Court of Appeal sets things right on traffic offences

Court of Appeal sets things right on traffic offences: Shanoff

By ALAN SHANOFF

Last Updated: March 27, 2010 8:59pm

TORONTO SUN

During the past 10 months the Ontario Court of Appeal has released three valuable decisions making our roads and highways safer.

The most recent, a decision earlier this month, upheld the validity of the 50 km/h or over stunt driving offence. While I dont understand how speeding 50 km/h over the limit constitutes stunt driving, it sure seems dangerous and the appeal court decision is welcome.

Jane Raham of Oakville doesnt come across as your typical stunt driver.

I dont know what moved the 62-year-old grandmother to attempt to pass a tractor trailer already speeding 10 km/h over the limit. But she did, and when passing the truck she accelerated to 131 km/h in an 80 zone, thereby placing her in jeopardy for a stunt driving charge.

She was initially convicted by a justice of the peace, but the conviction was set aside on appeal to the Ontario Court of Justice.

A stunt driving charge is no simple speeding charge. Aside from a minimum $2,000 fine — maximum $10,000 — all persons charged must surrender their licence, receive a seven-day licence suspension and also have their vehicles impounded for seven days at the owners expense.

Upon a first conviction the drivers licence may be suspended for up to two years. Theres also a theoretical, but unlikely — save in the most egregious cases — jail sentence of up to six months.

The potential for a jail sentence created much confusion in lower courts with several judges declaring the 50 km/h stunt driving offence unconstitutional for violating the Charter right of fundamental justice.

The court of appeal, however, set things right by pointing out there was no such violation.

Rahams acquittal was therefore set aside with the appeal court ordering a new trial where she can argue she took all reasonable steps necessary to avoid speeding 50 km/h over the limit.

Last November, the appeal court also solidified the July 2, 2008, driving over 80 amendments.

Prior to July 2, 2008, people charged with driving over 80 could argue their breath tests were invalid because the alcohol they had consumed couldnt possibly have resulted in the breathalyzer readings obtained by police.

Two-drink defence

This defence, known as the Carter or two-drink defence, had been successfully used for years but was tightened up — some would argue eviscerated — in legislative amendments effective July 2, 2008. Unfortunately, the legislation didnt state whether the amendments applied to people charged before July 2, whose trials took place after July 2.

With about 3,000 people in this situation, resolution of this point of law was no small issue. After numerous lower courts came down on both sides of the issue the appeal court, in the Samuel Dineley case, wisely decided the amendments applied to all trials taking place after July 2, regardless of when the charge was laid.

While the constitutional validity of the amendments wasnt up for grabs in the case, comments made by the appeal court lead me to believe the amendments will later be upheld as being constitutional.

The last case in this trilogy is the Constance Banks decision of last June where the Ontario Court of Appeal restored a conviction in an impaired driving "care or control" case.

After consuming four beers in a visit with one of her daughters, Banks drove into a ditch off Airport Rd. She took her keys out of the ignition and was standing outside her car when a police officer arrived.

The question for the court was whether Banks was in "care or control" of her vehicle while standing outside the vehicle. If so, her breath test results — well over 80 — would be admissible as having been administered within the required two-hour window. In deciding it was open for the trial judge to conclude Banks was in care or control of her vehicle even while outside it, the appeal court has sent a strong message warning drivers not to drink and drive.

Its a lesson we should all heed.

Actually the second one scares me because while the defendant deserves the conviction and all the consequences that come with it, it's a slippery slope. What if I'm drinking in my house? The car keys are easily accessible, and I can see my car through the window. Or, what if I'm at a party and I just go to the car to get the sleeping bag from the back seat or the trunk (those days are behind me but something like that could have happened in my past)? Or when people are out camping? I mean you have a bunch of drunken people, with their vehicles parked right there, with keys in their pockets/purses.

I'd dare you to find one of those instances...strangely enough from time to time police use common sense...

Insofar as going to get something from your vehicle, well there aren't too many cars available these days without keyless entry...

