Driving Offences

Truck Driver in Brocos Bus Crash Sentenced to Prison

Written on Behalf of Affleck & Barrison LLP

Last week, Jaskirat Singh Sidhu (“Sidhu”) was sentenced to eight years in prison after pleading guilty in January to 16 counts of dangerous driving causing death and 13 counts of dangerous driving causing bodily harm.

Sidhu was the semi-truck driver involved in the Humboldt Broncos bus crash in rural Saskatchewan on April 6, 2018.

WHAT HAPPENED?

The accident occurred when Sidhu drove through a stop sign and collided with a bus carrying the Humboldt Broncos junior hockey team that was heading to a playoff game. Sidhu was traveling between 86 and 96 km/h. He passed four signs warning him about the upcoming intersection that had an oversized stop sign with a flashing light.

A forensic collision report found that Sidhu did not brake at the intersection of Highway 335 and 35 before colliding with the bus. The report also indicated that Sidhu’s view of the intersection was not impeded by any environmental factors, such as trees or sunlight.

At the conclusion of the four day sentencing hearing, Sidhu apologized to his victims and took full responsibility for the crash. He stated that the accident occurred due to his inexperience as a truck driver.

More than 90 victim impact statements were presented to the court by friends and families of the victims and hours of arguments were made by lawyers. The victim statements were emotional with some families stating that they were able to forgive Sidhu, while others admitted that they would never be able to forgive him for his role in the accident.

Sidhu’s lawyer explained that he had been hired by a small Calgary trucking company three weeks prior to the accident. He spent two weeks with another trucker and then began driving on his own. Sidhu was apparently distracted by a tarp flapping on the trailer of the truck which resulted in his missing the four warning signs regarding the upcoming intersection. His lawyer advised the court that sentencing in cases of dangerous driving ranged from 18 months to 4 ½ years.

The Crown prosecutor argued that Sidhu had enough time to slow down and stop and described Sidhu’s driving as entering the intersection “like a rocket”.  He argued that Sidhu should receive a 10-year prison sentence, followed by a 10-year driving ban.

THE SENTENCE

Judge Inez Cardinal provided her sentencing decision in a makeshift courthouse at the Kerry Vickar Centre. The victim’s family and friends wore Broncos jerseys with the last names of their loved ones on the back.  Judge Cardinal began handing down her sentencing decision by reading the names of each of the victims aloud. She described the victims as:

…gifted athletes, community leaders, and team builders with hopes and dreams for the future…Some were dreaming of having a family, while others were already raising their families.

 Judge Cardinal recognized that there has been no similar case in Saskatchewan or Canada given the number of fatalities and injuries. She acknowledged that Sidhu’s remorse and guilty plea spared the victims’ families a lengthy trial and saved him from a maximum sentence of 14 years.

Judge Cardinal stated:

It is baffling, and incomprehensible, that a professional driver, even one with little experience, could miss so many markers over such a long distance. His inattention displays risky behaviour given he saw the signs but they did not register because he continued to focus on the trailers behind him.

Sidhu was sentenced to eight years for each count of causing death, and five years for each count of dangerous driving causing bodily harm. The sentences are to be served concurrently as they all arise from the same circumstances, which means the sentences will be served simultaneously.  Sidhu was also given a 10-year driving ban, a firearms prohibition, and is required to provide bodily samples for the purpose of DNA analysis.

WHAT COMES NEXT?

Sidhu grew up in India and came to Canada in 2013. He is a permanent resident, not a Canadian citizen. As a result of his conviction and sentence, Sidhu will face deportation to India.

Under Canada’s federal law, permanent residents cannot remain in Canada if they commit a crime for which the maximum sentence is at least 10 years or their jail sentence is more than six months.

As a result of this accident, the Saskatchewan government has undertaken to make changes to the intersection where the crash occurred, promising to add rumble strips and better signage.  The government has also promised to put millions of dollars into improvements at other intersections.

Although there is mandatory training for semi-truck drivers in Ontario, training for semi-truck drivers in Saskatchewan only became mandatory last week. Training for drivers across the rest of the country will also become mandatory in 2020.

