R. v. R. B., [May 2016 – Canmore, AB] – Conditional discharge imposed after trial for dangerous driving under the Criminal Code of Canada.

Published On: Oct 17,2016

Our client was convicted of Dangerous Driving under section 249(1) of the Criminal Code of Canada (the “Code”) by a judge of the Provincial Court of Alberta, sitting in the Judicial District of Canmore, AB. The central issue for the Court was whether speed alone was sufficient to attract criminal responsibility under the Code as opposed to simply giving rise to an offence under the Traffic Safety Act alone. This is a fact specifc inquiry and all the circumstances of the case are taken into consideration in arriving a decision by a Court of Law.

The Court applied the following principles in arriving at it’s conclusion that the accused was guilty of impaired driving.

“… the issue should be determined by applying the analysis and statements of law expressed by the majority in R. v. Beatty, 2008 SCC 5 (CanLII), [2008] 1 SCR 49. At paragraphs 41-43, Justice Charron writing for the majority stated the requisite actus reus and mens rea of the offence of driving dangerous to the public. The actus reus, of dangerous driving is defined by the words of section 249(1)(a) of the Criminal Code:

Everyone commits an offence, who operates:

(a) a motor vehicle in a manner that is dangerous to the public, having regard to all the circumstances, including the nature, condition and the use of the place at which the motor vehicle is being operated and the amount of traffic that at the time is or might reasonably be expected to be at that place.

Further, the evidence viewed objectively must demonstrate that the manner of driving amounted to a marked departure from the standard of care that a reasonable person would observe in the accused’s situation.

The Court stated at paragraph 43(b):

“The trier of fact must also be satisfied beyond a reasonable doubt that the accused’s objectively dangerous conduct was accompanied by the required mens rea. In making the objective assessment, the trier of fact should be satisfied on the basis of all the evidence, including evidence about the accused’s actual state of mind, if any, that the conduct amounted to a marked departure from the standard of care that a reasonable person would observe in the accused’s circumstances. Moreover, if an explanation is offered by the accused, then in order to convict, the trier of face must be satisfied that a reasonable person in similar circumstances ought to have been aware of the risk and of the danger involved in the conduct manifested by the accused.”

Upon finding this accused person guilty of dangerous driving under section 249(1)(a) of the Code, an application was made for a conditional discharge under the principles of another decision of the Provincial Court of Alberta referred to as Regina v. Poitras, [2005] A.J. No. 1592 of the Honourable Judge Allen, PCJ. A conditional discharge application, if successfully made, would place our client on a number of conditions for a period of time as prescribed by the Judge. If those conditions would be completed as required, our client would avoid the entry of a criminal record. In the Poitras, supra, case, the Judge applied the Regina v. McFarlane test concerning the application of principles that govern the conditional discharge test. Similar to the result in Poitras, supra, our client was able to avoid the entry of the criminal record after persuading the Court from entering a conviction against our client that the Crown had vigorously pursued. The avoidance of the criminal record in this matter was of critical importance due to the fact that the accused person would encounter significant consequences, including removal/deportation from Canada, under section 36 of the Immigration and Refugee Protection Act (the “IPRA”), if criminal record was imposed.

R. v. K.A. {March, 2016}. The Park Wardens of Parks Canada laid numerous charges against our client under the Traffic Safety Act of Alberta alleging that he and a co-accused committed an number of offences under that legislation. The Park Wardens consulted with experienced members of the Royal Canadian Mounted Police. As a result, the TSA charges against our client was withdrawn; and two (2) criminal charges were laid, namely (a) Dangerous Driving and (b) Flight from a police officer. The basic allegations involved driving in a manner that was dangerous to the police and evading a peace officer when directed to stop. To support these allegations, the Crown Prosecutor’s officer presumably intended to rely on the oral evidence (viva voce) of the Park Wardens; and a seized video recording device from the c0-accused in this matter. The allegations, if true, would attract significant penalties including the prospect of a jail term. A complaint was filed under the Canadian Charter of Rights and Freedoms seeking to establish standing to seek the exclusion of the indexed video recordings. The matter was resolved with a charge under the TSA and all criminal charges against our client were withdrawn before the Provincial Court of Alberta, sitting in the Judicial District of Canmore.

