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Edmonton Criminal Lawyer Ziv > Posts tagged "dui"
20 April
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Rory Ziv: Top 3 DUI Lawyers in Edmonton, AB

Posted by pantelis
in dui, Impaired Driving, lawyer, ziv
Rory Ziv Top Dui Lawyer

This year, Rory Ziv has been selected as one of the top 3 DUI lawyers in Edmonton Alberta by Three Best Rated® (CANADA). He is proud and extremely honoured to have been selected as one the top 3 local DUI lawyers in Edmonton because, for decades, Rory Ziv has been diligently representing individuals from all walks of life who have been facing DUI charges. 

An Impartial Evaluation

This ward is a true honour because Three Best Rated® (CANADA) aims to find the top 3 local DUI lawyers by conducting thorough checks and reviews of prospective candidates. They conduct a 50-Point Inspection which includes business’s reviews, history, complaints, ratings, nearness, satisfaction, trust, cost, general excellence, and reputation. Most importantly those awarded do not pay Three Best Rated® to list them. The award-winners are listed for free because as they say “…if you can pay to list, then is it really the best business? No Pay to Play!”

Best Dui lawyers in Edmonton

Rory Ziv is excited to be among the Top 3 local DUI lawyers in Edmonton since the years of hard work he has spent defending individuals charged with impaired driving offences have been recognized not only by his clients but also but an impartial third party. 

What Makes Rory Ziv The Right Choice For You

As the founding and managing partner of Ziv Law Group, Rory Ziv is a highly sought-after DUI and criminal trial attorney. He is well-known for his extensive preparation, attention to detail and considerable knowledge of the provincial and federal criminal code. However, what characterizes Rory Ziv as a top DUI and criminal lawyer is his relentless, unshakeable and passionate advocacy on behalf of his clients.

Rory Ziv has always known that being charged with DUI can be intimidating, that is why he carefully assesses the case against his clients and works with them to obtain the best possible result available, whether that is a withdrawal of the charge, a reduction at sentencing or even a full acquittal at trial.

If you are ever charged with DUI or any other criminal offence, it is important to call our office as soon as possible at 780-686-7948 because you deserve the best defence possible!

15 April
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NEW MARIJUANA AND DUI LAW

Posted by Rory
in Charter Rights, Defences, dui, lawyer, lawyer edmonton, search or seizure, Search Warrants

NEW MARIJUANA AND DUI LAW Sucking and Blowing

Two new bills were proposed by the government of Canada this week. The new marijuana bill which legalizes possession of 30g or four marijuana plants and new impaired driving legislation.

The link for the new marijuana bill is here:

The link for the new impaired driving link is here:

The Marijuana Bill

I can’t help but to notice that the new marijuana bill is – confusing. Confusing not because its badly worded, structured or illogical but because it sends a conflicting message:

The purpose of the act is set out in section 7 which states:

The Act’s purpose is to “protect public health and public safety” by restricting its access (especially to children), deterring illegal activities associated with cannabis, while at the same time, relieving the burden it places on the criminal justice system and providing access to quality controlled products.

In the same breath, the government is underscoring that marijuana is dangerous “to protect public health and safety” yet advocating for its access.

I’m not advocating a position on marijuana. I’m only highlighting the apparent contrast in the new Act.

The Impaired Driving Bill

I read in a newspaper piece that stated that impaired driving laws have “softened” because of “high priced lawyers” are finding “loopholes”.  Without commenting more on this naïve perspective of the role of criminal defence lawyers, my reading of the new Act (which seems to be cut and paste) of our previous Government’s work (which was not enacted because of the regime change at the last election) the new Act is certainly going to test our relationship as individuals with our government.

One of the glaring new sections 320.27(2) authorizes a peace officer to demand a sample of your breath without any grounds whatsoever to believe you have any alcohol in your body.

This is going to create a significant amount of DUI litigation.   To begin, people don’t like to be told what to do and now we are going to force them to provide a sample of their breath when they have done nothing wrong.

What I find interesting is there has been a push to cease DUI litigation with alternative provincial administrative type enforcement. In British Columbia for example, DUI cases are no longer prosecuted (with some exceptions) because the Provincial government has found other more cost effective ways to deter and punish people for impaired driving. This new legislation coupled with the legalization of marijuana is going to reverse the progressive steps taken in jurisdictions like British Columbia.

Since the legalization of marijuana is coupled with get tough on crime and impaired driving initiatives, I can’t help to feel like the Government is sucking and blowing. We may have taken one step forward by legalizing marijuana but I wonder if we have also taken two steps back?