If you are facing a dangerous driving charge or need to speak with an experienced criminal defence lawyer about criminal charges laid against you or your legal rights, please contact Affleck & Barrison LLP online or at 905-404-1947. We offer a free consultation and are available to help you 24 hours a day, 7 days a week. We are available when you need us most.

New Harsher Penalties Are in Force for Distracted Drivers in Ontario

Written on Behalf of Affleck & Barrison LLP

When the clock struck midnight on December 31, 2018, stiffer fines and long-lasting penalties for distracted drivers began in Ontario.

According to the Ontario Provincial Police, distracted drivers are the leading cause of fatal collisions in Ontario. In 2016, 65 people died in accidents caused by inattentive drivers.

WHAT IS DISTRACTED DRIVING?

Distracted driving is defined as driving a vehicle while engaging in another activity such as texting, reading, using any handheld device (including typing on a GPS or changing a playlist), grooming, eating, and drinking.

Using a cell phone while driving involves three types of distractions: visual, manual, and cognitive. Visual requires you to take your eyes off of the roadway. Manual entails taking your hands off of the wheel of the vehicle. Cognitive involves taking your mind off of driving. Even using a phone for a handsfree call provides a distraction to one’s cognition as your mind is taken off of the road.

STATISTICS REGARDING DISTRACTED DRIVING

Distracted driving has severe consequences to both the distracted driver, his/her passengers, and anyone within his/her path.

Statistics demonstrate that a distracted driver can fail to see up to 50% of their immediate environment.

Distracted drivers contribute to 20-30% of all motor vehicle collisions and are three times more likely to be involved in a motor vehicle accident than focused drivers.

According to Ontario’s Ministry of Transportation, deaths from collisions caused by distracted driving have doubled since 2000 in Ontario.

ONTARIO’S NEW DISTRACTED DRIVING LAWS

Beginning January 1, 2019, as part of Ontario’s Bill 174 , Ontario will have the toughest penalties for repeat distracted driving convictions.

Drivers who are found to be talking on their phones, texting, dialing, or emailing with a hand-held device will be fined up to $1,000 with a three-day licence suspension, and three demerit points.

Motorists facing a second conviction of distracted driving will face a fine of up to $2,000, a seven-day licence suspension, and six demerit points.

Drivers who have been convicted of driving distracted more than two times will be required to pay a fine of up to $3,000, will lose their licence for 30 days, and six demerit points.

Novice drivers with a graduated licence (G1, G2, M1 or M2) will face even tougher penalties. These drivers will face the same fines as more experienced drivers, in addition to:

  • 30-day licence suspensions for a first conviction;
  • 90-day licence suspensions for a second conviction; and
  • licence revocations and removal from the Graduated Licensing System for a third conviction.

In addition to the stiffer fines and greater penalties, those convicted of distracted driving can expect their insurance rates to increase.

The only exceptions to the distracted driving rules are when calling 911 in an emergency or when the driver is lawfully parked or safely pulled off of the roadway.

CARELESS AND DANGEROUS DRIVING OFFENCES

If you have endangered other people due to any type of distraction (using a hand-held or hands-free device) while driving, you may be charged with careless driving.

A driver convicted of careless driving faces fines of up to $2,000, six demerit points, and/or a jail term of six months, and a licence suspension of up to two years.

If you are charged with the dangerous operation of a motor vehicle upon consideration of the nature, condition, use of the vehicle, and the amount of traffic at the time, you may face a jail term of up to 10 years for causing bodily harm or up to 14 years for causing death.

TORONTO POLICE DISTRACTED DRIVING BLITZ

Toronto Police launched a two-week-long traffic blitz aimed at distracted drivers, which runs until January 20, 2019.

Officers will be using all types of vehicles to look for distracted drivers, including patrol cars, unmarked vehicles, bicycles, and on foot. Police officers will also be riding TTC buses and streetcars to observe drivers from above.

SIMPLE TIPS TO AVOID DISTRACTED DRIVING

Cell phones are a driver’s biggest distraction when they are behind the wheel. It is strongly recommended that drivers only use hands-free devices while driving to make short phone calls. Even drivers who are using hands-free devices become distracted by a telephone conversation while navigating through traffic.

