‘Reasonable Suspicion’ at the roadside? It’s the totality of the circumstances

drunk-drivingIn a way, you gotta feel kind of bad for Rhys Mitchell. In a way.

Charged with drive over .08 in early 2009 , he’s now seen his case go through every level of Manitoba’s courts.

The provincial court convicted him. The Court of Queen’s Bench acquitted.

Now, after many months of deliberations, the Court of Appeal has ruled to re-instate his conviction, setting up a potential Supreme Court battle.

His case is one that affects all Manitoba motorists stopped by police who then enter into an impaired driving investigation.

Mitchell’s case focused on whether the RCMP officer who appeared at his window after pulling him over on Roblin Boulevard early one January morning had grounds to form a “reasonable suspicion” Mitchell may be impaired may have alcohol in his body (see below) and request he blow into a roadside testing/screening device [not a breathalyzer, but an ASD].

 

The overall tension this case presents is clear: On one hand, police can’t, — if they’re to uphold the Charter — just randomly stop and ‘search’ drivers with their ASD test demands.

On the other, they can’t enforce the law and try to keep streets safer if the legal requirements to test people at the roadside are just too onerous.

As Justice Michel Monnin’s 21-page decision to overturn Mitchell’s acquittal shows, the lower courts spent a lot of time fretting over Mitchell’s comments to the officer, namely that he’d had a “couple of beers at a friend’s house” earlier and how that figured into “reasonable suspicion.”

Both those courts also found his Charter rights against unreasonable search and seizure had been breached, but only the QB found the remedy for the breach should be to toss the ASD result.

In the end, Monnin comes to the — in my view — common sense conclusion that it’s the overall circumstances of the stop and totality of the officer’s observations which leads to getting past the “reasonable suspicion” hurdle — that Mitchell’s rights weren’t breached.

From the decision:

I am not prepared to go as far as saying that a simple admission of alcohol consumption by a driver is, in and of itself, sufficient to provide reasonable grounds on which to base an ASD demand, as each case must be considered on its own facts. From a common sense perspective, however, it would be rare, if ever, that there would be an admission of alcohol consumption with nothing else – i.e., evidence as to why the vehicle was stopped, when (especially the time of the day and of the year) and where it was stopped, what was the driver’s condition, how did he or she react to the police, what were the driver’s exact words and how were they spoken, etc. These are all important factors to take into account. It is important to remember that it is the totality of the circumstances known to the officer,viewed together, that must be considered in determining whether there was a reasonable basis for his or her suspicion.

In this case, the trial judge might have found the manner in which the officer conducted his investigation to be wanting, but the facts remain that the accused was driving at night, on a busy thoroughfare, without lights, that there was an odour of alcohol emanating from the car and the accused, inanswer to a legitimate question in the circumstances, acknowledged that hehad consumed alcohol. I find the accused’s answer in this case to be similar to that under consideration by Marceau J. in Kimmel and I find his comments, to which I have previously referred, applicable in this case. Both the trial judge and the appeal judge erred by focussing on the words of the accused’s admission without considering them in the context of all of the evidence known to the officer. In so doing, each misapplied the applicable legal principles, thereby committing an error of law. In my view, after considering all of the evidence known to the officer, he had reasonable grounds to make the ASD demand when he did. It was an error in law by the trial judge to find otherwise.

It’s a fascinating case. Do give it a read:

Court of Appeal to Manitoba Corrections: Gladue ‘lip service’ comes at a cost

(Winnipeg’s Old Law Courts Building)

A single sentence buried deep in a lengthy written decision from Manitoba’s Court of Appeal contains the words many in the city’s legal community — including, no doubt, many judges — have been eagerly waiting to hear from our top court.

They’re worth reading a few times over to soak in their gravity:

“There is presently in this province either a concerning disregard or a systemic impossibility to provide what is required for judges to comply with the dictates of the Supreme Court.”  

Justice Michel Monnin wrote the above in the court’s unanimous decision to slash in half the 10-year-long sentence Queen’s Bench Justice Shane Perlmutter handed to a 23-year-old rapist who sexually assaulted an unconscious woman in her northern Manitoba home in 2010.

Monnin’s cutting words are aimed squarely at Manitoba Corrections, the provincial justice agency responsible for preparing pre-sentencing/Gladue reports for judges, a task its been doing for many years now.

Gladue reports are written to help inform judges about the particular circumstances of individual aboriginal offenders. They look at the community from which an aboriginal person hails from, their family history and what factors may have led them into contact with the criminal justice system.

The overall intent of the reports is to help judges satisfy their legal requirement (enshrined in s. 718.2(e) of the Criminal Code) to consider “all available sanctions other than imprisonment that are reasonable in the circumstances.”