06 October
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Travis Vader CAse

Posted by Rory
in Contemporary Cases, Murder

Vader Strikes Back– A review of the Travis Vader decision.

 

The Travis Vader decision[1] has captured the interest of Albertans. Apparently as the decision was being broadcast live, a novelty in Canadian trial law, commentators were contemporaneously questioning the correctness of the trial judge’s decision on social media.

I have decided to review the case for myself and offer some insight.

The case itself is long. It is full of dense factual findings. I have included a summary of the judges overall findings:

…. While I have concluded that a firearm was used during the interaction between Mr. Vader and the McCanns, and that firearm caused the hole in the Boag’s hat, I cannot establish who fired the gun or at whom, and the blood drop and spatter pattern on the Boag’s hat does not suggest the bullet that passed through the hat and caused an injury to someone wearing that hat. The blood, largely from Lyle McCann, is on the top of the hat.

      My conclusion on that point, however, does not affect my conclusion that violence occurred in the interaction between the McCanns and Mr. Vader. There was bloodshed. A gun was discharged. While I cannot reconstruct the exact detail of what occurred, I also have no doubt about the overarching relevant fact – the McCanns were victims of violence. Mr. Vader inflicted that violence. The McCanns suffered bodily harm. The presence of their blood makes that obvious.[2]

     Linking the facts I have found there is no question that Mr. Vader committed homicide. The McCanns are dead. They were the subjects of violence that caused bloodshed. Mr. Vader’s biological material is mixed with blood from Lyle McCann. Mr. Vader’s motivation to interact with the McCanns was theft. Forensic and witness evidence links Mr. Vader to the McCanns’ property.

    Mr. Vader caused what happened to the McCanns. The Crown’s evidence and the inferences I have drawn from that evidence do not permit a detailed reconstruction of the circumstances that led to the McCanns’ death, and how Mr. Vader caused those deaths. However, I conclude beyond a reasonable doubt that Mr. Vader, in one manner or another, caused the death of the Lyle and Marie McCann. My next step is to determine the legal implications of that fact.[3]

What the learned trial judge does next is conclude that the McCanns death was caused during the commission of a theft by Vader on the McCanns. The trial judge relies on section  s. 230 of the Criminal Code (outdated section) which states that you are guilty of murder when a person dies in the course of committing a robbery.[4]

     I have concluded beyond a reasonable doubt that Mr. Vader intended to and did steal property from the McCanns. I have also concluded beyond a reasonable doubt that the McCanns experienced bodily harm, as is demonstrated by the forensic blood evidence. The McCanns are dead, and the only reasonable inference I can draw is the bloodshed evidence indicates the McCanns were killed by Mr. Vader’s actions.[5]

The legal problem in this case is as follows:

In Canada a murder is committed when you intended to cause death or grievous bodily harm knowing death is likely.

The learned trial judge did not find that Vader meant to cause death or meant to cause bodily harm — just that he did cause it.

In one portion his judgment he says:

     The problem is there are other reasonable possibilities that can take us from a robbery gone bad to two dead senior citizens. The most obvious is that Mr. Vader encountered the two McCanns together while trying to commit a robbery, the McCanns both physically resisted Mr. Vader, that fight escalated, and in that struggle both McCanns were fatally injured.[6]

So if Vader didn’t deliberately kill the McCanns or inflict bodily harm on them knowing death was likely then where does the case go?

Some Crown prosecutors I have spoken to suggest that Vader could still be convicted of manslaughter, which is an unlawful act that causes death.  They suggest that the learned trial judge made good findings of fact that should not be disturbed.

If a court, I suspect this case will go to the Alberta Court of Appeal, was going to determine that manslaughter was committed they will have to make a finding of fact that the learned trial judge hasn’t made. How did Mr. Vader kill the McCann’s and was it unlawful violence?

The unfolding of the remainder of this case is going to be interesting … stay tuned!
[1] http://www.canlii.org/en/ab/abqb/doc/2016/2016abqb505/2016abqb505.html?resultIndex=5
[2] Paras 674 and 675
[3] 676 and 677
[4] A robbery is theft with violence.
[5] Para 688
[6] Para 686

15 March
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Colour of Right

Posted by Rory
in Defences, Uncategorized

Theft and Colour of Right

Theft

322 (1) Every one commits theft who fraudulently and without colour of right takes, or fraudulently and without colour of right converts to his use or to the use of another person, anything, whether animate or inanimate, with intent

(a) to deprive, temporarily or absolutely, the owner of it, or a person who has a special property or interest in it, of the thing or of his property or interest in it;

(b) to pledge it or deposit it as security;

(c) to part with it under a condition with respect to its return that the person who parts with it may be unable to perform; or

(d) to deal with it in such a manner that it cannot be restored in the condition in which it was at the time it was taken or converted.

Motor vehicle theft

333.1 (1) Everyone who commits theft is, if the property stolen is a motor vehicle, guilty of an offence and liable

(a) on proceedings by way of indictment, to imprisonment for a term of not more than 10 years, and to a minimum punishment of imprisonment for a term of six months in the case of a third or subsequent offence under this subsection; or

(b) on summary conviction, to imprisonment for a term of not more than 18 months.

 

WHAT DOES THE CROWN NEED TO PROVE?

This case will hinge on whether the alleged theft took place fraudulently and without colour of right. Case law suggests that both defences are related and will hinge on similar facts.

Fraudulent Intent

R v Laroche, [1964] SCR 667

Honest but mistaken belief works

Colour of Right

R v Lilly (1983), 34 CR (3d) 1, R v. Shymkowich, 19 CR 401

Honest but mistaken belief works

“With respect, this is clearly, in my view, misdirection in law. The fate of the accused’s defence of colour of right was not dependent upon the jury determining when the commissions were payable. That question was indeed important as relevant to whether the monies were his or those of his clients. The fact that they still be the property of the client was a prerequisite to his having to raise a defence to the taking or conversion. Rather, the accused’s defence was dependent upon whether they, the jury, were satisfied beyond a reasonable doubt that he, the accused, had not, at the time of the transfers, an honest belief that he had the right to that money, and not, as they were told, dependent upon what they, the jurors, thought his rights were.”

 

Noting up Colour of Right Cases

Lilly is the foundational case in this area. It is important to note that in Lilly, a case decided in ’83, the alleged theft involved almost 27 thousand dollars, a lot of money now. But the SCC was very clear in stating that honest but mistaken belief is always a defence to theft.

R. v. Abramenko  [2008] A.J. No. 61, 2008 ABPC 23

Alberta Provincial Court case that does a good job of canvassing the law.

Further, I am satisfied that the accused had a colour of right when he withdrew the monies from Brent’s account. In R. v. Dorosh (G.) (2004) 241 Sask. R. 180 (Sask. C.A.), Bayda C.J.S., speaking for the panel, at paragraphs 16 – 18 inclusive, gave the following explanation of the concept of “colour of right”:

“[16] The jurisprudential history surrounding the phrase ‘colour of right’ indicates that the meaning of the phrase has a certain quality of elusiveness (see The Law of Theft and Related Offences by Winifred H. Holland (Toronto: Carswell, 1998) at pp. 150-170). The definition of the phrase by Martin J.A., speaking for the Court (including Gale C.J.O., and Estey J.A.), in R. v. DeMarco (1973), 13 C.C.C. (2d) 369 (Ont. C.A.) at 372 may be taken to have settled many, if not all, of the contentious issues raised by earlier Canadian cases where the phrase was considered. He said:

‘The term “colour of right” generally, although not exclusively, refers to a situation where there is an assertion of a proprietary or possessory right to the thing which is the subject-matter of the alleged theft. One who is honestly asserting what he believes to be an honest claim cannot be said to act “without colour of right”, even though it may be unfounded in law or in fact: see R. v. Howson, [1966] 3 C.C.C. 348; 55 D.L.R. (2d) 582, [1966] 2 O.R. 63. The term “colour of right” is also used to denote an honest belief in a state of facts which, if it actually existed would at law justify or excuse the act done: R. v. Howson. The term when used in the latter sense is merely a particular application of the doctrine of mistake of fact.’

[17] Since DeMarco was decided, the Supreme Court of Canada has dealt with the ‘colour of right’ issue in two cases: R. v. Lilly, [1983] 1 S.C.R. 794; 48 N.R. 140; 24 Sask.R 50 and R. v. Jones and Pamajewon, [1991] 3 S.C.R. 110, 137 N.R. 321. Nothing said in the judgments in either of those cases in any way detracts from Martin, J.A.’s, definition. If anything, the court’s decision in Lilly may be said to impliedly support the definition. In two other cases, R. v. Lafrance, [1975] 2 S.C.R. 201 and R. v. Milne, [1992] 1 S.C.R. 697; 135 N.R. 202; 125 A.R. 135; 14 W.A.C. 135; [1992] 3 W.W.R. 97; 85 Alta. L.R. (2d) 257; 12 C.R. (4th) 175; 70 C.C.C. (3d) 481, the ‘colour of right’ issue arose only incidentally and not as a principal issue. These judgments as well contain nothing that detracts from the DeMarco definition.