It is also recommended that drivers turn off their phone or switch it to silent mode before getting into their vehicle. Placing one’s cell phone in the glove compartment or in a bag on the back seat will also help to avoid the temptation to use the phone while driving.

It is also suggested that drivers pre-program any GPS tools or music devices before starting their vehicle. If the need to make a call or return a text arises while driving, find somewhere safe to pull over and park your vehicle.

Drivers should also ensure that their children are comfortable, properly seat belted, and have everything they need prior to starting their vehicles.

If you are facing a distracted driving charge or another driving offence, please call the experienced criminal lawyers at Affleck & Barrison LLP at 905-404-1947 or contact us online. We offer a free consultation, and are available 24 hours a day, seven days a week.

Harsher Drinking and Driving Laws In Effect Next Week

Written on Behalf of Affleck & Barrison LLP

In Canada, impaired driving is the leading criminal cause of death and injury. Police report that in 2016, there were more than 70,000 impaired driving incidents, including almost 3,000 drug-impaired driving incidents.

On December 18, 2018, Part 2 of Canada’s new impaired driving legislation will come into force. These reforms to the impaired driving provisions of the Criminal Code include mandatory alcohol screening, facilitating the proof of blood alcohol concentration, eliminating and limiting defenses that reward risk-taking behaviour, and clarifying Crown disclosure obligations.

MANDATORY ALCOHOL SCREENING

The new reforms will implement mandatory alcohol screening in Canada. According to Canada’s Department of Justice website, research shows that up to 50% of drivers with a blood alcohol concentration above the legal limit are not detected at roadside check stops. Furthermore, other jurisdictions have found a significant decrease in fatal road accidents where mandatory alcohol screening was enacted.

With these changes, police officers will have an approved screening device on hand to test a breath sample of any driver they lawfully stop, even without reasonable suspicion that the driver has alcohol in their body. Under the current law, police officers must have reasonable suspicion that a driver has alcohol in their body before doing any roadside testing. Drivers who refuse to provide a breath sample could be subject to a criminal offence.

The Honourable Bill Blair, Minister of Border Security and Organized Crime Reduction, stated:

Giving law enforcement the ability to demand a breath sample from anyone following a lawful stop will make it easier to detect impaired drivers and get these drivers off of our roads. Those who get behind the wheel after using alcohol, or a combination of alcohol and drugs, will face serious legal consequences. Do your part in keeping yourself and loved ones safe and don’t mix alcohol or drugs with driving.

PENALTIES FOR IMPAIRED DRIVERS

Starting December 18, 2018, although mandatory minimum terms of imprisonment have not changed, there will be new mandatory minimum penalties including fines, and some higher maximum fines.

The new legislation for first time offenders with high blood alcohol concentrations that have not caused bodily harm or death is as follows:

  • With blood alcohol concentration (“BAC”) of 80 to 119 mg of alcohol per 100 mL of blood, first time offenders are subject to a mandatory fine of $1,000;
  • With BAC of 120 to 159 mg of alcohol per 100 mL of blood, first time offenders are subject to a mandatory fine of $1,500;
  • With BAC of 160 mg or over of alcohol per 100 mL of blood, first time offenders are subject to a mandatory fine of $2,000; and
  • A first time offender who refuses to comply with a lawful demand for a breath sample is subject to a $2,000 minimum fine.

For alcohol-impaired driving that does not cause bodily harm or death, the new mandatory minimum penalties for a second offence include a mandatory minimum 30 days imprisonment, and for third and subsequent offences a mandatory minimum penalty of 120 days imprisonment.

Drivers will also face the maximum penalty of life imprisonment for those convicted of dangerous driving causing death, which is a stiffer penalty than the current laws of a maximum of 14 years in jail.

DURHAM REGIONAL POLICE RELEASE NAMES OF ACCUSED IMPAIRED DRIVERS

Beginning November 15, 2018, Durham Regional Police launched their Festive R.I.D.E. program. Police officers have been conducting R.I.D.E. checks in Ajax, Pickering, Whitby, Oshawa, and Clarington.

Since commencing this campaign, Durham Police have been releasing the names of those charged with impaired driving every Monday under “Hot Topics” on their website. Those drivers that have been charged are identified by their name, age, gender, city, and the specific charges laid against them.

