Privacy and your Charter Rights in the digital age

This month has been an interesting month insofar as the development of the law pertaining to privacy and Charter rights in the digital age.
The Decisions:
The first development came with the release of R. v. Spencer from the Supreme Court of Canada. This case concerned the application of the Person Information Protection and Electronic Documents Act to demands made by police to Internet Service Providers for subscriber information. Without a warrant, police attempted to obtain personal information about the subscriber to a particular IP address that would link him to accessing, possessing, and making child pornography available to others. At issue was whether the police could rely on powers set out in the PIPEDA as broad authorization to demand, without a warrant, this information from the ISP.

The Court unanimously concluded that
internet subscribers have a reasonable expectation of privacy in their internet activity. The subject matter of the search was not only the name and address of the subscriber, but information about their internet activity. It is generally understood that internet browsing is done under the veil of anonymity. As such, internet activity engages what the Court described as significant privacy concerns. The PIPEDA does not grant search powers to the police, and the purpose of the legislation is to protect personal information, not to disclose it.

That said, the evidence was ultimately admitted as the police were acting in good faith and in their belief that they were following the law.

Following this, the BC Court of Appeal
released its reasons in R. v. Mann. This case dealt with the power of police to search a cell phone for its contents, incidental to a lawful arrest. At common law, police have a power to search incidental to arrest. They may search the offender and surrounding area for evidence related to the offence. During the search of Mr. Mann, police seized a BlackBerry cell phone. They then downloaded the entire contents of the phone without a warrant.

The Court of Appeal found that there is a significant privacy interest in the contents of a cellular phone.
Relying on the Supreme Court of Canada’s decision in R. v. Vu, the Court found that people have a heightened privacy interest in the contents of their computers and cell phones. Essentially, in the digital age, all of our personal lives are contained on our devices. At paragraph 120, the Court wrote:

It now seems obvious that the individual’s privacy interest in the contents of a device such as a BlackBerry outweighs the state’s interest in law enforcement, and a warrantless search of those contents is unreasonable according to the test set out in Collins.

However, as with Spencer, the evidence was still admitted. The Court concluded that the police were acting in good faith and that at the time of the investigation, the law on cell phone searches was not as developed and settled as it is now.

But if the evidence is not excluded, what does this mean?
Many people get lost in the fact that the evidence has. nonetheless, been excluded. The fundamental reasons behind the inclusion of the unlawfully obtained evidence in these cases has to do with the lack of clarity in the law at the time of the searches.

That logic will not apply in the future, now that the law has been clearly identified by the higher courts. This same result was achieved in R. v. Evans, a 1996 SCC decision. That case pertained to a “sniffer search” undertaken by using the common-law power to knock and approach a door. The Court concluded this was an unlawful search but admitted the evidence because the police were acting in good faith. It is now generally accepted that sniffer searches of this nature, conducted without a warrant, are unconstitutional and evidence is not so freely or readily admitted as a result of these searches.

Understanding breath testing equipment

As reported on the Acumen Law Blog recently, the breathalyzer doesn’t always work correctly. And key to defending any Immediate Roadside Prohibition case is understanding how these devices work.

But sometimes, errors occur that cannot be explained. As you can see in the above video, the Alco-Sensor IV DWF device simply would not accept my breath sample. I have blown into this and other breathalyzer and approved screening devices probably thousands of times. I have experimented with blowing hard, blowing soft, blowing for a short time, and blowing for a long time. I know how to provide a suitable sample. And in the video above, I was doing exactly what the device required to meet the sampling parameters. Yet for some reason, the device simply did not detect my airflow.

This was an approved screening device that had been checked for calibration using a wet bath standard and had received recent annual servicing. On paper, there was no reason why the device should not have accepted my breath sample. Nonetheless, despite my best and most legitimate attempts to blow, the machine did not work.

