From Sweeney to Smith: Sentencing for Impaired Driving Causing Death or Bodily Harm in the BC Court of Appeal (Part 1)

Most impaired drivers cause no injuries, but when they do the consequences are tragicThe 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.

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Immediate Roadside Prohibitions - Update

The Immediate Roadside Prohibition is part of the decriminalization of impaired driving in BCThe 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.

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SCC Rules That Breathalyzer Law Should Not Apply Retrospectively

SCC Rules Breathalyzer Law Should Apply RetrospectivelyIn 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.

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Judge Rules Breathalyzer Demand Lawful In BC DUI Case

BC Provincial Court Rejects Charter Application, And Admits Evidence Of A RefusalTo BlowIn 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.

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Declaration That the Immediate Roadside Prohibition Law Was Unconstitutional Is Not Retroactive, So Drivers Are Not Entitled To Compensation

No Compensation For Drivers Affected By The Immediate Roadside ProhibitionBC 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:

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Failure to Prove Whether A Screening Device Demand Was Made Leads To Exclusion of Evidence

Breathalyzer Evidence Was Excluded From A Criminal Trial When The Crown Failed To Prove That A Proper Demand Was MadeIn 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, [2012] ABPC 135 (CanLII).

[2]               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. 

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BC Provincial Court Excludes Breath Sample in Impaired Driving Case

BCPC reasons for excluding breath samples in DUI case, after finding that demand was made withoutgrounds: awe.sm/oNUR #BCLaw

— Richard Hewson (@HewsonLaw) June 22, 2012

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.

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Here Comes The "New" IRP

An Approved Screening Device relied on by a BC police officerToday, 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:

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BC Government Amends Imediate Roadside Prohibition Law

Police Use Screening Devices To Impose Immediate Roadside ProhibitionsThe Government of BC has introduced the amendments that will be made to the Immediate Roadside Prohibition in the Motor Vehicle Act, part of a response to the ruling last November that significant parts of the province's impaired driving laws were unconstitutional. The government has set June 15, 2012 as the date on which the amendments will come into force.

There is no word yet about the effect of the amendments on those drivers whose Immediate Roadside Prohibitions have been stayed.

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Approved Screening Devices and Proper Operating Temperatures

Screening Devices Are Unreliable Outside Their Operating Temperature RangeThe "Approved Screening Device" is a key component of BC's criminal and administrative approach to policing drunk driving. Since the government decriminalized impaired driving in 2010, there are fewer trials. As a result, there are fewer opportunities to review the way that police actually use their screening devices. Two recent cases in the BC Provincial Court illustrate one of the screening device's shortcomings - the need to ensure it is at a proper operating temperature before using it to take a sample from a driver. The cases are called R. v. Gill, [2011] BCJ No. 2383 (BCPC) and R. v. Baldeon, [2012] BCJ No. 70 (BCPC).

Facts

Mr. Gill was stopped by Cst Anderson, and failed a screening device test. Later, at the police detachment, he refused to blow in the more accurate Datamaster breathalyzer machine.

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