In allowing an appeal from conviction in an impaired driving case called R. v. Beckler, 2013 BCSC 1697, Mr. Justice Truscott held that the arrest without warrant of a driver for a hybrid offense like impaired driving could only be justified by section 495(2). That section does permit the arrest without warrant of a person on the grounds that the public interest required an arrest in order to secure or preserve evidence, but that interest is addressed completely by the terms of the Breathalyzer demand permitted under section 254 (3) of the Code. The result in this case was that the arrest of the driver was held to be unlawful and arbitrary, and an infringement of section 9 of the Charter of Rights, which guarantees the right to be free from arbitrary detention.
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From Sweeney to Smith: Sentencing for Impaired Driving Causing Death or Bodily Harm in the BC Court of Appeal (Part 2)
(This is the second of a two-part post on sentencing in cases of impaired driving causing death. The first part is posted here.)
Retribution and Denunciation
The law started moving away from Sweeney when the decision of the British Columbia Court of Appeal in R. v. M. (C.A.) 1994 CanLII 8741 (BCCA)., which rejected retribution as a legitimate aim of the criminal justice system, was overturned by the Supreme Court of Canada.
R. v. M. (C.A.),  1 SCR 500 was an appalling case of shocking sexual violence by a father against his children. In the Supreme Court of Canada, speaking for the Court, Chief Justice Lamer said that, "Retribution in a criminal context... represents an objective, reasoned and measured determination of an appropriate punishment which properly reflects the moral culpability of the offender having regard to the intentional risk-taking of the offender, the consequential harm caused by the offender, and the normative character of the offender's conduct."
The Chief Justice distinguished retribution from denunciation. He said that retribution required a sentence that reflected the moral blameworthiness of the particular offender. In contrast, "the objective of denunciation mandates that a sentence should also communicate society's condemnation of that particular offender's conduct."
From Sweeney to Smith: Sentencing for Impaired Driving Causing Death or Bodily Harm in the BC Court of Appeal (Part 1)
The law of sentencing in British Columbia has been guided by the rulings of the British Columbia Court of Appeal since the court was first given jurisdiction to hear sentence appeals in 1921. For most of the next half-century, the court's jurisdiction was used sparingly. Sentencing was left to the discretion of the sentencing judge, and appellate review was rare.
Starting in the mid-70s, the British Columbia Court of Appeal became more active in attempting to articulate the principles and objectives that ought to guide sentencing judges. Generally speaking, the tension was between the traditional model of sentencing based on deterrence, denunciation and retribution, and the newer ethic of rehabilitation that stood in contrast to it.
The Immediate Roadside Prohibition has been a feature of British Columbia traffic law for several years. Immediate Roadside Prohibitions are issued by police officers who claim that a driver blew into a screening device which returned a fail reading, or that the driver refused to blow into a screening device. If you've been issued an Immediate Roadside Prohibition, there is bad news and good news.
The Bad News
The bad news is that the Immediate Roadside Prohibition law was drafted to make it difficult (but not quite impossible - see below) for drivers to dispute.
In a decision released on Friday by the Supreme Court of Canada, a majority of the justices held that the amendment to the Criminal Code in eliminating the so-called "Carter defense" should not be interpreted to apply to Breathalyzer investigations which took place before the amendment came into force on July 2, 2008. The decision is called R. v. Dineley, 2012 SCC 58.
In an impaired driving case decided by a BC Provincial Court Judge earlier this month, the decision of a police officer to make a breathalyzer demand was approved and the driver was convicted. The case, called R. v. McKinnon 2012 BCPC 0224, is notable for a thorough analysis of the legal test for the assessment of reasonable grounds for a breath demand.
Declaration That the Immediate Roadside Prohibition Law Was Unconstitutional Is Not Retroactive, So Drivers Are Not Entitled To Compensation
BC criminal lawyers learned today that a ruling on compensation for drivers punished under the Immediate Roadside Prohibition law, before the law was declared to be unconstitutional, had been released. In a nutshell, Mr. Justice Sigurdson ruled that the declaration of unconstitutionality would not have retroactive affect, and dismissed the claims for compensation.
Claims For Compensation
The drivers involved claimed compensation for the following:
In a recent impaired driving trial involving the use of an approved screening device, an Alberta Provincial Court Judge found that the failure to prove that a proper approved screening device made resulted in a violation of the driver's right to be free from unreasonable search and seizure, and he ordered that the evidence gathered be excluded from the trial in order to dissociate the Court from the Charter infringement. The case is called R. v. Semchuk,  ABPC 135 (CanLII).
 At the outset the court entered into a voir dire to determine the admissibility of the Certificate of Analyses. Constable Patrick Ross testified that on January 26, 2011 he was a member of the Calgary Police Service and was operating a checkstop in the 200 block of Mission Road, in the city of Calgary. Ms. Semchuk was stopped in the checkstop. She indicated to Constable Ross she had a couple of drinks earlier in the evening.
A Judge of the BC Provincial Court recently acquitted a driver of impaired driving, after excluding evidence of breath samples taken following an unreasonable breathalyzer demand. The decision is called R. v. Thalen, 2012 BCPC 196, and I tweeted a link to the case when I first read it last week.
Today, the BC Government's new Immediate Roadside Prohibition Law comes into force. Click here for a link to the amendments. What are the changes?
The fundamental law is unchanged - police officers will use a screening device to make a decision about whether they will issue a Notice of Intent to Prohibit the driver for up to 90 days. The details have been tweaked, though. Here's a summary: