudy. The officers appeared to view the power of arrest to essentially be interchangeable with the power to detain for investigative purposes, and a reliance on the “practice” of arresting a suspect lead to the concern that the officers did not give proper attention and weight to the need for “reasonable grounds”. This must all be considered when weighing the officers’ clearly articulated views that they had the authority to “arrest” the driver and Beaudry based on the odour that only the senior officer detected.

The Judge said the senior officer did not provide any information to the junior officer about the basis for his conclusion that two occupants should be arrested. This must be assessed when considering that the junior officer Constable did not make any observations on his own which would provide grounds to arrest Beaudry, and that he seemed to consider that the simple fact that this was a “drug related stop” conferred upon him the power to arrest Beaudy.

The crown must establish on a balance of probabilities that the arresting officer subjectively believed that an offence was being committed, therefore giving them reasonable grounds to arrest the accused, said the judge. Those grounds must be objectively reasonable. The senior officer, an officer with experience in drug investigations, relied exclusively on the smell of raw marihuana coming from the vehicle. Despite describing this smell as “overwhelming”, it was not noted by the junior officer, who actually arrested the accused.  According to Judge Harvie, a further complicating factor was the lack of clarity from both officers as to the fine but important distinction between circumstances in which an accused can be arrested versus those circumstances which would support only an investigative detention.

Given the unique, subjective and highly transitory nature of “smells” as a basis for arrest, special attention must be paid to this type of evidence. Taking all of the circumstances into consideration, Judge Harvie was not satisfied that the evidence in this case objectively supported the arrest of the accused. While the senior officer had previous experience in dealing with marihuana, his evidence on this important point was not supported by the junior officer, who while less experienced than his partner, was in a position to have noted the smell. Judge Harvie was satisfied that the accused’s arrest was not lawful and that he was searched in violation of section 8 of the Charter.

Applying the analysis as set out in Grant, Judge Harvie considered the officers’ Charter-infringing conduct to be serious. The lack of consistency between the officers, the complete lack of any further investigative steps, coupled with a serious lack of understanding related to the powers of arrest raised serious concerns. The Judge further considered that the impact on the accused was significant and more than technical. While the drugs sought to be introduced represented real and reliable evidence, that consideration cannot be seen to trump the first two prongs of the test. Taking all of the forgoing into account, Judge Harvie concluded that the evidence in question should be excluded pursuant to the Charter, section 24(2).

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Section 10(b) of the Charter was violated by a police refusal to let the accused call his mother for such assistance.

R. v. Ferris, [2014] S.J. No. 142 – Ferris was charged with operating a motor vehicle while impaired by alcohol and while over the legal limit of .08.  This case focused on the issue of lawful grounds for the arrest and breath demand, but the other issue with respect to s. 10(b) of the Charter will be the focus of this post. Section 10(b) of the Charter provides that everyone has the right on arrest or detention to retain and instruct counsel without delay and to be informed of that right.

At the time of arrest, when asked whether he wished to call a lawyer, Mr. Ferris said “yes I would”. The officer stated that, at the detachment, Mr. Ferris, when asked if he had decided on a lawyer to contact, said he had not. The officer claimed he told Mr. Ferris that he could provide him with a phone book or call a lawyer or call Legal Aid. He said Mr. Ferris chose to call Legal Aid. He then contacted the toll-free number for Legal Aid, gave the phone to Mr. Ferris, and left the room. He said Mr. Ferris spoke to Legal Aid duty counsel for five minutes. On cross-examination, the officer was asked whether, at the roadside, Mr. Ferris wanted to talk to his mother about getting a lawyer. The officer responded Mr. Ferris could have said this. The officer said he refused to allow Mr. Ferris to speak to his mother before the samples were taken as he was an adult person and the only person he was allowed to call was a lawyer. The officer said he was trained to only allow an arrested person to phone a lawyer as there was no way of knowing who the person would otherwise phone.

Mr. Ferris said he asked the officer numerous times whether he could phone his mother. He said, when in the interview room in the detachment, the officer asked him if he wanted to speak to a lawyer and asked him whether he knew any. Mr. Ferris responded he wanted to speak to his mother to get the name of the family lawyer. The officer then said he would call Legal Aid for him. On cross-examination, Mr. Ferris said he didn’t want to speak to a Legal Aid lawyer, but admitted he did not tell the police officer this. When asked why he did not, he said he didn’t know any other lawyers and he just wanted to speak to his mother about this. He said, when the officer asked him whether or not he had made up his mind yet about which lawyer to call, he told the officer he just wanted to call his mother. When asked what effort he put into finding a lawyer, he said he did not know how to do this. He maintained that he told the officer why he wanted to call his mother, and that it was his mother that knew of a lawyer that she had dealt with in the past. He thought his call to Legal Aid was his only option, but admitted that he didn’t express any dissatisfaction to the police officer after he spoke to that lawyer.