I deal with many Immediate Roadside Prohibition, Administrative Driving Prohibition, and criminal refusal to blow charges every year. Every once in a while I have a client who tells me they were making an earnest and honest attempt to provide a sample, but the police disclosure reveals information that would indicate no air was going into the device. Having experienced this issue myself, I can relate to my clients’ bafflement at their circumstances and I understand my clients’ innocence.

One of the most important factors in defending impaired driving, DUI, and/or Immediate Roadside Prohibition (IRP) cases is understanding the equipment used by the police. Until you have had hands-on experience with the devices and instruments, you cannot fully understand the intricacies of how these machines work. I am fortunate to have a small collection of breath testing equipment, including a BAC Datamaster C approved instrument, an Alco Meter SL-2 approved screening device, a Draeger AlcoTest 7410 approved screening device, and a Breathalyzer 900, which was formerly an approved instrument. In our office, we have an Alco-Sensor FST, Alco-Sensor IV, Intoxylizer 400, and an Intoxlyzer 5000. I have personally operated and used each of these pieces of equipment, so I know and understand how they work and why they fail.

But sometimes, (like in the above video) even with plenty of experience using a device, it simply does not work. And the reason why cannot be explained.

Driving While Prohibited

I deal with a lot of cases involving charges of driving while prohibited. I also talk to a number of individuals who are serving driving prohibitions and are curious about the consequences of driving while they are prohibited. It is a Motor Vehicle Act offence to drive while prohibited, and a Criminal Code offence to drive while disqualified. So do not do it. You will most likely get caught.

How Do People Get Caught?
A lot of people seem to believe that if they do not do anything wrong with their driving, they will be able to drive while prohibited undetected. Police officers scan license plates while they are driving. Technology now enables officers to automatically scan thousands of license plates an hour. Anytime a plate comes back as a “hit” the police will pull the vehicle over to investigate. This technology is known as Automated License Plate Recognition. According to statistics reported on the DriveSmartBC blog, 1944 people were charged for driving without a license and 313 people charged with driving while prohibited in 2013 alone. The BC RCMP statistics show that in a period of fewer than two years, 3.6 Million license plates were scanned using ALPR technology.

How Do They Prove The Case?
Driving while prohibited cases are unique. The Crown must prove only that the person charged was driving, was prohibited, and knew he or she was prohibited. Evidentiary shortcuts in the Motor Vehicle Act allow the Crown to introduce documentary evidence, such as the driving record, letters from ICBC/OSMV, and Certificates from the Superintendent of Motor Vehicles or President of ICBC as proof of these facts. The documentary evidence creates a rebuttable presumption that the accused knew he or she was prohibited. Which makes defending these cases more difficult, although certainly not impossible.

There are defences to driving while prohibited charges. Mens rea must be proven. But knowing these defences involves a lot of research and particular knowledge. There are some defences that no longer work for driving while prohibited charges.

Many people, on learning that a driving while prohibited charge is a Motor Vehicle Act offence, do not think the charges are serious. This is a mistake.

The consequences for driving while prohibited are significant. On a first conviction, the mandatory minimum penalty is a $500 fine and a one-year driving prohibition, pursuant to Section 99 of the Motor Vehicle Act. On a subsequent conviction, there is a mandatory minimum fine of $500 and a mandatory jail sentence of no less than 14 days. These cases must therefore be taken seriously.

National Day of Impaired Driving Enforcement

Tomorrow is the National Day of Impaired Driving Enforcement.

According to an article in the Morning Star, a Vernon newspaper, police will be out in full force on Saturday, March 22, 2014 conducting roadblocks and checking for impaired drivers. With nice weather finally here for springtime in Vancouver, I do not doubt that many people will encounter a roadblock on their travels this weekend.

There are a variety of consequences that you can receive when police conduct impaired driving investigations. They are often difficult to understand and can result in further punishment that you are not told about at the roadside. I deal with all manner of impaired driving cases, including:

  • 24-Hour prohibitions for drugs;
  • 24-Hour prohibitions for alcohol;
  • 3-day, 7-day, and 30-day Immediate Roadside Prohibitions;
  • 90-day Immediate Roadside Prohibitions for Fail;
  • 90-day Immediate Roadside Prohibitions for Refusal to Blow;
  • 90-day Administrative Driving Prohibitions;
  • Impaired driving charges;
  • Driving over 80 mg charges;
  • Refusal to blow charges;
  • Impaired driving causing bodily harm; and
  • Impaired driving causing death.

