04 February

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Approved Screening Devices

Posted by Rory

in approved screening devices, as soon as practicable, Defences, Impaired Driving, Intoxylizer Operation

Approved Screening Device

Calibration Logs

For many years I have been thinking about ways to challenge approved screening devices “ASD”. In R. v. Black 2011 ABCA 349 I was a able to take a case all the way up to the Alberta Court of Appeal on a very interesting issue. I suggested that I was entitled to copies of calibration logs for the devices. At that time every two weeks the approved screening devices were calibrated before being used in service.

When one examined the logs it appeared that the devices they were using then the Intoxylizer 400D were very unstable. In other words calibration records showed that the devices were sometimes off by as much as 30%. Practically what this meant is that someone with a Blood Alcohol Level of only 70 mg was being arrested because the ASD thought they were 100 mg. This I argued was akin to an arbitrary detention.

The Albert Court of Appeal said that the defence were not always entitled to the logs in a 2:1 decision. The logs were not relevant unless the officer knew the device was faulty. The officer could rather ely on a calibration sticker on the device itself. The exception to this rule was if the calibrator was also the investigating officer. Then the logs were producible.

In any event, shortly after this decision I then argued that if I wasn’t allowed the logs then I was entitled to see the calibration sticker on the ASD. I won a case when this wasn’t provided to me using the Court of Appeal’s reasoning in Black.

Waiting Time

Another very useful decision I came across recently was R. v. Bergen 2014 M.J. No 122. I suggest every impaired driving lawyer have this case handy.

In that case the officer chose to wait 15 minutes before administering the ASD because he saw the Accused pull out a bar and was concerned he may have consumed alcohol within the past 15 minutes. He did not ask the accused and had no specific reason to believe the accused had consumed alcohol within the past fifteen minutes. On appeal the conviction was overturned. If an officer in those circumstances is not required to wait 15 minutes to administer an ASD, when he see’s a person leave a bar, why would he be required to wait 15 minutes without anything more?

This is an excellent decision on law and

03 February

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Criminal Harassment

Posted by Rory

in Defences, harassment, harrasment

Criminal Harassment Memo

Thoughts on Sillipp and related harassment Cases

I was able to look up a number of cases that cited Sillipp, and based on that have some thoughts on arguments that the offence of criminal harassment isn’t made out on the facts.
R. v. Sillipp 1997 ABCA 346

Sillipp read 264(1) to mean that criminal harassment is established when the crown can prove beyond a reasonable doubt that a) the defendant engaged in conduct described in 264 (2) (a-d) b) Victim was harassed c) intention can be established by knowledge, recklessness, or wilful blindness, d)the conduct caused V to fear for her safety e) V’s fear was reasonable
Mens Rea- Delusion?
Sillipp seems to be the foundational case for Criminal Harassment. In my earlier input into this case, I had suggested using the lack of mens rea as an argument, but case law seems scant on this point. In fact there is an actual case (R. v. Crook [2015] O.J. No. 5849 2015 ONCJ 627) where the judge rejected a psychologist’s testimony that the defendant was delusional and believed himself to be in love (Although in that case the crown prosecutor and the amicus curae-the accused was self represented-urged the judge to not take into account the psychologist’s testimony )
This may be useful for us, however. In Crook, the judge, after accepting the crown and the A.C’s suggestion to disregard the psychologist’s testimony, went on to consider whether mens rea was established regardless. In this case, it wasn’t because 1)the delusion was limited to another facet of the case and 2)the delusion did not properly explain Mr. Crook’s actions
20 First, the delusions identified by Dr. Van Impe are limited to the belief that Lisa and Brent were not the parents of the children living with them and that Lisa might ultimately enter into a relationship with Mr. Crook. These delusions do not extend to a belief that the Aube children had been abducted, although the suggestion of abduction is either explicit or implicit in the Abduction Communications. Absent that feature as part of Mr. Crook’s identified delusions, his references to abduction is an act naturally resulting in significant perturbation on the part of the Aubes and cannot be excused as part of any fixed and false set of beliefs.
21 Second, Ms. Ross and Mr. Jim point out that Mr. Crook, if the sender, went to some lengths to disguise his identity, posing, for example, as a concerned parent of another child, as a police officer, and as a Toronto Star reporter. As Ms. Ross put it in Exhibit 31, “had he truly wanted to ensure the safety of abducted children, he could and should have marched into a police station or CAS office”. Assuming Mr. Crook sent the Abduction Communications, his surreptitiousness in doing so would undercut the concern which I initially entertained that Mr. Crook was, from his delusional perspective, merely engaging in an exposure of the Aubes as wrongdoers. I accept from counsel’s submissions that Mr. Crook, as sender, perceived that the sending of the Abduction Communications was wrong. Moreover, even if Mr. Crook were incapable of an appreciation of the culpability of each consequence of the sending of the Abduction Communications, so long as the Crown proves mental culpability in respect of the sending itself, mens rea is established: R. v. DeSousa, [1992] S.C.J. No. 77 (S.C.C.); R. v.Krushel, [2000] O.J. No. 302 (O.C.A.).
Harassment
There is a case to be made that the complainant wasn’t harassed in this case. It is important to note that 1-criminal harassment is a high threshold.