Honourable Judge Ross Green said that he was satisfied that: (1) Mr. Ferris asked the officer a number of times whether he could call his mother to get the name of the family’s lawyer and the officer refused, saying he could only allow him to speak to a lawyer; and (2) Mr. Ferris then spoke to Legal Aid counsel, after the officer suggested this, and said nothing further to the officer about his rights to counsel before he blew into the breath machine. Taken together, the judge said he was satisfied that Mr. Ferris was reasonably diligent in attempting to contact a lawyer – which he wanted to do with the help of his mother.  As well, said the judge, even with his silence after he spoke to Legal Aid counsel, he was not satisfied he waived his right to speak to a lawyer of his choosing, given his repeated requests to get the name of his family’s lawyer from his mother.

Ultimately, said Judge Green, the issue becomes whether the officer’s refusal to let Mr. Ferris call his mother, for the stated reason, violated his rights under s. 10(b) of the Charter. Judge Green applied R. v. Laplante, (1987), 40 C.C.C. (3d) 63 (Sask. C.A.), in which the accused asked on three occasions, while in the police cell block, to call his wife to find out if she had retained a lawyer for him. These requests were refused. In finding that this constituted a breach of Mr. Laplante’s s. 10(b) rights, Justice Vancise said:

The detainee has the right to consult counsel and by requesting to call someone in connection with that right is asserting the desire to exercise that right. Here the person in charge of the lockup, the commissionaire, did not make the necessary arrangements to enable the appellant to call his wife for the purpose of retaining and instructing counsel. He was not afforded the opportunity to consult with a lawyer.

Judge Green also applied R. v. O’Connor 2013 SKQB 292, where Ball J. found the refusal of a police officer to allow a detained person the opportunity to contact his father by telephone, for help in getting the number of their family’s lawyer, to constitute a violation of Mr. O’Connor’s right to consult with a lawyer of his choice as guaranteed by s. 10(b).

Judge Green said that similar to those cases, here he was satisfied that Mr. Ferris, when he asked to contact his mother, was asserting his right to contact a lawyer through her. Because he was denied this opportunity, he was satisfied that the officer did not act diligently in facilitating Mr. Ferris’ right to consult a lawyer of his choosing, and that, as a result, his rights under s. 10(b) were infringed.

Following the Grant Test, Judge Green said in this case, in addition to a s. 10(b) breach, breaches of ss. 8 and 9 as well occurred. While there may have been grounds for a suspicion that Mr. Ferris had alcohol in his body, and hence for an ASD demand under s. 254(2), the judge did not accept that the officer’s subjective belief that Mr. Ferris had been driving while impaired in the previous three hours was reasonable (points that I did not discuss in this post). In summary, he found: (1) the officer acted too quickly in arresting Mr. Ferris and in demanding that he provide a sample of his breath under s. 254(3); and (2) likely through an institutional mistake in training – although that is not certain – the officer denied Mr. Ferris the right to contact a lawyer of his choosing by refusing to allow him to contact his mother to get the name of a lawyer. As well, the judge was not satisfied that the Crown had shown “that the accused would not have acted any differently had there been no s. 10(b) violation”.

As a result, Judge Green excluded (1) any evidence of the breath tests, including the Certificate of Analyses, and (2) any evidence of Mr. Ferris’ condition, behaviour or demeanour after he was arrested.


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Breath tests not taken “as soon as practicable” where police contacted duty counsel, on his own volition, after accused waived counsel.

R. v. Sharma, [2014] O.J. No. 1289 – this case out of Ontario raised a couple of key issues that should serve as a reminder to those officers practicing poor “note-taking” habits.  

I will summarize this case in point form in order to get to the key issues:

  • 11:42 p.m. – The defendant’s car approached the R.I.D.E spot check.
  • 11:43 – The police Constable read the defendant the approved screening device demand.
  • 11:45 – The defendant registered a “fail” and was arrested.
  • 11:48 – The defendant was read her rights to counsel and waived her rights.
  • 11:50 – The defendant was read the breath demand.
  • 12:02 – The defendant was transported to the police station.
  • 12:15 – The defendant arrived at the police station.
  • 12:16 – Brought through booking.
  • 12:19 – First bathroom trip.
  • 12:23 – The defendant was escorted to the report room.
  • 12:30 – The police constable placed a call to duty counsel.
  • 12:39 – Duty counsel called back and a conversation occurred between the defendant and the duty counsel lawyer.
  • 12:41 – The defendant exited the privacy booth and went to the breathe room.
  • 12:47 – First breath sample was taken from the defendant.
  • 1:12 a.m. – Second breath sample was taken from the defendant.
  • Note: there was a second bathroom trip at some point between 12:23 and 1:12.