But you do raise interesting points.

Jeez the law is complicated!

When I was a student, I couldn't afford one.. After I started riding, I didn't wanna get one.. I just drive old junkers. All of my car purchases, maintenence and repairs in 13 years of driving wouldn't amount to the price of a single new car.

As for an officer applying common sense.. Sometimes they just don't want to.. Back in 05, I was coming back from my insurance broker's with a brand new temp slip. Well they messed up on the y/m/d order so it looked like the temp slip expired 4 years ago and as my luck would have it, I got pulled over for a doc check. The constable sure as hell didn't apply common sense in that incident. Just wrote me a ticket for not having my insurance papers and common sense would dictate that I wouldn't be able to get the car plated with an insurance policy that expired 4 years ago. Another $500 expense.. Fortunately, the insurance brokerage covered the paralegal so it didn't go out of my pocket.

Back to the original topic.. How are they gonna determine care and control once biometrics get involved in car design? I think there are already some cars out there where you can start the engine by using a fingerprint scanner.

Sorry to resurrect an old thread, but it touches on an issue a friend's 19 year old daughter is experiencing. She is a decent young girl who, like most 19 year olds, is in her partying stage. She's a good student, studying to be a teacher, and is an active and frequent volunteer on a level that you just don't see many 19 year olds participating. She's really a special young lady. Well, she was arrested in Durham Region about a week ago for being in care and control of a vehicle while intoxicated.

She and her friend were returning from a club. Her friend was the DD, and became very ill (not from drinking) and pulled over somewhere to throw up. She threw up all over the drivers' seat. Other friends were in cars following and they all pooled into this one abandoned parking lot. My friend's daughter was either in or near the drivers' seat cleaning up the puke (it was her car), and police entered the parking lot to see what was going on. The thing is, neither she nor her sick friend had the keys. She was cleaning the drivers' area but another friend had the keys in her pocket, taken from the sick friend for safe keeping when the sick friend went to a part of the parking lot to be sick (in case she lost the keys while crouching over).

There was confirmation that the sick girl driving my friend's daughter's car was not intoxicated. However, they charged my friend's daughter and she spent the night in jail. Her friends tried to tell the attending officers that they can confirm she was not driving, but I guess that being in drivers' seat is enough to be charged?

I thought the keys had to be in one's possession because without them she lacked the ability to perform a function or where the car may have been unintentionally set in motion? I'm sure glad I was never busted for this as there were many times I was out camping on the May 24 weekend and, drunk and freezing in my tent, went into my car, reclined the seat, and slept - in the passenger seat though because there was more room for the legs due to no steering wheel. I remember one particularly cold May 24 weekend in '95 at Sherkston in my friend's car, parked at our campsite, we both woke up near hypothermic and we rushed to the car. She had even started the car to get the heat going. She would've been in care and control, unless it's a different scenario because it was private property on a campground?

I thought the keys had to be in one's possession because without them she lacked the ability to perform a function or where the car may have been unintentionally set in motion?

Care and control = Keys in hand. I would say there is an error in judgement on this one.

Marquisse wrote:

She would've been in care and control, unless it's a different scenario because it was private property on a campground?

Private property is not exempt from the criminal code.

I guess that's why her lawyer told her that her case looks good. All of her friends will be testifying on her behalf, and it will be proven that she did not have the keys in her possession. I wonder if it will make it past any preliminary knowing she did not have the keys.

Poor kid. Her chances of getting into the profession she wanted are seriously in jeopardy.

Marquisse wrote:

. She was cleaning the drivers' area but another friend had the keys in her pocket, taken from the sick friend for safe keeping when the sick friend went to a part of the parking lot to be sick (in case she lost the keys while crouching over).

in all the years I've been driving and working and seeing stuff like that.....that scenario is the most unsual I have ever heard of

If this is exactly how it happened it's another example of an officer with no discretion giving all police a bad image. And this is why I want to be a defence lawyer!