If you are issued any of the above charges or sanctions, there are limitation periods and it is imperative that you act fast. Contact me immediately and I will be able to explain your rights and the procedure to you, free of charge. Our telephone number is 24-hours: 604-685-8889.

Study: teens more likely to drive drunk if they have been a passenger with a drunk driver

In a very interesting study published in the Journal of Pediatrics, researches found a correlation between being a passenger with a drunk driver and drunk driving behaviour.

Approximately 2500 teens were surveyed each year, over a three year period. Each year, tenth grade students were asked how many times they had ridden with a driver who had been drinking or taking drugs in the past year. They were then asked how long they had a driver’s license, questions pertaining to the use of drugs and alcohol, and about whether their parents were aware of their choices. In the final year of the study, students were asked how many times in the past 30 days they had driven after using drugs or alcohol.

The study found that
students who had ridden with someone who had been drinking or using drugs were eleven times more likely to decide to drink and drive themselves. In some respects, this makes sense. Drinking and driving education for teenagers often focusses on the devastating social consequences of that behaviour: the likelihood of an accident, death, or injury. Individuals who do not experience these consequences are probably more likely to consider them more remote, and to engage in risk-taking behaviour themselves.

Interestingly, students who got their driver’s licenses earlier were also nearly two times more likely to drive drunk than those who got their licenses later.
At least 30% of the students surveyed had either ridden with a drunk driver or had driven drunk themselves.

Studies like this are important. They help to understand why drunk driving incidents occur, so that prevention efforts can be aimed at methods that are more likely to produce success. In British Columbia, the Immediate Roadside Prohibition regime is said to have saved lives by preventing drinking and driving.
However, studies have also shown that younger drivers are more likely to drink and drive, meaning that an aging population in British Columbia would cut down deaths. And despite the fact that IRPs are said to have saved lives, impaired driving is still on the rise in British Columbia, according to Stats Canada. But that’s another blog post for another day.

Kamloops This Week: Drinking, Driving Decision Imperils Law

Drinking, driving decision imperils law By: Cam Fortems in Courts, Law & Order, News February 14, 2014 0 805 Views

A second B.C. Supreme Court ruling against the Superintendent of Motor Vehicles has placed the province’s four-year-old drinking driving law in jeopardy, lawyers said on Friday (Feb. 14).

Sam McLeod, B.C.’s Superintendent of Motor Vehicles, responded “that our laws remain in place and we’ll continue to be tough on those who drink and drive.”

he B.C. Ministry of Justice is reviewing the decision to determine next steps.

B.C. Supreme Court Justice Jane Dardi sent back a roadside prohibition — given to a driver who blew a ‘warn’ on a roadside screening device — to the superintendent’s office for a rehearing, said Vancouver lawyer Kyla Lee, who successfully argued the case. Lee and other lawyers contacted on Friday said the decision imperils the way police deal with drinking drivers and jeopardizes thousands of driver suspensions already handed out.

Lee said in a telephone interview the oral decision in B.C. Supreme Court in Vancouver follows a similar finding by a B.C. Supreme Court justice in Kamloops in September last year. That case was successfully argued by defence lawyer Jeremy Jensen.

In the Kamloops decision, Justice Dev Dley found there “is no presumption that a driver’s ability to drive is affected by alcohol solely on the basis of a ‘warn’ reading.” Blowing a ‘warn’ on a roadside screening device indicates a level of intoxication between 0.05 and 0.08. In that case, Lee Michael Wilson of Kamloops was handed a driving ban after being stopped by police in Coombs on Vancouver Island last September, a ban overturned by Dley. The province appealed and that decision is being heard in the B.C. Court of Appeal next month. While police did not alter the way drivers stopped at roadblocks are handled following the September decision, lawyers said the second ruling should prompt change.

McLeod said in an email B.C.’s immediate roadside suspension laws will stand. “Individuals who drink and drive will be held to account with immediate roadside driving prohibitions, vehicle impoundments and monetary penalties,” he said. “We’ve led the way nationally on tackling drinking and driving, and the results speak for themselves — 143 lives saved and a 51 per cent reduction in alcohol-related motor-vehicle fatalities.”

In the decision, a B.C. Supreme Court justice did not accept the prohibition given to driver Wendy Richardson by the superintendent’s office. Richardson was pulled over at a roadblock and compelled to blow into a screening device, where she registered a ‘warn.’ No other evidence of impairment was given. Lee argued successfully, in the wake of a similar argument by Kamloops lawyer Jensen, that police need to suspect some evidence of impairment before a prohibition can be handed out — that a ‘warn’ reading alone is not enough.

Under the new laws introduced in 2010, the Superintendent of Motor Vehicles argued it can only consider whether the roadside screening device is accurate and cannot consider evidence of impairment — slurring of speech or unsteadiness, for example — in any administrative reviews. But, two B.C. Supreme Court rulings have now sent that back for a rehearing. “There’s tens of thousands of people who could be affected by this,” said Lee, whose firm specializes in the challenges. Jensen said the second decision should force the province to change the way it handles drinking drivers. “There’s going to be big ramifications. It makes the Court of Appeal decision in Wilson very important.”

Micah Rankin, a law professor at Thompson Rivers University, is arguing that appeal in March. He said the issues are whether police require more evidence of impairment beyond drivers blowing a “warn” and whether the Superintendent has the ability to review that evidence under power given him by the Motor Vehicle Act.

Video: Global TV Significant Drunk Driving Ruling

On February 14, 2014, I was interviewed by Global TV for Unfiltered with Jill Krop regarding a successful IRP judicial review hearing I conducted. You can watch the interview and the full story here.

Mandatory Minimum Sentences for Impaired Driving

As happens every so often, a Member of Parliament has brought a Petition to Parliament requesting stricter penalties for impaired driving offences which result in death. The one before Parliament at present is known as the Thomas Petition, after an individual who was killed by an alleged impaired driver. It isn’t unheard of, and it’s probably unlikely to have any impact.

Personally, I disagree with mandatory minimums for these offences. But I particularly disagree with mandatory minimums in excess of that set out for the impaired driving simpliciter offence in cases resulting in death or injury.

The mandatory minimum penalty for impaired driving is a $1000 fine and a one-year driving prohibition. In cases where there is a death, the potential exists for life imprisonment. It is rare to see cases where individuals aren’t sentenced to some lengthy term of imprisonment in cases of death. I mean, sure, we all heard about the individual who received 90 days in Chilliwack. But those sentences are the exception to the rule. Remember Carol Berner? She received 30 months upon conviction. Her sentence was appealed as being disproportionate, and was upheld on appeal. The Supreme Court of Canada refused leave to appeal the conviction.

The point is that the Courts of this country take these cases seriously. There is no need, in my view, to tie the hands of judges with mandatory minimums when the sentencing process is treated with the utmost solemnity and seriousness. Nobody in the justice system takes impaired driving deaths lightly. Sentences like the one imposed in Ms. Berner’s case are upheld on appeal because they are within the range of sentences given to similarly situated offenders.

Jail time does very little to “solve” the problem of impaired driving. Just look at PEI, which has an informal policy of 3-day jail sentences on first conviction for impaired driving. And yet, they have one of the highest rates of impaired driving of all the provinces. And that rate of impaired driving incidents actually increased after the policy was implemented.

The goals of the sentencing process, as set out in Section 718 of the Criminal Code are not very well-served. Sure, general deterrence may be met. But nobody who drinks and drives sets out to injure or kill people. It’s a by-product of the unlawful act that is generally not punished by jail time, and so jail sentences in death cases have little to do with deterrence from what I can tell. If PEI is any example, jail doesn’t keep people from drinking and driving. Maybe it’s the simply fact that alcohol impairs judgment, (See also: any Vine video, ever) which means that people who choose to get behind the wheel aren’t necessarily thinking about the consequences. I think it’s important to keep in mind that intoxication is a defence to most criminal acts (a notable exception being, of course, impaired driving.)

And so to bind the hands of judges, who see cases similar and different, and individuals of all backgrounds, with mandatory minimum sentences for the more serious impaired driving offences is something that really strikes a blow against the interests of justice. Judges are trained and capable of considering the particular circumstances of an offender and determining the appropriate sentence based on the principles of sentencing and the offender’s circumstances.
I trust that Parliament recognizes that, which is why these attempts to create mandatory minimums each time have failed.

I would trust, in any event, that there would be a Constitutional challenge to such provisions, similar to the recent challenge to the minimum sentence provisions for firearms offences.

EDIT: After writing this post, I found this story about a 10-year prison term for a man convicted of impaired driving causing death. The article, I think, highlights why this sentence was much longer than the average. And that, folks, is sentencing principles at work.

Care and Control

I’m not sure if you’ve read this article, written by a former police officer. He indicates that a supervisor, sitting in the passenger seat of a vehicle and supervising a learner driver, could be charged with impaired care and control of a motor vehicle. He states: “I know, I investigated and prosecuted an impaired beginner and supervisor out of the same vehicle in the early 1980s.”

Well, things may have been different in the early 1980s. I wasn’t a lawyer then. I wasn’t even born then. But according to the criminal law now, there doesn’t appear to be any avenue by which a prosecution of a passenger could be successful, even if the passenger was supervising the driver.

Care and control is established by the prosecution in two ways. Typically, a person is observed driving the motor vehicle. So the proof is relatively easy. In other cases, however, the vehicle is not being driven but there is some course of conduct that leaves the driver in “care and control” such that there is a risk to the public. There is a presumption in the Criminal Code that any person who occupies the driver’s seat of a motor vehicle does so for the purpose of setting it in motion. That presumption can be rebutted by evidence to the contrary, i.e., evidence that there was some other reason to occupy the driver’s seat or that the subject did not have the means to readily set the vehicle in motion.

The recent Supreme Court of Canada decision, R. v. Boudreault 2012 SCC 56, sets out the test for care and control of a motor vehicle. There, the Court wrote:

“For the reasons that follow, I have concluded that “care or control”, within the meaning of s. 253(1) of the Criminal Code, signifies (1) an intentional course of conduct associated with a motor vehicle; (2) by a person whose ability to drive is impaired, or whose blood alcohol level exceeds the legal limit; (3) in circumstances that create a realistic risk, as opposed to a remote possibility, of danger to persons or property.

In Mr. Boudreault’s case, he had fallen asleep in the driver’s seat of his vehicle while waiting for a taxi. The engine was running so that he could stay warm while he waited. A taxi, apparently, never arrived. Mr. Boudreault was awakened by police who commenced an impaired driving investigation. The Court found that given the steps he had taken to ensure that he did not drive, he had rebutted the presumption.

Another leading case on the issue of care and control is
The Queen v. Toews, [1985] 2 S.C.R. 119, which states that:

“acts of care or control, short of driving, are acts which involve some use of the car or its fittings and equipment, or some course of conduct associated with the vehicle which would involve a risk of putting the vehicle in motion so that it could become dangerous.”

Thus, it is clear that there needs to be some course of conduct associated with the vehicle itself that creates a danger. Sitting in the passenger seat, supervising the driver, does not meet this standard. There is no realistic risk in the circumstances of a supervisor and a passenger that the vehicle will become dangerous. And there is no use of the car, its fittings, or equipment by the supervisor that could in any way constitute a danger to the public.

So I disagree with what Mr. Schewe suggests in his article. The elements of the offence just cannot be made out on those facts.


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