R. v. B. P. {2016}. Our client faced two (2) charges before the Provincial Court of Alberta: (a) impaired driving and (b) refusing to provide a sample of his breath for the purposes of an analysis by a Qualified Breath Technician, a member of a Royal Canadian Mounted Police (the “RCMP”). The accused person in case was detained pursuant to a traffic stop under the Highway Traffic Act (“HTA”). A VICs video (in car video) revealed that the accused was detained by a single member of the RCMP, place in hand-cuffs and placed on an an approved screen device without being given his rights to counsel, pursuant to section 10(b of the Charter. There was a delay in transporting our client to the local police detached in the jurisdiction in question. Once at the police detachment, the accused requested to speak to his counsel of choice (our office) and made reasonable steps to seek our office. The evidence provided at trial clearly indicated that no contact was ever made. The RCMP member proceeded with the investigation and demanded that the accused person provided samples without reading a “Waiver” of this rights to counsel as required by the seminal cases of Regina v. Prosper (1994), 92 C.C.C. (3rd) 353 (S.C.C.)) and Regina v. LeClair and Ross (SCC). A number of challenges were applied under the Canadian Charter of Rights and Freedoms. The Provincial Court of Alberta granted the defence application to exclude all evidence of the putative refusal and our client was acquitted of all charges against him.

R. v. R.R. {2016}. The issue in this case was whether dangerous driving, pursuant to section 249 of the Criminal Code of Canada, based on speed alone. Our client was alleged to have been driving an motor vehicle at a speed in excess of two-hundred (200) kilometres an hour. The posted speed limit on the impugned highway was one-hundred and ten (110) kilometres. The evidence from the Royal Canadian Mounted Police suggested that the traffic was light and the road conditions were clear. Absent the recorded speed, there was no evidence of weaving, “near misses” or other erratic behaviour that would merit scrutiny. Extensive preparation was applied to this specific legal issue: whether speed alone would be sufficient to establish the legal elements of the Criminal Code Charge of dangerous driving. Arguably, the main case in Alberta that grapples with this issue is Regina v. Cowan, 2004 ABCA 397 wherein the Court states:

[11] The appeal must be allowed. Although it is true that, depending upon the circumstances, excessive speed can amount to a marked departure, it can also amount to mere negligence or carelessness. Without a specific finding as to the minimum speed, or range of speed, of the appellant’s vehicle, and in the face of conflicting evidence, the conclusion that the appellant’s conduct amounted to a marked departure is not susceptible to meaningful appellate review. The result of appellate review might reasonably differ if the speed found was 60 kph, 70 kph or 90 kph. Each could be said to be “well over 50 kph”. Yet each would not necessarily ground a finding of dangerous driving, in the circumstances of this case. Regina v. Cowan, 2004 ABCA 397

Other cases have interpreted this section to provide texture to it’s meaning. Plainly put, all of the circumstances of the case must be examined to determine whether or not Cowan (above) has application. A skillful examination was prepared but our office. The avoidance of a criminal conviction was critical to the outcome of this matter. Prior to trial and during a meeting with the Crown, and an resolution was achieve to avoid the entry of a criminal record and the Dangerous Driving conviction under the Criminal Code of Canada was avoided.

R. v. H.C.A {2016} The prosecution services in Canmore, Alberta proceeded with an investigation involving allegations of a putative refusal to provide samples and impaired driving under Sections 253(1)(a) and 254(5) under the Criminal Code of Canada. An extensive Charter notice was filed alleging various allegations under the Canadian Charter of the Rights and Freedoms. The strength of the defence case rested under Section 9 of the Charter, which prohibits the detention of the certain indexed criminal offences (i.e. first time impaired driving charges), wherein this detention culminates in a protected period. A poignant Notice was filed under the Constitutional Notice Regulation, positing “over night detention” of our client by the Royal Canadian Mounted Police in Canmore, AB. It could have be really inferred that a number of alternatives to detention existed. This was framed as serious violation of our client’s Section 9 of the Charter whilst relying on Regina v. McKelvey, 2008 ABQB 46 (and other similarly situated cases) and differentiating the seminal case of Regina v. Simms, 2009 ABCA 260. Upon careful review of the Charter notice, the assigned Crown prosecutor in this matter correctly withdrew all charges against our client on the day of trial before the Provincial Court of Alberta.