This story is what was told to me by her mother. There are a couple of possibilities, such as the daughter not being entirely forthcoming. However, they have already seen the lawyer and the facts have been laid out. My relationship with this young lady's mother is extremely candid. I don't believe the facts were misrepresented to me by her.

We hear of these type of oddities all of the time. Discretion leaves much open to interpretation, including the sketchy fulfillment of all elements of the section being cited. The charge is laid and the responsibility of proving the elements in accordance with our justice system is left to the Crown. In the meantime, the accused is left to pay heavy court fees, and in this young lady's case, $8k to $10k in legal fees alone, to say nothing about impound fees.

I am particularly baffled as to why she was arrested and not permitted to make her phonecall to her parents until later the next morning (I do not know what time she was finally allowed to make her call, but she was arrested at about 3:30am).

She goes back to court early next month, and although her lawyer is optimistic, they have been warned that this is a serious charge. I would hate to see her teaching goals altered because of this.

Personal phone call?

There's no right to a personal phone call...never heard of that before...

And despite what some people think, police know better than to believe people, I've been lied to thousands of times in my career...

I can think of 25 times I've had a flat out denial by somebody backed up by their alibi...then I show them the videotape of them in action...there's is little in the profession that matches the amusement I feel when I see that look on their faces.

I'm sure we can all find examples when we don't agree with the way police do things, or their use of discretion, but we shouldn't expect to. That would imply all things are face value as represented in the news...bottom line, the courts, impartial as they may be, get the final say.

I'm curious as to the outcome in court moreso than public opinion or news editorial musings.

Just sayin'

Sorry if I've been absent these past few weeks, last weeks 'near suicide by cop' still has me a little rattled...

Hey, you might want to check out Section 10 of the charter concerning phone calls, outlining the right to seek counsel without delay, and for many, it includes calling loved ones to call a lawyer, as we may not know of one ourselves. Not many of us have criminal lawyers on speeddial.

If it is not provided, even if the detainee says they don't need one, it opens up the Crown case to a Section 10 argument later on.

The person is an adult and there will be no personal phone call to home, friend etc... except when they are ready to be released from custody

The person can name a lawyer and I will call the lawyer, OR duty counsel will be called.

If they wanted a lawyer the parents used, I would personally call the parent and ask what lawyer they use, hang up and then immediately call the lawyer myself.

********

If someone says they do not want a lawyer, there is no call made. I am aware of cases being tossed should a lawyer be called when someone has said "no" as this is a unreasonable delay in the processing of the accused.

Agreed, the right extends to speaking with counsel of choice or duty counsel. Police will make all efforts to contact a specific lawyer if requested, but the right doesn't extend to making a personal phone call for any reason.

This is different than you see on American TV shows. Perhaps that's where the idea comes from.

BTW, American TV shows have it wrong with the phone call thing. You do NOT have the right to make "one phone call" in the US when you're under arrest. They try to play up the drama with this legendary "one phone call," but it's completely incorrect. (Scenarios like someone trying to decide who they're going to call with this supposed "one phone call," etc.) In the US, when arrested, you have the right to speak to an attorney, much like in Canada.

Hey guys, sorry this si going to be long, but I was interested in this and brought it up in discussion in class on Wednesday afternoon. We ended up having a 1/2 hour discussion on it as it conveniently coincided with our lecture on building cases building arguments - from technicality to Charter motions. Although not likely to happen unless the violation was gross in nature, unreasonable conduct on the part of the police can bring forth a charter motion, and it can do so in a number of ways.

We are coming from two difference perspectives. Firstly, you are right, there is no entitlement to one phone call. There is no limit. The Charter maintains that we have the right to seek and instruct counsel without delay. This right is activated at detainment. Note the language used, specifically, the terms "seek and instruct". This could include what I had incorrectly referred to as "personal phone call", where that personal phone call is used to seek and instruct counsel. So while there is no specific "one personal phone call" right, the explanations here are not accurate. Both here are only telling half of the story.