Earlier this month, York Regional Police also reported that they have adopted a “name-and-shame” campaign to keep impaired drivers off of the roads. York Regional Police will now release the names of those charged with impaired driving every Monday for the foreseeable future.

Durham Regional Police reported that its fourth week of the Festive R.I.D.E. program has led to 20 drivers being charged with drinking and driving offences after stopping more than 4,100 vehicles. In total, Durham Police has charged 63 drivers with drinking and driving offences during the four weeks of the R.I.D.E. program (down from 72 drivers charged at the same time last year). They also report that 51 motorists registered a WARN on a roadside screening device and had their driver’s licence suspended for 3 days.

If you have been charged with a driving offence of any kind or have any questions regarding your legal rights, please contact the experienced and knowledgeable criminal lawyers at Affleck & Barrison LLP online or at 905-404-1947. We offer a 24-hour phone service to protect your rights and to ensure that you have access to justice at all times.

Convicted Drunk Driver Marco Muzzo Could Receive Parole Next Month

Written on Behalf of Affleck & Barrison LLP

Marco Muzzo (“Muzzo”), an Ontario man convicted of impaired driving in a 2015 accident that killed three children and their grandfather, is scheduled to appear for a parole hearing on November 7, 2018.

Muzzo is seeking day parole and is eligible to apply for full parole in May 2019 and statutory release on June 18, 2022.

The children’s parents, Jennifer Neville-Lake and Ed Lake, plan to attend the parole hearing at the Beaver Creek Institution in Gravenhurst.

WHAT HAPPENED?

On September 27, 2015, Muzzo had returned home on a private jet from his bachelor party in Miami and picked up his Jeep SUV from the airport parking lot. He was speeding when he drove through a stop sign and plowed into the driver’s side of a minivan transporting the Neville-Lake family.

Muzzo was driving at least 120 km/h on a 60 km/h road at the time of the accident. Muzzo’s blood-alcohol content ranged from 0.19 to 0.25 per cent at the time of the crash, which is more than twice the legal limit in Ontario. Police officers at the scene reported that Muzzo smelled of alcohol, his eyes were glassy, he used the car to keep his balance, he was unable to understand instructions from the officers, and he urinated on himself.

Muzzo pleaded guilty to four counts of impaired driving causing death and two counts of impaired driving causing bodily harm for the crash that killed nine-year-old Daniel Neville-Lake, his five-year-old brother Harrison, his two-year-old sister Milly, and the children’s 65-year-old Grandfather, Gary Neville.

Neriza Neville, the children’s grandmother, and Josefina Frias, the children’s great-grandmother, were also injured in the accident, but survived the crash.

Ontario Superior Court Justice Michelle Fuerst sentenced Muzzo to 10-years in prison and banned him from driving for 12 years after he gets out of prison. This was the harshest sentence in Canadian history for an impaired driver without a prior record.

Justice Fuerst intended for her sentence to send a message to deter others from committing the same crime. She considered the aggravating factors of Muzzo choosing to drive drunk and that his prior speeding convictions reflected an “irresponsible attitude toward the privilege of driving”.

WHAT IS PAROLE?

According to the Corrections and Conditional Release Act, all offenders must be considered for some form of conditional release during their sentence. However, although an offender may be eligible for release does not mean that the release will be granted. The Parole Board of Canada must assess an offender’s risk to determine if a conditional release is warranted.

Parole is a conditional release from jail for offenders to serve the remainder of their sentence outside of the confines of the institution. The goal of parole programs is to provide a gradual, controlled, and supervised path between jail and freedom.

Day parole permits offenders to participate in community-based activities in preparation for full parole or statutory release. Day parole requires the offender to return each night to a community-based residence, otherwise known as a halfway house.

The Parole Board does not automatically grant parole, each individual case must be reviewed to determine suitability for release. The Parole Board will consider the following factors in determining whether an offender should be granted parole:

  • The offender’s criminal record;
  • The seriousness and nature of the offence;
  • The offender’s behaviour while in prison;
  • The offender’s release plan; and
  • The remorse he/she has expressed for the crime, and in Muzzo’s case, his guilty plea.