[18] A colour of right can have its basis in either a mistake of civil law (a colour of right provides an exception to s. 19 of the Code; see: The Law of Theft and Related Offences p. 153) or in a mistake in a state of facts. The mistake in each case must give rise to either an honest belief in a proprietary or possessory right to the thing which is the subject matter of the alleged theft or an honest belief in the state of facts which if it actually existed would at law justify or excuse the act done.”

40     In the case at Bar, the accused honestly believed that he had the right to borrow money from his son’s AISH account (and, on the facts as I have found them, he did have that right). While the AISH monies were to be used for the benefit of Brent, I take from Ms. Mittelstadt’s testimony that the right to borrow did not depend upon the borrowing being for the benefit of the trust beneficiary. The fact that the accused had an honest belief that his borrowing and use of the funds was to the benefit of Brent goes not to the issue of “colour of right”, but rather it goes to the question of whether the acts of the accused were fraudulent (an issue with which I have already dealt).

41     I am completely satisfied that the accused had a colour of right to do that which he did.

R. v. DeMarco  [1973] O.J. No. 533

(This is an older case than Lilly, but on point)

Involved a vehicle, accused had kept a rental vehicle beyond due date, and had not paid, she thought there was nothing wrong with her behaviour and she could just pay them later

“The term “colour of right” generally, although not exclusively refers to a situation where there is an assertion of a proprietary or possessory right to the thing which is the subject matter of the alleged theft. One who is honestly asserting what he believes to be an honest claim cannot be said to act “without colour of right”, even though it may be unfounded in law or in fact. Reg. v. Howson, [1966] 2 O.R. 63. The term “colour of right” is also used to denote an honest belief in a state of facts which, if it actually existed would at law justify or excuse the act done: Reg. v. Howson, supra. The term when used in the latter sense is merely a particular application of the doctrine of mistake of fact.”

R. v. Pena – [1997] B.C.J. No. 1405

Very interesting case, stands for the proposition that mistake of law is also included in colour of right defence. (On reflection, this is backed up in other cases too, plus this seems self-evident because colour of right is an element of the office and mistake about it (which can include mistake of law) should be a defence)

“However, as noted by Stuart in Canadian Criminal Law, supra at 308, “it now seems clear that colour of right can also result from a pure mistake of law.”

11     In R. v. Howson, [1966] 3 C.C.C. 348 (Ont. C.A.), a case where a car towing company had been charged with the theft of a car, Porter C.J.O. reviewed the law regarding colour of right and mistake of law, and held, at p. 356:

In my view the word “right” should be construed broadly. The use of the word cannot be said to exclude a legal right. The word is in its ordinary sense charged with legal implications. I do not think that s. 19 affects s. 269 [now s. 429]. Section 19 only applies where there is an offence. There is no offence if there is colour of right. If upon all the evidence it may fairly be inferred that the accused acted under a genuine misconception of fact or law, there would be no offence of theft committed. The trial tribunal must satisfy itself that the accused has acted upon an honest, but mistaken belief that the right is based upon either fact or law, or mixed fact and law.

12     Accordingly, in R. v. DeMarco (1974), 13 C.C.C. (2d) 369 at 372 (Ont. C.A.), where the accused had rented a car and not returned it on time because she did not think that she was obliged to, Martin J. held:

The term “colour of right” generally, although not exclusively, refers to a situation where there is an assertion of a proprietary or possessory right to the thing which is the subject-matter of the alleged theft. One who is honestly asserting what he believes to be an honest claim cannot be said to act “without colour of right”, even though it may be unfounded in law or in fact…The term “colour of right” is also used to denote an honest belief in a state of facts which, if it actually existed would at law justify or excuse the act done…The term when used in the latter sense is merely a particular application of the doctrine of mistake of fact.
13     An honest belief concerning property rights, whether based on a mistake in fact or in law, may constitute a colour of right: Lilly v. The Queen (1983), 5 C.C.C. (3d) 1 (S.C.C.). (I don’t think Lilly makes this clear at all, it talks about mistake of fact

14     Recently, in R. v. Jorgensen (1995), 102 C.C.C. (3d) 97 (S.C.C.), Lamer C.J.C. noted at pp. 102-103 of his dissenting opinion that:

Despite the importance of [the rule against ignorance of the law] some exceptions to it are already established in our law…a certain number of our Criminal Code offenses provide an excuse for an accused who acted with colour of right. The existence of these exceptions demonstrates that the ignorantia juris rule is not to be applied when it would render a conviction manifestly unjust.