The police are required to respond and conduct themselves reasonably. If it is reasonable to refuse the detained individual access due to safety issues, then the officer, as hwybear illustrated, could make the call, but you must be careful that you taking control of the individual's use of the phone does not prevent the prisoner from reaching counsel. Calling an leaving a message if most often quite adequate, but the individual may continue to invoke his/her right to seek counsel and multiple calls may be necessary in order to reach counsel "without delay".

If the individual does not know a lawyer, having the officer refer Legal Aid is not sufficient, and getting the prisoner in contact with a lawyer is not sufficient in terms of the individual having the opportunity to seek counsel. Officers must clarify if the individual obtained legal advice when there is any doubt, especially when attempting to elicit evidence, or else a Charter motion can be raised.

It is not necessary for the individual to have to name a lawyer. Their right is to seek and instruct, not name and call. If the person wanted to call their wife to call the lawyer, the officer could call the wife to get the number for the lawyer. If the individual wanted the phone book to seek counsel, they should, and that's the operative word, be provided with the means to that phone book, privacy, and the ability to call. The alternative is to make the individual wait until they see duty counsel, which is done and is not necessarily inappropriate, unless you look back at the Charter and it's use of the words "without delay". Notwithstanding all of this, the detained individuals conduct can and often may be responsible for the delay in his/her exercising of S10(b), in which case they won't likely win any motion (or be taken seriously).

Our prof referred to R v. Pavel regarding the issue of the right to seek and instruct counsel.

10. Everyone has the right on arrest or detention

...

(b) to retain and instruct counsel without delay and to be informed of that right

I don't see anywhere in that section of the Charter that someone has the right to a telephone call, personal or otherwise.

This right has 3 parts, all of which are essential to it.

First; to retain and instruct counsel.

Second; without delay.

Third; to be informed of that right.

If the most expeditious way (without delay) to retain and instruct counsel is through a telephone call to someone's parent or friend, then any other method or means will create delay.

The intent of that part of the right is to minimize the time an accused remains under detention without legal advice and representation.

The first part has 2 distinct components; a) retain and b) instruct counsel. Further, it is trite law that this right includes the right to choose counsel.

Strictly speaking, getting connected to a duty counsel does not guarantee that he or she will be retained and/or instructed. In fact, that is seldom the case.

Through a conversation with a friend or relative, the accused may very well authorize someone better equipped to choose, retain and instruct counsel for the defence of the accused, which would be done much more expeditiously.

Think, for instance, that you may need to talk to more than one counsel to represent the accused at the earliest possible bail hearing. That could be done much more expeditiously (without delay) by someone, who is not detained, other the accused. Further, a person of the accused's trust and authorized by the accused may be able to properly choose, retain and instruct counsel

Why would the function of retaining and instructing counsel need to be done with a police officer as the middle man? How would you like to have a police officer present every time to talk to your lawyer?

Unless the police can prove that by placing the call themselves they would provide the accused the most expeditious way to choose, retain and instruct counsel, the denial to call anyone chosen by the accused for that purpose, in my opinion, would be a violation of s. 10 (b) of the Charter, which is commonly done by the Police.

Cheers.

You're missing the point of the way that police allow people to exercise their right to retain and instruct counsel. It's not about providing them with the best way to access counsel, it's about providing them with a sufficient way to do so without negatively affecting their investigation.

They don't just give people a phone and tell them to call whoever they want to get all the advice they need while not being supervised because there is a good chance that may interfere with the ongoing investigation. People who are under arrest obviously can not be allowed to contact someone on the outside and have them dispose of evidence or otherwise impede an investigation.

Also, the right is to "retain and instruct counsel without delay". That doesn't mean that they have to get in touch with the counsel they will ultimately choose to represent them in court right away. It means that they have the right to contact a lawyer for advice and have the option of retaining and instructing them. If they speak to duty counsel and then choose to find a different lawyer after they are released, that's their business. It's not an infringement of their charter rights if they didn't get in touch with the other lawyer at first.