Victims are also allowed to provide written victim information to the Parole Board detailing any continuing impact the crime has on their life and any concerns they have for their own safety or the safety of their family.

The Parole Board can impose conditions to the day parole release in order to lessen the risk of re-offending, such as ordering abstinence or counselling. Offenders must also obey the law and report regularly to a parole officer.

Jennifer Neville-Lake, the mother of the three children killed in this devastating accident, has posted a plea on Facebook asking supporters to write to the Parole Board of Canada to oppose Muzzo’s conditional release. She has also posted a petition on Facebook requesting that Muzzo remain in prison for the remainder of his ten year sentence. She is attempting to make an example of Muzzo in an effort to prevent future drinking and driving accidents.  Over 9,100 people have signed the petition to date, with a goal of 10,000 signatures.

We will continue to follow the Muzzo case and will report any developments on this blog.

In the meantime, if you or a loved one have been charged with an impaired driving offence or any other driving offence or have any questions regarding your legal rights, please contact the experienced and knowledgeable criminal lawyers at Affleck & Barrison LLP. We offer a 24-hour phone service to protect your rights and to ensure that you have access to justice at all times. Contact our office online or at 905-404-1947.

Woman Asleep in Her Vehicle Convicted of Impaired Driving

Written on Behalf of Affleck & Barrison LLP

An Ontario Court judge has convicted Erin Medakovic (“Medakovic”) of impaired driving when she was found asleep in a parked vehicle with the engine running and the driver’s door open.

Justice Vanessa Christie ruled that the Crown prosecutor had demonstrated “there was a realistic risk that Ms. Medakovic, who admittedly was impaired behind the wheel, may unintentionally set the vehicle in motion”.

WHAT HAPPENED?

On April 24, 2017, in the Town of Northeastern Manitoulin, the police were contacted by a man returning from working the night shift who noticed a car driver’s door open, the engine running and a woman in the driver’s seat. Officers attended at 1:50 a.m. and found a woman in a deep sleep in the reclined driver’s seat, with the door open and the engine running. The woman woke up after the officers tapped on the car window for 30 seconds. She sat up, had slow, slurred and laboured speech.

Inside the car, the officers found an LCBO bag with six empty cans and inside a purse they found Medakovic’s identification.

The officers administered a breath sample test which showed readings of 195 and 193, which were double the legal allowable level.

Medakovic told the officers she had eight beers and had been drinking since 2 p.m. She informed the officers that her last drink was at 11 p.m. and she had been asleep in her car for an hour. Medakovic told officers she thought it was ridiculous that she could not remain in her car and “sleep it off”.

At trial, Medakovic gave evidence that she had driven to Little Current from Sudbury on April 22 and was visiting friends. She parked in her male friend’s driveway, but her friend needed access to his driveway so he moved her car to the grass shoulder in front of his home. She told her male friend that she was trying to stay the night with a couple of friends and if that did not work out, she would sleep in her car. Medakovic gave evidence that her plans did not work out, so she decided to sleep in her car and turned the vehicle on to keep her warm. She could not comment on how or why the driver’s door was ajar.

Medakovic was charged with impaired driving and having more than the legal allowable level of alcohol in her system while driving.

CARE OR CONTROL OF A MOTOR VEHICLE

Medakovic was charged and convicted under Section 253 of the Criminal Code (“CC”), which reads as follows:

253(1) Every one commits an offence who operates a motor vehicle or vessel or operates or assists in the operation of an aircraft or of railway equipment or has the care or control of a motor vehicle, vessel, aircraft or railways equipment, whether it is in motion or not,

 (a)  while the person’s ability to operate the vehicle, vessel, aircraft or railway equipment is impaired by alcohol or drug; or

(b)  having consumed alcohol in such a quantity that the concentration in the person’s blood exceeds eighty milligrams of alcohol in one hundred mililitres of blood.

In her judgment, Justice Christie relied upon the Supreme Court of Canada decision of R. v. Boudreault, which outlined the essential elements of “care or control” as it applies to section 253(1) of the CC. The elements are as follows:

  • an intentional course of conduct associated with a motor vehicle;
  • by a person whose ability to drive is impaired, or whose blood alcohol level exceeds the legal limit;
  • in circumstances that create a realistic risk of danger to persons or property.