These “should be considered for all offenders, with particular attention to the circumstances of aboriginal offenders,” the law says.

The intent of the Criminal Code provision — put in place in the 90s and often called the “Gladue” section — was to try and address the vast over-representation of aboriginal offenders in Canada’s jails. (Article spelling this out is here)

Roughly 74 per cent of adult inmates in Manitoba jails in 2011 were aboriginal, according to the latest Stats Can numbers.

A shameful total that’s climbed in each of the the last five years despite the intent of the law of the land.

The wake of Ipeelee

Earlier this year, a shockwave went through Manitoba’s courts, prompted by the Supreme Court’s decision in Ipeelee.

Manitoba judges started loudly demanding Gladue-based information, and demanding proper waivers if the offender didn’t wish to pursue a report (they take weeks and weeks to prepare).

The high court in Ottawa had basically issued an edict: Criminal court judges of all stripes weren’t doing their jobs to look long and hard at Gladue factors each and every time they sentence an aboriginal offender. If they didn’t start doing so, the top court implied, judges could expect to start seeing appellate courts retooling their sentences.

That’s what happened in the above rape case.

It is apparent from Monnin’s ruling that the sentencing judge got a poorly/hastily written Gladue report from Manitoba Corrections that appeared to contain ‘cut and pasted’ material from other reports — hardly the individualized effort the law requires. The law, the Supreme Court says, is not to provide a “race-based discount” on sentencing, but to ensure the sentences handed out to aboriginal offenders were made in light of the necessary context.

“The judge had at his disposal a pre-sentence report that also purported to address the Gladue factors that a judge must consider when imposing a sentence on a person of aboriginal descent,” Monnin says.

“I say purported, because the only difference that I can see between the report that was presented to the judge and a commonly-prepared pre-sentence report was that it contained a short history of the accused’s home community and the general loss of culture and identity that has afflicted aboriginal communities generally. That portion of the report is a near mirror image of a report that was submitted [in another case.] …

… Furthermore, although the report states that it “will pay particular attention to the unique circumstances of the aforementioned aboriginal individual,” I remain hard-pressed to understand how it does so, or how it could have been helpful to the judge, or any other judge for that matter, to discharge his obligation to consider the Gladue principles in crafting an appropriate sentence of this accused. 

The report, without wanting to criticize the individual who prepared it, but rather the system that permits it, reflects the problems raised by [Provincial Court Judge Fed Sandhu in an unrelated case where Sandhu talks of the lack of public confidence and respect for Gladue due to a lack of community-based and other resources to really put some teeth into the law.]

I mentioned above a “shockwave” that went through the courts at the time Ipeelee came down. It was apparent.

The net affect of the renewed focus on Gladue was for lawyers to start requesting more Gladue reports from Corrections.

My understanding of what happened is they were caught totally off guard and are still trying to keep up with the increased Gladue workload — including some totally novel requests from certain judges.  [Side note, the report took weeks to prepare, came back and the judge said he didn’t find it helpful at all in a bail setting.]

The pressure on Corrections to produce Gladue materials has sparked complaints from many lawyers who claim probation officers/report writers are simply doing “cut and paste” jobs [as referenced by Justice Monnin above] that may give the impression Gladue considerations are being given attention, but really, they’re not, in many — but not all — circumstances.

Then, quietly, a quandary developed when an NGO stepped in to fill the void.

A private aboriginal restorative justice agency in Winnipeg, Onashowewin, began writing full and comprehensive Gladue reports for offenders — reports that are repeatedly praised by judges for how informative and well-prepared they are.

Defence lawyers hipped to them in droves, many times forgoing the Corrections reports entirely.

I can’t tell you how many times the agency’s reports were lauded by judges. It’s clear from reading them that a lot of time and effort went into them.

Corrections, I’m told, got in a snit partly because the Onashowewin reports didn’t include any risk-analysis of the offender, as their mixed Gladue/pre-sentence reports do. Fair point.

Corrections won’t just write up a Gladue report without an accompanying pre-sentence report to go along with it.

The end result: Onashowewin, which receives government funding, recently introduced a new policy of charging $500 per offender for their Gladue reports.

Now, Legal Aid Manitoba is apparently balking at the notion of funding the private reports, a veteran defence lawyer said today.

Most, if not all, of the reports are written for indigent offenders depending on public representation to resolve their cases.

So I ask you — one way or another — is the system set up to truly honour the law of the land?

Today, the Court of Appeal said, ‘no, it’s not.’

And until that starts to happen, expect to see more sentences overturned.

[Another side note: for those interested in learning about virtually all the in’s and outs of Gladue, its genesis and future uses in Manitoba should read The University of Manitoba’s tremendous ‘Gladue Handbook’ recently produced by the Faculty of Law. A fascinating and worthy read.].