R. v. C. R. {2014} The Public Prosecution Service of Canada on behalf of the Federal Government, charged out client with possession for the purposes of trafficking large amounts of cocaine. The investigation commenced in British Colombia through the detection of the alleged substance(s) through a courier/parcel company, which brought these matters to the attention of the police. Rightfully, the police tracked the package to a location back to Calgary, Alberta at a home shared by a number of police. Using police techniques the delivery of the package was tracked resulting in our client being charged. At trial, in the Court of the Queen’s Bench of Alberta, the defence mounted involved admitting the ENTIRE crown case with the exception of the issue of “knowledge” whether it actual or constructive knowledge. A defence called evidence in support of it’s theory; and not-guilty findings were made against our client resulting in an acquittal of all charges before the Court.

R. v. S. M.J. {2014} The Calgary Regional Prosecution Service remitted histical charges of sexual assault against our client in connection with a sexual assault conviction under section 271 of the Criminal Code of Canada, which came to fruition as a result of a series of media releases pertaining to unrelated matters. The defence sought a defence of “consent” to sexual assault to the aforesaid charges before the Court of the Queen’s Bench of Alberta. The Crown called various witnesses in support the indexed offence; and the defence cross examined these witnesses in view of the defence theory. According to the judgment of the presiding Justice, the Court disbelieved the credibility of the complainant; and entered an acquittal of all charges before the Court.

R. v. C.J. {2013} The Calgary Crown Prosecution Service was proceeding by way of a summary procedure against our client relative to charges for Fraud, assault and mischief. The defence raised on the day of trial was specifically delineated in the Criminal Code of Canada under Section 786 wherein the information before the Court was a nullity as it was sworn outside the six (6) month limitation period. A live identity issue was also raised in this matter. The Calgary Prosecution Service rightly agreed to this error and decided to stay the charges against our client.

R. v. A.R {2012}. The Crown was proceeding on allegations of aggravated assault relative to a two (2) month infant who is alleged to have suffered from “shaken baby” syndrome. The election before the Court was “Judge with the intervention of the jury” and the matter was scheduled for a preliminary hearing. The consequences of a criminal conviction would have resulted in severe penal consequences (lengthy jail term) for our client. Our office was able to exposes of deficiencies in the Crown’s case resulting in a stay of proceedings, which saved our client significant legal fees.

R. v. L. R {2012}. The allegations against our client involved impaired driving and driving in excess of the legal limit (Over 80) pursuant to sections 253(1)(a) and 253(1)(b) of the Criminal Code of Canada. The matter proceed to trial wherein a number of Crown witnesses gave evidence relative to the defendant’s state of sobriety; and his blood alcohol readings, which exceeded twice the statutory limit. After a lengthy trial and detailed (written) submissions, a Trial Judge of the Provincial Court of Alberta found our client NOT guilty of all charges before the Court.

R. v. C. A, {2012}. The fraud allegations in this case involved an allegation of complicity in the fabrication of the Provincial Court document. The Crown Prosecutor took the position that the document was deliberately fabricated by our client for the purposes of evading quasi-criminal sanctions; and sought a lengthy jail term should their case be successful. The prospects of receiving a significant jail terms were likely. The matter was set down for trial. On the trial date, the Crown was unable to proven the “essential elements of fraud allegations” due to non-compliance with the Rules of Evidence under the Canada Evidence Act. On the trial date, all charges relative to these serious allegations were withdrawn against our client without any evidence tendered by our client.

R. v. E. M. {2012}. Our client faced allegations of insurance fraud. The Crown posited that our client had faked the theft his own motor vehicle. The impugned vehicle was found in one of the Atlantic Provinces destined to be transported to the African Continent. The Crown maintained its position in the strength of its case and maintained that our client gave conflicting evidence to the investigators. On the trial date, the Crown Prosecutors stayed the proceedings as they were unable to prove its case relative to the elements of the alleged offense and due to noncompliance with the rules of evidence. Once again, our client was saved the stress of testifying and all charges against our client were stayed thereby avoiding the entry of a criminal record.