Justice Christie applied the facts of the case and found that Medakovic did not have an intention to drive that evening after she had consumed alcohol. She also found that the evidence at trial established that the stationary vehicle was positioned in a way that would not cause any safety concern and therefore not a realistic risk of danger. However, Justice Christie did find that the Crown had proven, based upon the evidence, that there was a realistic risk that Medakovic may unintentionally set the vehicle in motion.

Justice Christie found that Medakovic had care or control of a vehicle while impaired based upon the following facts that came out of the trial:

  • Medakovic was seated in the driver’s seat;
  • Medakovic locked the doors of the vehicle after she got in;
  • Medakovic became cold after she entered the vehicle and put the key in the ignition, turned the car on and put the heat on high;
  • Medakovic admitted she was impaired while in the driver’s seat and she was confused when she was awakened by the officers;
  • The officers testified that it took longer than usual to wake Medakovic up and she was initially disoriented and confused;
  • Medakovic’s feet were approximately one foot away from the car pedals;
  • Medakovic admitted she thrashes in her sleep and does not know what she is doing;
  • Medakovic admitted she is a deep sleeper and has slept walked in the past;
  • Medakovic admitted she has done things in her sleep that she is not aware of;
  • Medakovic admitted she could easily sit up and grip the steering wheel;
  • Medakovic had no explanation as to how the driver’s door became open and did not recall opening it; and
  • The vehicle was parked on a residential street, which could cause an immediate safety hazard.

Based on this evidence, Justice Christie found that the Crown had established that there was a realistic risk that Medakovic may unintentionally set the vehicle in motion while she was impaired and therefore Medakovic had the care and control of the vehicle contrary to section 253(1)(a) of the CC.

If you have been charged with a driving offence or have any questions regarding your legal rights, please contact the experienced criminal lawyers at Affleck & Barrison LLP online or at 905-404-1947. We have a 24-hour phone service for your convenience.

Fatal Accidents Increase Significantly after 4/20 Celebrations

Written on Behalf of Affleck & Barrison LLP

April 20 has become an international holiday where people gather to celebrate and consume cannabis. These mass marijuana festivities usually begin at 4:20 p.m. and continue well into the night.

A recent study has revealed that there was a slight increase in fatal U.S. car accidents on April 20 following an analysis of 25 years worth of data. Studies such as this one provide important information to the Federal and Provincial governments in deterring marijuana impaired driving in anticipation of the legalization of marijuana this summer in Canada.

WHAT DID THE STUDY ESTABLISH REGARDING THE USE OF MARIJUANA AND DRIVING ON APRIL 20?

Researchers from the University of British Columbia and the University of Toronto compared driver deaths on April 20 with deaths occurring on a day of the week before and the week after during the 25 year study of U.S. data. The study confirmed that fatal car crashes were increased by 12% (142 driver deaths) on the evening of April 20. The study also found that the risk of fatal accidents among young drivers (under the age of 21) increased by 38% in the evening of April 20.

Dr. John Staples, lead author and an internist and researcher at the University of British Columbia in Vancouver, stated,

The simplest explanation is that some drivers are impaired by cannabis use, and these drivers are contributing to fatal crashes. There should be very clear messaging to the public: don’t drive high.

Although the study lacks evidence on whether marijuana was involved in any of the April 20th fatalities (as there was no police data on drug testing to confirm that marijuana was involved), researchers believe that the drug was responsible for some of the crashes.

DOES MARIJUANA USE AFFECT DRIVING?

Although marijuana has the reputation of being a relatively harmless drug, it can have short-term affects on reaction time, motor co-ordination, divided attention, short-term memory and decision-making skills.

Marijuana affects each individual differently based upon factors such as the person’s tolerance, and the strain and potency of the marijuana being used. Some who use marijuana experience a sense of relaxation, while others may experience panic, fear, anxiety or psychosis.

Following alcohol, cannabis is the substance most commonly associated with “driving under the influence”.