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“Lack of care must be serious enough to merit punishment.”

(The wreck that was Violet Gooding’s car on Dec. 3, 2008/Marcel Cretain/Winnipeg Sun)

The full facts of John Casanova’s acquittal for dangerous driving in the fatality of Violet Gooding, 90, on Dec. 3, 2008 can be found here. I won’t repeat them.

But it’s important to point out Judge Marvin Garfinkel’s ruling today followed from a consideration of a large number of applicable cases presented by the Crown and defence that dealt with dangerous driving, “the standard of care” and the continuum of negligence with respect to dangerous drive offences.

In other words, Garfinkel surveyed and interpreted the law of the land in Canada as presented to him and arrived at the following (you’ll get the import of the law and his analysis in what’s presented below).

“It is with the principles of these cases that the facts in this case involving Mr. Casanova must be considered and assessed.

Consequences of the collision in this case were tragic. Violet Gooding died. There is nothing that this court can do that can repair that harm.

It is a tragedy.

However, the principles of previous cases show that the consequences are not a determinative factor. The manner of driving in this context must be assessed.

The cases, the principles cited show that there is a continuum of negligence. A departure from a standard of care expected of a prudent driver may give rise to civil liability.

For a criminal sanction to be imposed, it must be proven there was a marked departure from the standard of care of a prudent driver.

The lack of proper care must be sufficiently serious to merit criminal punishment.

Mr. Casanova was operating his motor vehicle on St. Mary’s Road between 10 and 10:30 a.m.  The vehicle was equipped with studded tires, but it can’t be said with certaintly what effect that had on the collision.

The road was clear, the sun was shining. There was no obstruction to vision.

Mr. Casanova was speeding. His speed was excessive. He left the red light quickly and moved into the left lane.

It would appear that vehicles speeding on St. Mary’s Road in this area were not unusual.

However, Mr. Casanova’s speed was excessive.

Violet Gooding had vision problems. What effect that had on the circumstances cannot be stated. It is not known. Moreover, there is no contributory negligence factor in a criminal prosecution.

It is not known when Mr. Casanova saw the turning vehicle.

Infrences from testimony of the witnesses can be drawn that Mr. Casanova did not try to brake soon enough, or that he was traveling too fast to stop safely.

That leads to the conclusion that there was a departure from a standard of care that would justify civil liability.

However, the manner of driving did not amount to a marked departure of a standard of care warranting of criminal sanction.

The lack of prudence by speeding is a manner of driving that even the most careful driver may occasionally perform.

I am unconvinced that Mr. Casanova’s manner of driving constituted a marked departure from the standard of care of a reasonably prudent driver in similar circumstances.

Therefore I find the accused not guilty.”

I feel a Crown appeal coming on, but that’s just a hunch. What’s a bet if there is, a ground will involve the line bolded above.

Do speed limits matter in law? Stay tuned.

For the record: Saul Simmonds was Casanova’s lawyer. John Barr acted on behalf of Manitoba Prosecution Service.

The legal answering machine

 

Supreme Court of Canada (Philippe Landreville photo)

 

There’s a beautiful, funny, passage in a SCC decision released today today.

Lately, the high court has been looking at a number of criminal appeal cases where the accused believes police infringed their rights to counsel.

Specifically, police are accused of denying them proper access to lawyers/legal advice in the interrogation portion of their arrest [the part where they say a bunch of stuff that really puts them in the jackpot, or…prison.]

Anyhow, in R. v Sinclair, the court writes that one of the conditions allowing a person to re-assert their right to counsel after they’ve already done so to interrogators, there must be a change in circumstances that backs up that request.

For example, a person’s arrested for robbery and suddenly learns they’re actually on the pointy end of a murder beef.

The court notes that legal advice for a person in any interrogation situation will only be as good as what police let the person know the situation is.

From the decision:

Communication between solicitor and client is the condition precedent to the lawyer’s ability to assist. The advice will only be as good as the information on which it is based. In the case of s. 10(b), the lawyer cannot function effectively in an informational vacuum without the possibility of even a general idea of the unfolding situation in the interrogation room.

Until aware of that situation, the lawyer may be in no position to render — and the detainee may not receive — meaningful assistance beyond what could be accomplished by a recorded message:

“You have reached counsel. Keep your mouth shut. Press one to repeat this message.” In this case, the evolving situation produced information S’s lawyer needed to have to do his job.

Such an answering machine would be a blessing, I’d bet, to all the harried junior defence lawyers forced to take the drunken 3 a.m. phone calls from the cop shop.

Two other recent cases also deal with the same issue:

R. v Willier

R. v McCrimmon