Jul 9, 2015

Justice Vic Toews Dismisses Impaired Driving Appeal

R. v. Yan, 2015 MBQB 44 (CanLII)

Justice Victor E. Toews, previously of the Conservative Government, dismissed a Winnipeg man's appeal of his conviction for Driving While Over 0.08 blood/alcohol, and of his sentence of $1200.00 and a one year driving prohibition.

The issue on appeal was whether the officer had legal grounds to demand that the accused man provide a sample of his breath for analysis.

The man had been registered by police as driving 132km/h in a 90km/h zone and was pulled over. The Court's analysis included the fact that the police observed the man fumble with his wallet and could smell liquor on his breath. Once out of the car, he appeared to be unsteady on his feet.

"In my judgment, there is more than sufficient evidence for the police officer to have subjectively determined that there were reasonable and probable grounds to make the breath demand.  Furthermore, there is sufficient evidence to allow the learned trial judge to have concluded, on an objective basis, that those reasonable and probable grounds existed." (para 16)

The Court went on to provide some Charter analysis:

"Had I found that there had been a breach of the appellant’s Charter rights, I would nevertheless have admitted the breathalyzer certificate under s. 24(2) and upheld the conviction on the basis that:

1. Any breach was inadvertent or minor.  There is no suggestion of misconduct or wilful disregard of the appellant’s rights and in all respects the police officer was acting in “good faith.”

2. Given that driving on a public highway is a highly regulated activity in which the reasonable expectation of privacy is very low, any impact on the appellant’s Charter rights would have been fleeting and technical.

3. The evidence that the Crown is relying on and which it seeks to admit is reliable and collected in a relatively non-intrusive manner."

The Court dismissed the conviction and sentence appeal, commenting that he would have imposed a larger fine given the speed of driving while impaired.