Mar 17, 2014

Summary of R. v. Madigan

R. v. Madigan, 2006 SKPC 2 (CanLII)
The accused is charged with care or control of a motor vehicle while impaired contrary to s. 255(1) and s. 253(a) of the Criminal Code and care or control while over .08 contrary to s. 253(b) of the Code.HELD: There is no remedy of exclusion of the Certificate of Analysis. Accordingly, the accused is guilty of care or control while over .08. The evidence does not prove impairment beyond a reasonable doubt. 1) It is clear from the evidence that the accused's vehicle was inoperable and immovable due to the damage from the accident and its location in the ditch. The defence raised the issue of whether a person can be 'in care or control of a motor vehicle' when there is no risk that the vehicle in question can be put in motion so that it can become dangerous to the public. The Court reviewed the cases. The first person to come upon the accident scene found the accused alone in the vehicle seated in the driver's seat. He saw no visible signs of anyone else at the scene. Upon approaching the vehicle, he observed the accused turn the ignition key to try and start the vehicle. There was no other evidence which established that the 'accused did not occupy that seat for the purpose of setting the vehicle in motion'. The accused has failed to rebut the presumption of care or control under s. 258(1)(a) of the Code and the Court finds that the accused was in 'care or control' of the motor vehicle. 2) Considering the case law and after objectively considering all the indicial of impairment known to the officer, together with the circumstances of the accident itself (which indicate driving error) there can be no doubt the officer had more than reasonable and probable grounds to form the requisite opinion pursuant to s. 254(2) of the Code to make a demand for samples of analysis. 3) The officer was sensitive to the immediate concern of the physical well-being of the accused. Though he may have formed his opinion in the ambulance, he wisely waited until medical personnel had made an initial assessment at the hospital before making any kind of demand. In the circumstances, the Court finds the officer made the demand at the first practical opportunity in relation to the entire investigation. 3) The officer, in coming to his conclusion to make a blood sample demand, considered a number of relevant factors, including time limits to obtain a breath sample, the severity and magnitude of the accident, the potential seriousness of the accused's head and neck injuries, the need for immediate emergency assessment and length of time it would take to treat the accused and keep him under observation. He believed the accused's condition was potentially serious and was completely justified in holding that belief. The evidence has proven the accused required immediate and emergent medical attention which made it obviously impractical to put the accused before a breathalyzer instrument within the time limit fixed by the Code. The officer had reasonable and probable grounds to believe that by reason of his physical condition, the accused may be incapable of providing a sample of his breath, or it would be impracticable to obtain a sample of his breath. All the requirements of s. 254(3) of the Code have been proven beyond a reasonable doubt. 4) The evidence discloses that the police officer made numerous efforts to ensure the accused actually spoke to a lawyer in private. After that, the accused made no further requests whatsoever to further speak to a lawyer. Following the principles set forth by the Saskatchewan Court of Appeal in R. v. Leedahl, 2002 SKCA 5, the evidence clearly establishes the accused was coherent and understood the right to counsel enunciated to him by the police officer. He in fact spoke to a lawyer and made no other requests. Further, there was no suggestion that the accused was incapable of understanding his right to counsel or that he was incapable or prevented from acting on his right. To the contrary, the evidence proves the exact opposite. The Court finds the accused has failed to demonstrate his s. 10(b) right to counsel was denied or infringed in any way.