15     By implication, Lamer C.J.C. apppears to acknowledge that the colour of right defence includes mistake of law.

16     Finally, Penashue, supra, R. v. Drainville (1991), 5 C.R. (4th) 38 (Ont. Prov. Ct.) and R. v. Potts, [Q.L. [1990] O.J. No. 2567] (Ont. Prov. Ct.) a11 involve fact situations similar to present case. The accused were charged with mischief for occupying what they claimed were aboriginal lands. In all three cases, it was accepted that mistake of law was included in the colour of right defence, and the Court instead focused on the issues of a moral as opposed to legal right, and the accused’s “honest belief.””

04 March
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Right to Counsel

Posted by Rory
in Charter Rights, implemenational duties, right to counsel

Right to Counsel

Implementational Duties

 

In considering right to counsel, R v Street, 2016 SKPC 7, provides interesting insight into the nature of implementational duties under S 10 (b) of the Charter of Rights and Freedoms.

Facts: After being arrested for impaired driving, Street asked to speak to a lawyer by the name of McKay. The constable with her dialed the number, but did not wait for a response. He then dialed another number, and subsequently dialed Legal Aid. It was the Constable’s idea to call Legal Aid.

Analysis: Hinds J quotes R v Kreiser, 2013 SKPC 107 in explaining the nature of the duty under s 10 (b).

S 10 (b) or “the right to counsel has an information component and an implementation component. The information component requires the police to inform the detainee of the right to retain and instruct counsel without delay, and of the existence and availability of Legal Aid and duty counsel: R. v. Luong, 2000 ABCA 301.”

“The implementation component of the right to counsel is two-fold, and arises when the detainee expresses a desire to exercise the right to counsel. First, it requires the police to give the detainee a reasonable opportunity to contact counsel. Second, it requires the police to hold off on attempts to gather evidence until the detainee has had that reasonable opportunity (except, of course, in situations of urgency or danger): R. v. Luong, supra; R. v. Bartle, [1994] 3 S.C.R. 173; R. v. Sinclair, 2010 SCC 35, [2010] 2 S.C.R. 310.”

The judge also uses Kreiser to note that these duties are not absolute and that reasonable diligence is required by the detainee in attempting to contact counsel.

The judge finds that the interpretational duty was violated in this case. In particular, he is concerned that the “Constable pushed Ms. Street in the direction of Legal Aid as a convenient way of fulfilling the requirements of section 10 (b) of the Charter when he dialed the telephone number for Legal Aid duty counsel at 3:24 a.m.”

The judge goes on to note that “Put another way, I am of the view that he streamed Ms. Street towards Legal Aid. I find that Constable Boprai did not act diligently in facilitating the right of Ms. Street to contact her counsel of choice. He could have and should have waited more than a few minutes for a return call from Mr. McKay. I find that Constable Boprai breached his implementational duty.”

Note: In cases where a detainee does not have a lawyer, or is unable to contact the lawyer of his/her choice, it is appropriate to remind him/her of legal aid options.

08 February
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Unreasonable Search and Seizure — ACM –Airbag Control Modules

Posted by Rory
in Charter Rights, Search Warrants

Airbag Control Modules

In R v Hamilton 2014 ONSC 447, the Court conducts an exhaustive analysis of what constitutes unreasonable search and seizure as per section 8 of the charter. The issue in this case is whether accessing the data stored on the Airbag Control Module (“ACM”) without prior judicial authorization violates s8.
The court establishes that s8 analysis consists of asking if a) there is a reasonable expectation of privacy b) the search was reasonable.
A-Reviewing the case law, the court points out that whether an expectation exists, it is necessary to look at a)The Applicant’s Subjective of Privacy and b) Is the Expectation of Privacy Objectively Reasonable in the Totality of the Circumstances?
The subjective component is not a high threshold, and it depends upon the subject matter of the search and whether the applicant had a direct interest in it. The court notes that the subject matter of the search was not the ACM as a physical object, but the date stored within in, and that the applicant had a direct interest in the data.
Whether the expectation is objectively reasonable depends on a number of questions, suggested in Edwards. The court examines these questions and finds that the expectation was objectively reasonable.
Finding that a reasonable expectation of privacy exists, the court evaluates whether the search was reasonable. The court finds that -1-The search was not authorized by law and that 3-the search itself was not reasonable. 2-The court does not address whether the law in question was itself unreasonable.
It is important to note that the court’s analysis in both establishing that there is a reasonable expectation and that the search was unreasonable acknowledges the problematic nature of the officer’s conduct. There is not a single factor that the court finds in favour of the crown in this part of the analysis. And this forms the bulk of the decision. The court spends an awful lot of time in establishing that the conduct was a breach of s8.
However, when it comes to the remedy under s24, the analysis is brief and the court is quick to establish that the administration of justice will not be brought into disrepute by including this evidence. The court says that the 1- the charter breach is not particularly serious, and that the court must take into account the conduct of the applicant that led to the charter breach. 2-The court also says that the impact on the charter protected interests of the applicant is moderate and that 3- the reliability of the evidence weights in favour of inclusion (Society’s interest in an adjudication on the merits)
Balancing the factors, the court finds in favour of including the evidence.
My thoughts: This case was enlightening purely for the huge gulf between the s8 and s24 analysis. In the s8 analysis the court seems far more cognizant of the accused’s rights, whereas s24 seems to exist solely to provide legal sanction to include evidence that infringes charter rights.