R. v Alvarez-Gongora, 2014 ONCJ 712,
42 For the complainant to have been harassed or to have felt harassed, it is not enough for the complainant to have been “vexed, disquieted or annoyed”. To have been harassed means to have been “tormented, troubled, worried continually or chronically, plagued, bedeviled and badgered”. I note that these terms are not cumulative. It can be enough for harassment if any one of these terms is established.
It is useful to look at some cases where criminal harassment has been found. We can argue that Mr. Khedr’s behavior isn’t similar.

R. v. Yannonie [2009] A.J. No. 121 2009 ABQB 4 467 A.R. 336

29 The evidence in Sillipp disclosed the following actions on the part of the Accused:
• – the Accused frequently drove past and parked near the home and office of the first complainant (his ex-spouse) and the apartment of the second complainant;
• – the Accused frequently followed the first complainant’s vehicle for short distances and swerved at her vehicle on one occasion;
• – the Accused followed the second complainant’s vehicle for short distances as well;
• – the Accused followed the complainants through several specific locales in St. Albert and Edmonton;
• – the Accused followed the second complainant to the Edmonton International Airport where she was to pick up the first complainant from an incoming flight.

R. v. R.G. [2001] Y.J. No. 12 2001 YKSC 2

51 The point is that conduct which causes a complainant to be “vexed, disquieted or annoyed” is not sufficient. The complainant must be “tormented, troubled, worried continually or chronically, plagued, bedeviled and badgered.”
52 It is clear from the evidence of M.O., Olga Anderson and Bruce Webber that M.O. was harassed. She was fearful and in a state of agitation that caused her to run for several blocks to find a safe haven. Constable Letendre, who attended at the 4050 Fourth Avenue apartment, described M.O. as very scared, anxious and talking quickly. In short, she was not annoyed, but rather, she was tormented, troubled and badgered.
R. v. P.R.B. [1999] A.J. No. 1589 1999 ABPC 158 263 A.R. 90

16 Ms. L.B. described the effect of the defendant’s actions on her and her family in the following words:
I live with my parents. We are fearful for our safety; we’ve had a security system installed in our house. We don’t even feel comfortable going into our back yard without looking over our shoulders. I’m constantly looking in my rear view mirror when I’m driving. It’s a very uncomfortable situation to say the least and I’m fearful for my safety. Like I said, he’s very unpredictable and I just don’t know what to expect next.
Looking at the totality of the defendant’s conduct, including the content of his voice-mail messages, and accepting the foregoing evidence, I am satisfied to the requisite standard that the complainant was indeed harassed.

2-This is related to the requirement that the victim must fear for her safety or someone else close to her. Either proving lack of fear or lack of harassment is good enough, both seem to rely on similar criteria.

R. v. Raymond [2014] Q.J. No. 2193 2014 QCCQ 1833

36 But here, the evidence only shows the complainant was on stress or on edge. She was uncomfortable. She did not have peace of mind.
38 The Crown did not establish beyond a reasonable doubt, that the conduct of the accused caused the complainant to fear for her safety or the safety of anyone known to her.
A case where fear wasn’t found.

R. v. Hnatiuk [2000] A.J. No. 545 2000 ABQB 314

41 However, as was pointed out in Sillip, in order to convict an accused of criminal harassment, it is not enough to be satisfied beyond a reasonable doubt that the conduct troubled or badgered the complainant, the court must also be satisfied that the conduct caused the complainant to fear for her safety or the safety of anyone known to her and the fear must, in all of the circumstances, be reasonable.

42 The evidence in this case fails to establish beyond a reasonable doubt that Ms. Haavaldsen reasonably feared for her safety. In fact, the evidence does not establish that Ms. Haavaldsen feared for her safety. Indeed, when the worst of the conduct occurred, which was the threat which occurred during the mediation, the Haavaldsens decided to continue with the mediation. When the mediation was unsuccessful, the Haavaldsens continued with their life, as before. The evidence establishes that they were annoyed by the Hnatiuks, but they were not in fear of them. Ms. Haavaldsen testified, for example, that she continued to go outside, continued to tend her garden, continued to meet her children, continued to walk her dog, etc. Ms. Hnatiuk has argued that the Haavaldsens “gave as good as they got”; the evidence may not go that far, but certainly the evidence establishes that the Haavaldsens were not in fear of the Hnatiuks.
2-Multiple cases stress that to establish criminal harassment, it is necessary to examine the background and context and the details of the relationship.