R. v. F. T., {2012}. The allegations of impaired driving in this case involved the use of an ‘in car video’ wherein most of our clients movements and alleged motor in-coordination was captured by the video abstract. The video was to be tendered as evidence at trial. The Crown was expected to call its singular witness in support of the charge that it was seeking a conviction on, namely “Over 80.” The defence was was successful in achieving a not-guilty result by raising an obscure statutory non-compliance issue in the Crown witnesses’ oral evidence. This issue subtle issue was sufficient to succeed in this case.

R. v. F.H. {2012}. Our client was alleged to have pulled into an Alberta Check Stop Program wherein he was placed on an road-side breathalyzer: the Intoxilzyer 400D. A challenge was raised pursuant to the Constitutional Notice Regulation citing various violations of our client’s rights under the Canadian Charter of Rights and Freedoms. The specific allegation related to the premature use of the aforesaid road-side device given the objectively reasonable possibility of mouth alcohol as echoed by the Police Officer’s notes. The matter proceed to the trial date where the Crown withdrew all criminal charges against our client.

R. v. J. S. {2012} The charges in this case stemmed from Cochrane, Alberta wherein our client was alleged to have registered breath sample reading in excess of double the legal limit; and alleged to have been involved an a pattern of driving that, absent other possible factors, would have been demonstrative of impaired driving. Violations under the Charter of Rights were raised by the defence citing violations of our client’s rights to counsel (section 10(b); and the failure to secure the requisite reasonable and probable grounds to support a valid arrest (section 8) concomitantly flowing in an arbitrary detention (section 9). All charges against our client were withdrawn against our client.

R. v. S. J. {2012]. The police charged our client with assault causing bodily harm in connection with a bar fight. It was alleged that our client struck a man outside of a local bar in Calgary who fell back onto the pavement outside of the pub. Upon impact, the complainant hit the ground and split open his head. He was transported to the hospital wherein he received several stitches. At trial, the “defence of others” was raised by the accused. The accused testified, at trial, and statedhe was protecting his girlfriend, who was in his care. The defence was able to secure the attendance of other witnesses, that night, from the bar, to support our clients version of the events. The girl friend was shoved to the ground by the complainant who was still hovering over her. The accused attend to the scene to fended off any further attack from the complainant. The trial judge accepted the credibility of the accused and the testimony he provided; and rejected that of the complainant due to his sobriety. He found that there was a credible defence raised relative to the “defence of others,” pursuant to section 37 of the Criminal Code of Canada.

R. v. C. J, {2012}. The Crown alleged that our client had a prior-relevant criminal record and gave notice in advance that it sought “Greater Punishment” by filing the notice of the same prior to trial. The effect of the notice would bind a sentencing judge’s discretion to impose a penalty (jail term) below the mandatory minimum punishments prescribed in the Criminal Code of Canada. In this case, a jail term of 120 days would have been imposed upon a finding of guilt. Our office filed two (2) extensive Charter Applications delineating violations of our client’s right to make full answer and defence as there was missing disclosure; and manner in which our client was arrested – a violation in furtherance of section 8 of the Charter. Further issues were identified that raised a reasonable doubt relative to the delays occasioned by the police in procuring the samples of our client’s breath. Put differently, it was alleged that the samples of our clients breath (in excess of the legal limit) were not taken within the statutory averments, in the Criminal Code of Canada, requiring them to be take “as soon as practicable“. Our client was found not guilty.

