Canadian Bar Association Submissions On Bill C75 & Jordan Delay
UNREASONABLE VERDICT – CONSTRUCTIVE POSSESSION
R v Bjornson, 2018 ABCA 282, per Wakeling, Crighton, Khullar, JJA – T. Judge: Fraser, J:
Appeal from conviction for possession of drugs for the purpose of trafficking. Appellant was arrested after a vehicle stop when police discovered that the vehicle he was driving was unregistered and had a stolen licence plate. Police found drugs and paraphernalia in a sunglass case inside the cupholder following a vehicle search. Issues on appeal surrounding the finding that the accused was in constructive possession of the drugs.
Held: Appeal allowed; acquittal.
Crown’s case in establishing possession of the drugs was circumstantial, thus a judge must be satisfied that “the inference of guilt is the only reasonable inference that the circumstantial evidence permits”: Villaroman, 2016 SCC 33. Here, “the gaps in the evidence, together with the evidence that someone other than Mr. Bjornson owned the vehicle, make available innocent inferences about Mr. Bjornson’s knowledge of the drugs that are reasonable in the sense that they arise from the application of human experience and common sense to the evidence as a whole.” Trial judge’s finding of possession was not supportable.
J. Craig – Defence Counsel
CTLA Intervenes At Supreme Court Of Canada In Defence Of Appeal Fairness
In an intervener brief filed recently in the SCC appeal case of Barton v The Queen the CTLA argues that criminal appeals must be subject to s. 7 of the Charter of Rights, and accordingly conducted in accordance with the principles of fundamental justice. Criminal appeal courts must follow procedures consistent with the prohibitions against double jeopardy and multiple prosecutors. Special thanks to our member Nate Whitling for doing this hard and important work. Nate’s entire brief can be found at Barton Intervener Brief 2018.
New Website
The CTLA is pleased to present its new website. It is our hope that this website will better serve both our members and the general public by providing more timely news concerning criminal justice issues and facilitating easier access to our membership.
Kelly Dawson
Past President CTLA
New Provincial Suspension Rules For Impaired Driving
On April 9, 2018 the new Alberta Administrative License Suspension law came into effect. This affects people who the police suspect have committed an impaired driving-related offence (such as impaired driving, driving with a blood alcohol content over 0.08, or refusing to provide a sample to a police officer).
What prompted this change to the law?
Before the April 2018 changes, drivers had their license suspended indefinitely upon being charged with impaired driving. This “administrative license suspension” under the Alberta Traffic Safety Act lasted until their criminal charge was dealt with. This meant that people who exercised their right to have a trial had to go without their license for entire period before their trial date (which could be many months into the future).
In May 2017 the Alberta Court of Appeal found that this indefinite license suspension was unconstitutional. It subjected people to punitive sanctions upon the “mere charging of an offence, without regard to the presumption of innocence. The Court of Appeal declared Alberta’s law unconstitutional but gave the government one year to fix the legislation before the law would become non-operational. These new laws are the Alberta Government’s response the to the Court of Appeal’s decision.
How does the new legislation change the administrative suspension regime?
Instead of an indefinite administrative license suspension, a person who is charged after April 9, 2018 is now subject to a two-phase suspension regime:
1. An absolute 90-day driving prohibition period, during which the person cannot drive under any circumstances; and
2. An additional 1-year driving suspension from the date of the charge. However, during this second stage, a person may be able to drive on a restricted license if they participate in the Ignition
Interlock program for the 1-year period. If the person does not participate in the Administrative Interlock program, they are suspended from driving for a further 12 months after the initial 90-day period, for a total suspension of 15 months.
Technically speaking, the “trigger” for the administrative license suspension has also changed – instead of the suspension being the result of a charge under the Criminal Code, the trigger is now the police officer’s belief that an individual has engaged in certain impaired driving behaviours. In practise, however, the “reasonable grounds” standard is the same threshold for a police officer to charge someone with a criminal offence. So there is not much practical difference in the pre-requisite for the administrative license suspension.
What about people who were charged with an impaired driving-related offence before April 9th?
If a person was charged before the changes and has already served 90 days of an administrative suspension under the old rules, they would be immediately eligible to apply for the Ignition Interlock program.
If a person was charged before the changes and has served less than 90 days on the suspension, they will be eligible to apply after they have served 90 days of the suspension.
Admission into the Interlock program is not automatic and a person must apply to the Transportation Safety Board in order to see if they are eligible.