R v Shaw 2016 ONSC 658
The Appellant was convicted of failing to provide a breath sample, but appealed because the testimony consisted of evidence by adult witnesses that was not sworn or affirmed.
The judge reviews the law and finds that for adult witnesses the proper way to receive evidence is by testifying under oath or by solemn affirmation. The cases provided by the crown deal with witnesses with specific considerations for testifying. No such considerations are in operation in the facts here.
The judge notes with approval the cases cited by the Appellant. In Matheson, failure to follow strict compliance with having evidence taken under oath, the process was rejected. Similarly, in Kalkhorany, the court found that a trial procedure could not be remedied when the trial began as a summary conviction, and when the six month time period for commencing expired, the process was converted into a trial by indictment. The court found that the formality of reconstituting the court and taking a proper plea on the process had to be followed or specifically waived.
Rejecting, the crown’s assertion that this was a procedural issue, the judge quashes the conviction.

08 February
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Recollection and Demeanour Evidence

Posted by Rory
in credibility

I took these articles from Alan Gold’s February 8, 2016 weekley newsletter. assessing evidence. demenour. recollection.

 

Evidence based on recollection

15.An obvious difficulty which affects allegations and 
     oral evidence based on recollection of events which 
     occurred several years ago is the unreliability of human 
     memory. 
 
     16.While everyone knows that memory is fallible, I do not 
     believe that the legal system has sufficiently absorbed 
     the lessons of a century of psychological research into 
     the nature of memory and the unreliability of eyewitness 
     testimony. One of the most important lessons of such 
     research is that in everyday life we are not aware of the 
     extent to which our own and other people’s memories are 
     unreliable and believe our memories to be more faithful 
     than they are. Two common (and related) errors are to 
     suppose: (1) that the stronger and more vivid is our 
     feeling or experience of recollection, the more likely 
     the recollection is to be accurate; and (2) that the more 
     confident another person is in their recollection, the 
     more likely their recollection is to be accurate. 
 
     17.Underlying both these errors is a faulty model of 
     memory as a mental record which is fixed at the time of 
     experience of an event and then fades (more or less 
     slowly) over time. In fact, psychological research has 
     demonstrated that memories are fluid and malleable, being 
     constantly rewritten whenever they are retrieved. This is 
     true even of so-called ‘flashbulb’ memories, that is 
     memories of experiencing or learning of a particularly 
     shocking or traumatic event. (The very description 
     ‘flashbulb’ memory is in fact misleading, reflecting as 
     it does the misconception that memory operates like a 
     camera or other device that makes a fixed record of an 
     experience.) External information can intrude into a 
     witness’s memory, as can his or her own thoughts and 
     beliefs, and both can cause dramatic changes in 
     recollection. Events can come to be recalled as memories 
     which did not happen at all or which happened to someone 
     else (referred to in the literature as a failure of 
     source memory). 
 
     18.Memory is especially unreliable when it comes to 
     recalling past beliefs. Our memories of past beliefs are 
     revised to make them more consistent with our present 
     beliefs. Studies have also shown that memory is 
     particularly vulnerable to interference and alteration 
     when a person is presented with new information or 
     suggestions about an event in circumstances where his or 
     her memory of it is already weak due to the passage of 
     time. 
 