R. v. A. N. {2012}. Our client had the misfortune of being seen leaving a sporting event in Calgary…. The defence marshaled a number of challenges under the Canadian Charter of Rights and Freedoms to our clients avail. The accused was stopped for speeding. The traffic stop was conducted while he was on his drive way. The Calgary Police Service membersadvised the accused was ‘detained for road-side.” The accused was placed in cuffs, walked back to the police vehicle, and placed in the rear of the same. Our firm alleged that our client was unlawfully coerced to provide a sample of this breath into the road-side screening device used by the CPS member. Our client initially refused to provide a sample of his breath in the road-side device at 2133hrs. The Police Officer recorded, in his notes that the accused stated “no I wont do it, I know I am wrong.” Approximately three (3) minutes later, the Police Officer coerced our client to provide a sample through (arguably) misrepresentations as to the applicable governing law relative to refusing to provide a sample and impaired driving and over 80. The defence had argued that the elements of the offence and defence arguably vary between these two (2) offenses. The police officer further indicated that when “convinced” (A) to provide a sample of road-side device I just informed (A) that the charge for refusal is the same as if he had blown a fail. (A) advised that if he provided a sample w/out failing then the most he would receive is tickets + 24hr suspension. The trial commenced with the Crown’s first witness. After a short Court recess, the Crown withdrew all the charges against our client.

R. v. S, J.{2012} A traffic stop was conducted by multiple members of the Calgary Police Service. One CPS member observed the smell of burnt marijuana. On that basis our client was arrest for possession of marijuana; and the police officer conducted a search of the vehicle wherein a large quantity of marijuana was found in ziplock bags. The defence filed a Charter notice citing the warrant-less search of the motor vehicle as a violation of our client’s section 8 Charter rights. Prior to the commencement of the proceedings, the defence identified a disclosure issue that remained unexplored previously. The defence sought the disciplinary records of the officers involved in the within investigation. A hearing was set for the production of those records. Shortly prior to the hearing, the Crown prosecution service stayed all of the drug charges against our client.

R. v. H. S. {2011}, Our client was pulled over in Cochrane, Alberta for burnt out head light. The “in car” video supported the RCMP members allegation. The officer detected a smell of alcohol on our client’s breath and the RCMP member proceeded with an impaired driving investigation. The aforesaid video indicated that that there was a fourteen (14) minute delay between when the officer detained our client for the impaired driving investigation; and read him the road-side demand. The defence argued that the intervening fourteen (14) minutes resulted would have provided our client with a “realistic opportunity” to consult with counsel and receive advice from the same, while at the road-side. At trial, the defence was successful in avoiding the entry of a criminal conviction against our client (with a bright future).

R. v. M. J. {2011} Charges of impaired driving and over 80 stemming from Airdrie, Alberta. The member of the royal Canadian Mounted Police delayed in: (a) reading the road-side breath demand to our client; and (b) administering the sample with the use of the road-side device (the Intoxilyzer 400d). The aforesaid defences were raised at trial. The Criminal charges against our client were dropped.

R. v. R. R. {2011}. Our client was charged with impaired driving and Over 80. The defence identified was lack of reasonable grounds to arrest our client for impaired driving. No road-side device was used to arrest our client and the signs of motor in-coordination prior to the actual arrest were insufficient to support an objectively reasonable basis for an arrest. The trial commenced and our client was found not guilty.

R. v. L, P. {2011}. Our client was arrested by police for resisting arrest. The allegation supporting the purported arrest stemmed from charges concerning an incident from a local bar in Calgary. Evidence relative to the aforesaid incident was unavailable to the police and the Crown was accordingly unable to prove an necessary element of the offence, namely that that was a valid basis of the arrest. As there was no evidence in support of a valid arrest, the charge of resisting arrest could not be proven by the Crown. All criminal charges were rightfully dropped by the Crown viz negotiation prior to trial.

R. v. B.B. {2011}. The accused, who did not speak English, was involved in a single motor vehicle accident wherein civilian witnesses were expected to by called by the Crown. Two police officers were called to the scene. They indentified the accused and proceeded to arrest on, arguably, minimal grounds of arrest and without the aid of the road-side screening device. Furthermore, there was a delay in reading the evidential breath demand relative to the accused. At the police district office, the police proceeding to procure samples of the accused’s breath without ensuring that the accused received any legal advice. The accused was unable to provide a sample of his breath on the Intoxiylzer 5000c. The aforesaid issues were raised in the context of a Charter challenge seeking the exclusion of the (minimal) signs of impairment and the refusal charge. On the day of trial, the defence was able to successfully avoid the entry of any criminal convictions for the accused.