10/07 - Keep it in – Minor Breaches of the Charter
05/07 - When To Talk And Not To Talk: Voluntariness in the Context of Drinking and Driving
11/06 - Impaired Driving Investigations - Right in Your Own Driveway

Keep it in – Minor Breaches of the Charter are Okay with the Court

(October2007)

There is no doubt that impaired driving is a serious social issue affecting Canadians across Canada. The consequences of a conviction for impaired driving can have long lasting implications for an individual. This is partly why impaired driving cases account for the largest percentage of cases litigated in the Provincial courts. Charter jurisprudence has matured within this context. Consequences for Charter breaches such as the right to speak with counsel of choice, or an unreasonable seizure of breath have traditionally resulted in exclusion of the breath readings with little analysis of s. 24(2).

A recent decision of Mr. Justice Ducharme sitting on an appeal of an acquittal of an Over 80 charge in Regina v. Padavattan, [2007] O.J. 2003, has been heralded by some Crown Attorney as a pivotal decision establishing that a breach of Charter rights does not mean that conscriptive evidence (breath samples) must always be excluded. Indeed this judgment garnered considerable media attention as being noted in a Toronto Star article of July 13, 2007 as “Precedent-setting drunk-driving incident expected to have major impact on other cases.”

Mr. Padavattan had pulled up to a McDonald’s drive through and appeared drunk to the cashier. Police were called and when Mr. Padavattan was stopped, police made a demand under s. 254(2) of the Criminal Code for a roadside breath sample. The officer who had formed the suspicion that Mr. Padavattan had previously consumed alcohol called for another officer to attend with the breath machine. At trial the defence brought an Application to exclude the results alleging an unreasonable seizure of the accused’s breath. The second officer did not testify and the issue was whether the Crown was required to prove that the officer who physically administers the test must have the reasonable suspicion. The trial court found that since there was no evidence that the administering officer had a reasonable suspicion, the accused’s right was violated and the readings were excluded. The Crown appealed.

The routine exclusion of breath samples has generally be based on the view that the Supreme Court of Canada has articulated an automatic rule of exclusion for conscriptive evidence that impacts trial fairness, Regina v. Stillman (1997), 113 C.C.C. (3d) (S.C.C.). However, in recent years many lower court decisions such as Regina v. Richfield (2004), 178 C.C.C. (3d) (Ont. C.A.) have found that exclusion of evidence, as a general rule, may provide a disproportionate remedy. Justice Ducharme wrote that “Given the public acceptance of the use of breath samples to fight drinking and driving cases …. the exclusion of the evidence would have a negative impact on the reputation of the administration of justice.” This was because the breach was of a very minor nature (p. 29).

Crown Attorneys have however seized upon this language to argue that “technical” breaches ought not to result in exclusion of evidence. However, rather than resetting the course of Charter jurisprudence in impaired driving cases, this decision does little more than remind courts that the Collins factors must be examined when determining whether exclusion of evidence is an appropriate remedy. Further, Justice Ducharme found that as long as the investigating officer had a reasonable suspicion, the requirements of s. 254(2) were met and that there was no Charter breach, but if his analysis was wrong and there was a violation of s. 8 of the Charter, the evidence ought not to be excluded. The must discussed s. 24(2) analysis thus occurs within the context of a hypothetical breach on facts that would not and should not constitute a Charter violation.

Post Padavattan, Provincial trial courts are still excluding evidence when Charter violations are found. In impaired driving cases, the focus is typically on whether or not there has been a violation of the Charter rights of an accused. Although going forward closer attention may be paid to the factors under s. 24(2), the vast majority of Charter violations tend to revolve around serious fundamental issues that can never been characterized as merely “technical” and will continue to result in exclusion of conscriptive evidence.

WHEN TO TALK AND NOT TO TALK: Voluntariness in the Context of Drinking and Driving

(May, 2007)

In most Ontario jurisdictions, there is a standard form utilized with questions relating to how, what, when and how long details of alcohol consumption. A further question confirming the accused had been operating the motor vehicle when stopped by the police is in included in the form. At trial, a Crown prosecutor will make application to tender those utterances to either prove the necessary elements of the offence(s), or to rebut “evidence of the contrary”.

Mr. Duong was arrested with impaired operation of a motor vehicle as a result of being involved in an accident. Mr. Duong was not proficient in English. The technician had another officer act as translator prior to taking the first sample. After the first sample was taken, the officer immediately began asking the standard questions in English and without the secondary caution being re-administered. His Honour confirmed that “although there is no obligation to repeat the caution, the failure to do so may, in some circumstances, result in a finding that the answers given were not voluntary.” He then observed that to an accused“…this had the appearance of being a seamless process and objectively could be seen as part of the entire testing procedure.” After being told that the accused must provide two samples of his breath, it flows that an accused would feel compelled to answer such questions that are inevitably inculpatory.

This decision is both consistent and an extension of Regina v. Pomeroy , wherein the Honourable Mr. Justice Casey Hill, sitting as a summary conviction Judge, confirmed that although there is no obligation in law, the failure to do so “… may result in an adverse finding and exclusion of answers” . Even though Justice Hill refused to overturn the trial judge’s finding that the statements were voluntary, there is judicial recognition that an accused must understand the extent of his/her jeopardy during each stage of the investigative process.

Although it may seem polite to answer the officer’s questions, there is no substitute for adhering to the right to remain silent.

Impaired Driving Investigations – Right in Your Own Driveway

(October, 2006)

In a recent decision, the Ontario Court of Appeal visited the issue of police investigation powers at a private driveway. In R. v. Lotozky the respondent had been investigated and arrested by two police officers in his driveway. Their interest had been generated by a radio call that an impaired driver had been attempting to use the drive-through window of a local restaurant. The police matched the licence plate to an address and watched as the driver approached that address oddly. The driver parked in the driveway, at which time he was approached by the two police officers, investigated for impaired driving, and arrested. At trial Lotozky was acquitted of the charge due to a Charter infringement, ie, the police had breached his s.8 charter rights by investigating the driver in his driveway. This was upheld in Superior Court.

The Ontario Court of Appeal differed in their analysis of this fact scenario and overturned the acquittal. Merely asking questions of a driver and examining the interior of the vehicle is not a search. More importantly, such police activity on a driveway is within the doctrine of implied license. Such common law rights exist, writes Rosenberg J.A., because “A driveway is not a dwelling house; it is a place where people drive and park their vehicles. It is an open area that is visible to the public. The scope of the implied invitation must be analyzed in that context .”

Although policy reasons weigh heavily in this decision (to rule otherwise would create an incentive for impaired drivers to view their driveway as a safe haven), the key here is the ruling that police investigation which merely amounts to tapping on the window, and peering inside with a flashlight, does not amount to a search. This takes yet more from the limited privacy rights which protect occupants of motor vehicles. This part of the ruling is generally consistent with dicta from R. v. Mellenthin , where the Supreme Court of Canada found that the visual inspection of the interior of a motor vehicle at a motor vehicle check stop was permissible. In Mellinthin, however, the rationale in Mellenthin was officer safety. So Lotozky extends the bounds of permissible vehicle inspection from Mellinthin. Of course, if such conduct did amount to a search, then the police would be conducting a perimeter search of a residence, and require prior judicial authorization. This decision will be welcomed by prosecutors who wish to restrict the application of search and seizure doctrine in the traffic stop context.