     19.The process of civil litigation itself subjects the 
     memories of witnesses to powerful biases. The nature of 
     litigation is such that witnesses often have a stake in a 
     particular version of events. This is obvious where the 
     witness is a party or has a tie of loyalty (such as an 
     employment relationship) to a party to the proceedings. 
     Other, more subtle influences include allegiances created 
     by the process of preparing a witness statement and of 
     coming to court to give evidence for one side in the 
     dispute. A desire to assist, or at least not to 
     prejudice, the party who has called the witness or that 
     party’s lawyers, as well as a natural desire to give a 
     good impression in a public forum, can be significant 
     motivating forces. 
 
     20.Considerable interference with memory is also 
     introduced in civil litigation by the procedure of 
     preparing for trial. A witness is asked to make a 
     statement, often (as in the present case) when a long 
     time has already elapsed since the relevant events. The 
     statement is usually drafted for the witness by a lawyer 
     who is inevitably conscious of the significance for the 
     issues in the case of what the witness does nor does not 
     say. The statement is made after the witness’s memory has 
     been “refreshed” by reading documents. The documents 
     considered often include statements of case and other 
     argumentative material as well as documents which the 
     witness did not see at the time or which came into 
     existence after the events which he or she is being asked 
     to recall. The statement may go through several 
     iterations before it is finalised. Then, usually months 
     later, the witness will be asked to re-read his or her 
     statement and review documents again before giving 
     evidence in court. The effect of this process is to 
     establish in the mind of the witness the matters recorded 
     in his or her own statement and other written material, 
     whether they be true or false, and to cause the witness’s 
     memory of events to be based increasingly on this 
     material and later interpretations of it rather than on 
     the original experience of the events. 
 
     21.It is not uncommon (and the present case was no 
     exception) for witnesses to be asked in cross-examination 
     if they understand the difference between recollection 
     and reconstruction or whether their evidence is a genuine 
     recollection or a reconstruction of events. Such 
     questions are misguided in at least two ways. First, they 
     erroneously presuppose that there is a clear distinction 
     between recollection and reconstruction, when all 
     remembering of distant events involves reconstructive 
     processes. Second, such questions disregard the fact that 
     such processes are largely unconscious and that the 
     strength, vividness and apparent authenticity of memories 
     is not a reliable measure of their truth. 
 
     22.In the light of these considerations, the best 
     approach for a judge to adopt in the trial of a 
     commercial case is, in my view, to place little if any 
     reliance at all on witnesses’ recollections of what was 
     said in meetings and conversations, and to base factual 
     findings on inferences drawn from the documentary 
     evidence and known or probable facts. This does not mean 
     that oral testimony serves no useful purpose – though its 
     utility is often disproportionate to its length. But its 
     value lies largely, as I see it, in the opportunity which 
     cross-examination affords to subject the documentary 
     record to critical scrutiny and to gauge the personality, 
     motivations and working practices of a witness, rather 
     than in testimony of what the witness recalls of 
     particular conversations and events. Above all, it is 
     important to avoid the fallacy of supposing that, because 
     a witness has confidence in his or her recollection and 
     is honest, evidence based on that recollection provides 
     any reliable guide to the truth. 
 
     23.It is in this way that I have approached the evidence 
     in the present case. 
 
— Gestmin SGPS SA v Credit Suisse (UK) Ltd & Anor, [2013]
EWHC 3560 (Comm); URL:
http://www.bailii.org/ew/cases/EWHC/Comm/2013/3560.html 

Demeanour evidence                           

    “44 This court has repeatedly cautioned against giving 
     undue weight to demeanour evidence because of its 
     fallibility as a predictor of the accuracy of a witness’s 
     testimony: Law Society of Upper Canada v. Neinstein, 
2010 ONCA 193, 99 O.R. (3d) 1, at para. 66; R. v. Rhayel, 
2015 ONCA 377, 324 C.C.C. (3d) 362. As I indicated in Rhayel, 
     at para. 85, “[i]t is now acknowledged that demeanour is 
     of limited value because it can be affected by many 
     factors including the culture of the witness, 
     stereotypical attitudes, and the artificiality of and 
     pressures associated with a courtroom.” 
 
          45 Although the law is well settled that a trial 
          judge is entitled to consider demeanour in assessing 
          the credibility of witnesses, reliance on demeanour 
          must be approached cautiously: see R. v. S. (N.), 
          2012 SCC 72, [2012] 3 S.C.R. 726, at paras. 18 and 
          26. Of significance in this case is the further 
          principle that a witness’s demeanour cannot become 
          the exclusive determinant of his or her credibility 
          or of the reliability of his or her evidence: R. v. 
          A. (A.), 2015 ONCA 558, 327 C.C.C. (3d) 377, at 
          para. 131; R. v. Norman (1993), 16 O.R. (3d) 295 
          (C.A.), at pp. 313-14. 
 