Are there any exemptions from the administrative suspension?
It is not possible for a person to get an exemption from the Administrative Suspension law.
While not an exemption, an individual still has a right to appeal the administrative license suspension under section 39 of the Traffic Safety Act. There are strict timelines for this kind of appeal – it must be filed within 30 days. The grounds for an appeal are legally very strict, and employment or financial hardship is not a reason that the Board can take into consideration on an appeal.
What happens with the administrative suspension if a person pleads guilty or is convicted of an impaired-driving related offence after a trial?
This new provincial law does not change the federal Criminal Code provisions that deal with driving suspensions after a person has been found guilty. If a person is convicted of an impaired driving offence, they are still subject to a mandatory driving prohibition under the Criminal Code. The Criminal Code states that the minimum driving prohibition is for one year from the date of conviction (and could be longer for repeat offenders or if the judge decides a longer prohibition is appropriate in the circumstances of the case).
The new changes to Alberta’s laws do not affect this criminal driving suspension. Nor does it change the Mandatory Ignition Interlock program that the Alberta government requires individuals to participate in to get their licence back after a Criminal Code conviction.
Individuals who were on Administrative Ignition Interlock as part of the 1-year Administrative License Suspension, and are later found guilty will, at minimum, have to serve another three-month absolute driving prohibition from the date of their conviction (this period could be longer for more serious cases). They could choose to have the interlock device removed from their vehicle and re-installed later, or continue to pay the rental fees but be unable to drive. Either way, a person would have to apply and be accepted into the Mandatory Ignition Interlock program after the three-month period, and complete all of the conditions of that program before regaining any driving privileges.
What about people who are found not guilty after a trial?
The administrative suspension is no longer tied to criminal charges, so it does not end with an acquittal. This means that if a person is found not guilty of an impaired driving offence at a trial, they will still have to serve the time remaining on their 15-month administrative suspension. It is very likely that there will be additional court challenges to this aspect of the new law.
Where can I get more information?
The Alberta Government provides information on the Interlock Program.
The laws surrounding impaired driving, and the related consequences to your licence, are technical, complex, and continually evolving. The information on this site is not intended to be legal advice, and is not a substitute for speaking with a legal professional. If you are facing an impaired driving charge or an administrative suspension, contact a criminal lawyer.
Tania Shapka, Associate DDSG Criminal Law
R v Rajpu, 2018 Calgary Queen’s Bench – Challenge Of Jurors Allowed Due To Risk Of Bias Towards Accused Of East Indian Descent
Accused charged with sexual assault. Defence application under s. 638(1)(b) to challenge potential jurors for cause on the basis of racial prejudice, as the accused was of East Indian descent.
Held: Leave granted to challenge potential jurors for cause.
In considering an application for challenge on the basis of racial prejudice, the first ‘attitudinal’ step assesses whether a widespread prejudice exists in the community. Spence, 2005 SCC 71 recognized prejudice against individuals of East Indian decent, and held that “racial prejudice against visible minorities is so notorious and indisputable that its existence will be admitted without any need for evidence”. On the second, behavioural stage, there was a risk that jurors might be unable to set aside their bias to give an impartial decision: “[d]espite the presumption of impartiality, in cases of racial bias, that impartiality has been refuted by previous case law from the Supreme Court of Canada.” Applicant established a realistic potential that jurors might not be impartial.
T. Roulston – Defence Counsel
R v Schroeder, 2018 Edmonton Provincial Court – Impaired Acquittal As Presumption Of Accuracy Not Available
Impaired driving trial for charges under ss. 253(1)(a) and (b) CC. Readings of 110mg% and 100mg% were noted on the Certificate of Analysis, but investigating officer testified that the technician advised, and he recorded in his notes, readings of 120mg% and 100mg%.
Held: Acquittal.
“The evidence in the present case shows that the instrument may not have been operated properly, in the sense that the readings were not properly recorded. This is obviously a vital part of the operation of the unit, and of the overall testing process.” Crown thus lost the benefit of the presumptions under s. 258 CC: per St-Onge Lamoureux, 2012 SCC 57, “once an accused has shown that the breath readings may be inaccurate, it is not necessary for him to also show that he was in fact under the legal limit. It falls on the Crown to adduce the necessary evidence ‘to counter the attempt to rebut the presumption of accuracy.’” Technician not called, thus Crown did not establish beyond a reasonable doubt that the blood alcohol content exceeded the limit.
T. Dunlap – Defence Counsel