R. v Alvarez-Gongora, 2014 ONCJ 712,

44 When the Court is considering whether the elements of the offence have been made out, the approach is a contextual one. It is a question of fact for the Court to determine in each case. The Court must consider the conduct that is the subject of the criminal harassment charge against the background of the relationship and the history between the complainant and accused.

R. v. P.M.B. [2011] B.C.J. No. 2499 2011 BCPC 370

10 In order to examine whether the elements of the offence are made out, the court must look beyond the letters and their content and examine the context in which they were written.
Misc

R. v. Wease [2008] O.J. No. 1938 78 W.C.B. (2d) 381

29 The trial judge acknowledged that Mr. Wease did not actually know Mrs. Wease considered herself harassed. (might have some utility for us) Having acknowledged this, however, the trial judge found that the appellant was, at the very least, reckless or willfully blind, “in my opinion, and I think clearly willfully blind in this matter.” He points out that in the appellant’s testimony he made it clear that he, “just didn’t care what effect his actions would have upon the complainant”, and in the trial judges opinion that, “clearly amounts to an admission of willful blindness and by his very acts, I think, he can also be taken to be reckless as to whether or not Mrs. Wease was harassed. Therefore, the third essential element has also been established beyond a reasonable doubt in this matter.”
30 The evidence, however, must be taken in context and it is my view that it does not support such a finding.

R. v. Davis [1999] M.J. No. 477 143 Man.R. (2d) 105

Talks about subjective and objective fear

R. v. Pringle [1999] O.J. No. 3704 43 W.C.B. (2d) 487 No. 982384

14 In the case at bar, the “proscribed conduct” is that specified in para. 264(2)(b) of the Code, to wit, “repeatedly communicating with, either directly or indirectly, the other person or anyone known to them”. Within the charge period, there are 2 written communications, eligible for consideration (Exhibits #1 and #3). I have considered all of the evident pre-charge period conduct of Accused toward Complainant, and find it to amount to no more than non-criminal “workplace harassment” (might have some utility, seem to be different kind of harassments), as between co-employees, notably weird and eccentric behaviour, but not manifestly “criminal” nor “threatening”.

08 January

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The Intoxilyzer

Posted by Rory

in Intoxylizer Operation

Operating the Breath Instrument (Intoxilyzer) Correctly

An excellent decision was provided by Judge Higgerty in Edson, Alberta. The defence counsel in the case was Alan Pearse.

Burping into the Intoxilyzer

The evidence was that the Accused was taken out of the phone room after speaking with a lawyer and asked to provide a breath sample. Given that 15 minutes had not elapsed between being taken out of the phone room and positive evidence that the accused had not burped the judge had reasonable doubt that the machine was not being operated properly. Here is an excerpt:

Depending on whether one is a defence lawyer or a prosecutor, one tends to refer to an Intoxilyzer as a machine or an instrument; being an ex-prosecutor, I will refer to it as an instrument. Certainly a very precise instrument authorized by Parliament to be the centrepiece, if you will, a tool of great use in weeding out impaired drivers on the road, but the fact remains that in many cases an accused is being convicted by an instrument. And I only say that, and it is perhaps a bit of an exaggeration, a bit of a stretch, but I say that in all seriousness because that underscores that the instrument must be operated correctly in order to bring it within the parameters of the Criminal Code of Canad which essentially allows hearsay evidence, a certificate, to be essentially the entire case against an accused.

The requirement is 15 minutes, as set out by the manufacturer, although it seems to be acknowledged by the case law that in most cases 5 minutes would be sufficient, but the manufacturer says 15 minutes. And there is a very good reason for this, the presence of mouth alcohol can result in an unreliable reading.

I did have a question earlier on, and I can perhaps answer my own question, does the accused have to adduce positive evidence that he burped or belched or chewed on a cough drop, that type of thing, during that 15-minute run-up to the first sample and, indeed, I suppose, prior to the second sample as well? And in the real world, given that Officer Jackson had difficulty on the subject of slurred speech, how could we expect an ordinary accused to remember if he or she burped within the 15 minutes prior to providing a sample? So I find that this 15-minute requirement is just as important for the operator to ensure as flipping the right switch at the right time. The 15-minute requirement is an integral part of the operation of the Intoxilyzer and the manufacturer’s requirement was not complied with. I will not speculate as to, and I am lapsing into the vernacular, aw, shucks, golly, it does not mean that much anyway. I will not go there. The facts, to me, are the instrument was operated incorrectly, the manufacturer required that 15 minutes, that 15 minutes was not observed and, therefore, in my view, the instrument was not operated correctly and the presumption cannot be relied upon. Therefore, on the over 08 charge, I also find the accused not guilty.