          46 It is of note that the trial judge started his 
          assessment of the appellant’s credibility by 
          expressing his concern about how the appellant 
          testified: 
 
               It was my impression that the [appellant] 
               testified in a careful fashion which lacked any 
               spontaneity. He appeared to me to be a witness 
               who was prepared and aware of what his evidence 
               should be to raise a reasonable doubt as 
               opposed to a retired teacher wrongfully accused 
               of fondling a young male 20 years ago. 
 
          47 This paragraph troubles me for two reasons. 
 
          48 First, the trial judge found the appellant’s 
          credibility was diminished because he testified in a 
          manner that was too careful. The problem I have with 
          this is that the trial judge had no reference point. 
          He did not know how the appellant normally expressed 
          himself. Moreover, the appellant’s “careful fashion” 
          of testifying may relate to such factors as the 
          unfamiliar atmosphere of the courtroom, the 
          artificiality of the circumstances under which the 
          appellant was being asked to provide information and 
          the pressure he was under given what was at stake. 
 
          49 Second, I am concerned by the trial judge’s 
          finding that the appellant testified more like 
          someone trying to raise a reasonable doubt than 
          someone wrongfully accused of sexually assaulting a 
          student. The trial judge provided no insight as to 
          how he arrived at that conclusion, particularly how 
          the differences between the two types of testimony 
          might manifest themselves. General assertions such 
          as this are, with respect, not only unhelpful but 
          also defy appellate review.” 
 
— R. v. Hemsworth [2016] O.J. No. 505 (C.A.) 

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

 

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.

04 November
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Pretext Stops

Posted by Rory
in Charter Rights, detention

The “real” reason for the stop (pretext stops)

In Canada, Police are given generous police power when stopping motor vehicles. For example, they are allowed to conduct random stops to check that a driver is properly licensed and has his papers in order. However, Canadian law does draw a line. If it can be shown that that the sole purpose of the stop was to further the other criminal investigation and that there was no intention at all to investigate or pursue the other traffic infraction, the police action can be classified as a ruse or pretext (a pretext is a reason you give to hide the real reason you are doing something.)

The police stop – pretext stop

In R. v. Gayle 2015 ONCJ 575, Justice B. W. Duncan concluded that the a stop of a traffic infraction was nothing more than a ruse to investigate a subject about whether he was in fact following bail conditions (something that the police cannot stop a person for).  In deciding whether a stop has been carried out for a legitimate purpose or as a mere ruse the following questions are useful:

·        Did the traffic concerns continue to manifest themselves throughout the detention concurrently with the other investigation?

·        Was the traffic investigation immediately non-existent or almost immediately abandoned?

·        Was a ticket issued for the traffic violation or was it issued much later in the investigation?

·        Was the stop valid absent the traffic violation i.e. were there grounds for stopping the vehicle absent a traffic violation?

The Supreme Court of Canada

The leading case from the Supreme Court of Canada on this issue is R. v. Nolet [2010] 1 SCR 851. At para 39 of that decision the Courts stated:

Police power, whether conferred by statute or at common law, is abused when it is exercised in a manner that violates the Charter rights of an accused. This is a better framework of analysis, in my opinion, than the “predominant purpose” test applied here by the trial judge. If the Charter is violated, it makes little difference, I think, that the police had in mind multiple purposes. A valid regulatory purpose, whether predominant or not, would not sanitize or excuse a Charter violation.

In Nolet a regulatory search led to the discovery of drugs. Although the officer had suspicion that something was out of place, his reason for searching a bag which ultimately was found to have drug-money in it was to search for vehicle related documents.

Some may view Nolet as being a very pro-Crown friendly case, but I beg to differ. Nolet is very factual. In most cases I suspect the door will be left wide open for a trial judge to find that a police authority was using regulatory authority as a pretext for conducting a criminal search. In Nolet the following para (44) illustrate the point I am making:

The trial judge did not express any doubt about the officer’s evidence that relevant papers were frequently dispersed around a cab, often collected in a bag similar to the one at issue here, and that when he “pushed down on the duffel bag, [he] felt and heard paper products inside” (A.R., vol. 2, at p. 181). In other words, the officer did not proceed immediately to open the bag without some preliminary evaluation of its likely relevance to the regulatory search. The paper contents felt more like items connected to the H&TA inquiry than if the contents had felt solid in a way that might have indicated personal clothing (or drugs). In the circumstances, it was not unreasonable, given the appellants’ very limited privacy interest, for the officer to open the bag. At that point, the cash was in plain view.