In this case, police officers were informed by forest trail patrollers that an individual was driving an all-terrain vehicle (“ATV”) while intoxicated. The police arrived on the scene and questioned the accused. Noting a few symptoms, the officers radioed for an Approved Screening Device (“ASD”), as they did not have one in their possession. Once the request for an ASD was made, the police ordered that the accused immediately provide a breath sample immediately. On three occasions, he refused to provide the requested sample. He was placed under arrest for refusing to comply with the order, in contravention of paragraph 254 (5) of the Criminal Code, now found under section 320.27 of the Criminal Code.
In the first instance, the Municipal Court judge ruled that the validity of the order given did not depend on the presence of an ASD at the scene of the interception. In so doing, he found the accused guilty of the offense of refusing to obey a police order.
On appeal, the decision was overturned and a judgment of acquittal was rendered. According to the Court of Appeal, the validity of the order depended on the police officer’s ability to order a driver to provide an immediate breath sample, which implied that the peace officer must have immediate access to an ASD. Thus, in the absence of such a device, the officer’s order was invalid.
In the present appeal, the Supreme Court turns its attention to the interpretation of the immediacy requirement. Specifically, the issue at hand is whether the validity of the order requires the police to have access to an ASD at the very moment they issue an order.
The Supreme Court concluded that the order issued by the police officers was invalid.
To reach this conclusion, the Supreme Court first looked at the ordinary and grammatical meaning of the word “immediately”, which refers to the expressions “without delay”.
Indeed, the constitutionality of this requirement depends on an interpretation of the word “immediately” consistent with its ordinary meaning, since the presence of this word includes an implicit restriction on the right to counsel guaranteed by paragraph 10 b) of the Canadian Charter of Rights and Freedoms (“Charter”). Since the detained driver must immediately provide a breath sample, he cannot consult a lawyer beforehand. Such a restriction, which balances the need to preserve constitutional rights guaranteed by the Charter against the public interest in eradicating the threat posed by impaired driving, is justified and acceptable precisely because of the short duration of the detention.
Accordingly, the courts must not unduly broaden the ordinary meaning reserved for the word “immediately”.
Therefore, an order made under section 320.27 (1) of the Criminal Code cannot be presumed valid in the absence of an ASD at the interception site. A person cannot be held criminally liable for refusing to obey an order that was practically impossible to obey due to the absence of an ASD at the time the order was made. Finally, the validity of the order cannot be made conditional on the time taken to deliver the ASD at destination, as such an approach would place the driver before an unbearable uncertainty. Indeed, when a detained driver is called upon to respond to an order to provide a breath sample, he must be able to know whether the order is valid and whether his refusal will engage his criminal liability. In a context where the detained driver does not have the benefit of legal counsel, he cannot be expected to agree in advance to comply, and then know when the delay in delivering the ASD justifies a refusal.
As the order was invalid, the defendant’s refusal did not engage his criminal liability, so the verdict of acquittal must be upheld.
The Court of Appeal has the power to intervene to modify a sentence imposed in first instance when it is demonstrated that the sentence is demonstrably inappropriate or that the judge made an error in principle affecting the sentence. At this point, the Court must analyze all the relevant elements in order to substitute the initial sentence with the appropriate sentence. In addition, when a sentence is increased, but the accused has already served it and has been released, the Court must assess the impact of ordering the accused’s return to custody and determine whether it would cause injustice.
The prosecution seeks leave to appeal a judgment of the Superior Court, which acted in its capacity as a court of appeal. The right of appeal being sinuous, the Court of Appeal of Quebec had to clarify the question of its own jurisdiction.
The right to retain and instruct counsel, protected by section 10 (2) of the Canadian Charter of Rights and Freedoms, includes the right to chose one’s counsel. Its violation cannot be trivialized even if the person has been able to obtain the assistance of duty counsel. Where this right is infringed upon, its assessment and its impact on the justice will depend on the circumstances of the case.
One of the oldest tenets of Canadian Law is the principle that a person’s home is inviolable. Canadian case law recognizes, however, particularly since R. v. Evans of the Supreme Court of Canada, the principle of “implied invitation”. In this case, the operation consists of sending an undercover agent to knock on the door of the residence and inform the occupant that “everyone has just been arrested” and that “the boss is saying to get rid the stock ”. He therefore urges the occupier to “hand over the stock” to him so that he can deal with it.
With this decision, the Court of Appeal adopts the lessons of R. v. J.F. in order to establish whether an unreasonable delay in Jordan’s view can be justified by the exceptional transitional measure. This in itself recognizes that all delays that were considered reasonable the day before Jordan must not automatically become unreasonable the next day.
When a judge has to impose a sentence, the Criminal Code offers him several ancillary orders that can be added to a more traditional sentence such as imprisonment. These orders include the possibility of making a long-term offender declaration and making ancillary orders. What rules are these orders subject to?
Jury trials were established several centuries ago and remain an institution in countries of English tradition, particularly in Canada and the United States. However, the juror is by definition a “peer” who is not educated in the field of law. This is why a judge also presides in any jury trial. At the end of a jury trial, it is the judge’s duty to explain to jurors the applicable legal principles and to guide them before they can deliberate and render a verdict.
When a trial is before a judge and jury, it is the judge’s responsibility to instruct the jurors. He must provide explanations concerning the significant elements of the offences, as well as the rules of law. In addition, the judge must ensure that all other questions concerning the case may be adequately answered. This responsibility is essential because the trial equity depends on a properly instructed jury. When the victim saw him with the gun in his hand, he suddenly moved in his direction. The appellant, while backing up, bumped into the couch and accidentally fired the gun. He latter testified that he did not want to pull the trigger or shoot the victim. He added that he want aware that the gun was loaded and add that the gun did not have a trigger guard.
When the Crown alleges importation or possession of a specific illegal drug, it only needs to show that the accused knew she was in possession of an illegal drug in a generic sense to meet the mens rea criteria. It does not have the burden of demonstrating knowledge of the particular drug named in the accusation.
When the police suspect that a motor vehicle driver’s ability to drive is impaired by alcohol, they can order him to blow into an approved screening device to determine if there are traces of alcohol in his blood. However, what occurs when the police possess such a suspicion where a screening device is not “immediately” available?
When the suspect of a crime is a stranger to the victim, a common police technique is to conduct a photo line-up, in which the complainant attempts to identify his attacker among a series of individuals who may match the suspect’s description given to the police.
Since memory is not infallible, there are situations where the judge must evaluate the credibility of two witnesses providing opposing versions. What rules must the judge abide by in such circumstances?
An undeniable advantage to retain the services of an attorney is the possibility that he may negotiate with the prosecution in order to obtain a sentence that is reasonable and acceptable for the accused. Moreover, when such a negotiation leads to a joint submission on sentence, the judge must generally abide by the suggestion. (more…)