This case hinged on two issues, which essentially was decided by the officer’s notes, or in this case, the lack thereof. The defendant originally waived her right to consult with a lawyer. The police constable testified that the defendant later changed her mind about speaking with a lawyer, and as a result, he contacted duty counsel for her to obtain legal advice. The police constable did not include in his notes that the defendant changed her mind on exercising her right to speak to counsel. On this issue, the police constable testified purely from memory. The defendant testified that she never requested to speak to duty counsel. She explained that she never did change her mind on this point and that the police officer acted on his own volition and certainly not at her request.

The judge relied upon R. v. Davidson, [2005] O.J. No. 3474, which addressed the issue where police occasioned a call with duty counsel, on their own volition, after a clear waiver of right to counsel was given by the accused. Dawson J. held in Davidson at para. 21:

“If the waiver is clear and unequivocal it is not reasonable, as a matter of law, for the police to contact duty counsel, thereby delaying the administration of the breath tests.”

In the case at hand, the officer testified that the defendant had changed her mind with regards to right to counsel at the station, upon being given her right to counsel a second time. For these reasons, the police constable put the accused on the phone with duty counsel. This did not appear anywhere in his notes. The Honourable Justice Aston J. Hall said that the case law is quite clear that absence of notes by a police officer in relation to pivotal issues diminishes the weight attached to their evidence, as discussed in R. v. McGee, [2012] O.J. No. 523 at para. 66. Duncan J. in R. v. Zack, [1999] O.J. No. 5747 (Ont. C.J.) held that:

“In this day of full disclosure, it cannot be an acceptable explanation for an officer to say ‘I did not note it because I would remember it’.”

Feldman J. in R. v. Lozanovski, [2005] O.C.J. 112, 64 W.C.B. (2d) 630 at page 3 said the following:

“It is important to the proper functioning of the judicial fact finding role that significant facts be recorded by the police and not left to the whim of memory.”

In R. v. Odgers, [2009] O.J. No. 2592 at para. 16, Fournier J. stated:

“It goes without saying that the absence of notes on an important factor is relevant to an officer’s credibility. As a result, the courts have on occasion been reluctant to attribute much weight to evidence adduced viva voce by an officer, in the absence of corroborating written references in that officer’s notebook.”

The absence of notes is clearly relevant to the officer’s credibility, as the Court of Appeal stated in R. v. Fisher, [2005] O.J. No. 1899:

“[T]he notes, and in particular the absence of the important fact as to the origin of the odor of alcohol, were relevant to the officer’s credibility.”

Wright J. in R. v. Hayes, [2005] O.J. No. 5057 at para. 9:

“For an officer to come to court and simply say I have an independent recollection doesn’t cut it in this court. Not in front of me. Not in front of Justice Duncan and I suspect probably not in front of very many judges anymore.”

The Honourable Justice Aston J. Hall said for the police constable to come to court and testify that he simply did not record in his notes, something as important and significant as right to counsel, because he was multi-tasking was concerning and he could not place any weight on his viva voce evidence that the defendant asked to speak to duty counsel. On the other hand, said the judge, the defendant gave her evidence in a straightforward manner and her recollection of events, other than the disputed with respect to “change of mind “regarding right to counsel, was largely consistent with the officer’s version of events. In light of these reasons, the judge said he had no reason to disbelieve the defendant’s evidence, and he accepted the evidence of the defendant and found that there was a clear and unequivocal waiver with respect to her right to counsel and that she never changed her mind with regards to this waiver.

Justice Hall said where the delay occasioned by the call to duty counsel is unreasonable, it is effectively unexplained. In these circumstances, the defendant clearly and unequivocally waived her right to counsel without ever changing her mind. Therefore, the eighteen minutes delay in administering the breath test was unreasonable and effectively unexplained. The eighteen minutes was a substantial amount of delay in light of the two hour guidelines, said the judge, and therefore the breath tests were not administered “as soon as practicable” and cannot be relied on by the crown under the presumption of identity.

Justice Hall found the defendant not guilty of impaired driving and not guilty of over 80.





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