For a copy of the decision please contact my office at 780-429-4004.Intoxilyzer

03 January

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Expert Witness

Posted by Rory

in expert evidence

Expert Witnesses

A recent case I found to be very troubling. Thankfully, the judge made the right decision and refused to allow the evidence of an expert witness to be admitted to the jury.

In R. v. Calnen [2015] NSSC 330 the Crown sought to tender the opinion of an expert witness, a medical doctor, Dr. Marnie Woods, about the cause of death of the deceased. Let me say at this juncture I am troubled that the Crown would attempt to lead this type of evidence.

The case concerns a fall from a flight of stairs. The defence theory was that the fall caused the death of the deceased. The crown sought to tender expert evidence which went to “the cause and manner of death”.

Doctor’s Opinion

The doctor stated:

“instantaneous death after such a fall would be distinctly unusual given my experience and the reports described in the reviewed literature” but qualified her opinion “many variables and individual factors must be considered … it is not reasonable to describe one expected outcome … the ability to comment more specifically on this case is limited by the absence of a body [she did not examine the body]”.

If you dissect what the doctor is saying here, she is really saying nothing at all. Her evidence can be rewritten as follows:

falling from a flight of stairs usually doesn’t cause death but I can’t be certain that it didn’t in this case because I haven’t seen or examined the body.

The judge in this case found that the doctor’s evidence was too speculative to have merit. Rather, the judge was persuaded by another doctor’s opinion that the evidence sought to be tendered was “anecdotal” and that the cases Dr. Woods referenced were “unpublished”.

I am reminded of how important the scientific method is, and how in this case it was violated in many respects. The scientific method calls for a theory which can be tested. Results are then published so that they can be re-tested and scrutinized via peer review.

In this case the Crown doctor had a theory. She did not examine the body or review the medical history of the deceased to test her theory nor did she use published cases in support of her theory. The doctor’s opinion runs afoul of the scientific method.

Finally, in this case the judge also did not allow the expert evidence because it went to the ultimate issue of the case – murder v accident.

26 November

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Alcohol

Posted by Rory

in as soon as practicable, Defences, Impaired Driving

Taking Samples — Impaired Driving

Case Comment
R. v. Cole 2015 SKPC 109
A recent Saskatchewan Provincial Court decision applies some very important law concerning taking samples “as soon as practicable”.
When the Crown attempts to prove that someone\s blood alcohol limit is “over 80” they usually can do it one of two ways. Remember, the taking of a sample to determine the concentration of blood in a person’s body only tells you what their alcohol level at the time you the test is taken – not at the time of driving.

(1) The criminal code has evidentiary short-cut that allows a court to conclude that the blood alcohol of a person at the time of driving is or was the same at the as the time the test is taken. This is called the presumption of identity. In order for the presumption to apply several things need to be proven including: that each sample was taken “as soon as practicable after the time when the offense was alleged to have been committed”;
(2) Alternatively, the Crown could call an expert to extrapolate times back from when sample taken to when offense was alleged to have occurred.
In R. v. Cole, a classic defense was raised. Mr. Cole argued that samples where not taken as soon as practicable because the police officer’s waited for a tow truck before transporting the accused back to give a sample.

The judge concluded that it was not necessary for both officers to wait for the tow truck because the car was parked in a safe manner only a few blocks from the police station. Also, they could have called another police officer to assist, they could have waited to have his car towed and there were no passengers that had to be dealt with.
Although the delay in this case was short (12 minutes) the judge determined that the police did not act reasonably in the circumstances.

The touchstone for determining whether the tests were taken as soon as practicable is whether the police acted reasonably (para 12 R. v. Vanderbruggen [2006] 206 CCC (3d) 489 Ont C.A.

Therefore, the Crown were not allowed to use the presumption of identity. The Crown then asked the judge to take judicial notice of the fact that the accused’s blood alcohol would not have been that different from the time of driving to the time the test was taken. He was not prepared to do that. The Crown needed to call an expert and they failed to do so.

11 November

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Form 3115 for a Cash to Accrual Method for Small Businesses

Posted by Andrew

in Legal Advice, Necessary Forms

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09 November

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