In Colorado (one of the first states to legalize marijuana in the U.S.), the number of deaths caused by auto-related accidents involving marijuana increased by 145% from 2013 to 2016. By 2016, 20% of all fatal motor vehicle accidents involved marijuana (in comparison to 10% in 2013).

ONTARIO’S PLAN TO KEEP OUR ROADS SAFE FOLLOWING LEGALIZATION

As we have previously blogged about, Ontario has implemented new measures to keep our roads safe by implementing tougher drug-impaired driving laws.

Ontario has enacted zero tolerance rules prohibiting young (age 21 and under) and novice (G1, G2, M1, M2) drivers from having the presence of a drug in their system. For a first offence, young and novice drivers will face a three-day suspension and a $250 fine. A second offence will result in a seven-day suspension and a $350 fine and all subsequent transgressions will result in a thirty-day suspension and a $450 fine.

Commercial drivers will also be subject to zero tolerance rules prohibiting them from having any alcohol and drugs in their system. For any offence, a commercial driver will face a three-day suspension and a $250 to $450 fine.

Ontario has also introduced escalating monetary penalties to all impaired driving offences starting at $250 for a first offence and increasing up to $450 for third and subsequent occurrences.

RECOMMENDATIONS

As we prepare for the legalization of recreational cannabis in Canada this summer, we should consider ways to avoid driving while impaired and being a passenger with an impaired driver.

We should all be reminded to:

  • Always have a designated driver; or
  • Call a friend or loved one to pick you up; or
  • Call a cab or a ridesharing service; or
  • Stay overnight and sleep it off.

It is also strongly recommended that we have an open dialogue with our children and reinforce the dangers of driving while impaired by alcohol or drugs. It is also recommended that parents model safe driving behaviour by never driving any vehicle while impaired.

If you have been charged with a driving offence or have any questions regarding your legal rights, please contact the experienced criminal lawyers at Affleck & Barrison LLP online or at 905-404-1947. We offer a 24-hour phone service to protect your rights and to ensure that you have access to justice at all times.

Two Ontario Cases Fall Apart As a Result of Police Failure to Immediately Inform of Right to Counsel

Written on Behalf of Affleck & Barrison LLP

The Ontario Court of Justice has recently excluded significant evidence in two criminal cases involving impaired driving after ruling that police had violated the accuseds’ Charter rights by failing to immediately inform them of their right to counsel.

In the first case, Justice Craig Parry excluded breath samples from the driver’s trial due to a Charter breach, which resulted in a charge of driving with a blood-alcohol content above the legal limit to be dismissed.

In another case earlier this month, a man was found not guilty of having care or control of a vehicle while impaired by a drug when Justice Scott Latimer threw out the evidence after ruling that police had violated his Charter rights.

RIGHT TO COUNSEL

The right to counsel is a fundamental right included in the Canadian Charter of Rights and Freedoms (“Charter”).

10.  Everyone has the right on arrest or detention:

b.  to retain and instruct counsel without delay and to be informed of that right;

Under the Charter, the detainee must be informed of the right to retain and instruct counsel “without delay”, which has been interpreted to mean “immediately”. The Supreme Court of Canada has made it clear in the case of R. v. Suberu that avoiding delay helps to protect against the risk of self-incrimination and interference with an individual’s liberty. This obligation also requires police to abstain from obtaining incriminatory evidence from the detainee until he/she has had a reasonable chance to contact a lawyer, or the detainee has unequivocally waived the right to do so.

The police have both an informational duty and an implementational duty upon arrest or detention. The police must both inform the accused of the right to retain counsel and must provide the detainee with a reasonable opportunity to retain and instruct counsel. Justice Abella, speaking for the Supreme Court of Canada in the case of R. v. Taylor, stated:

The duty to inform a detained person of his or her right to counsel arises ”immediately” upon arrest or detention (Suberu, at paras 41-42) and the duty to facilitate access to a lawyer, in turn, arises immediately upon the detainee’s request to speak to counsel. The arresting officer is therefore under a constitutional obligation to facilitate the requested access to counsel at the first reasonably available opportunity. The burden is on the Crown to show that a given delay was reasonable in the circumstances.

WHAT HAPPENED IN THE CASE OF COLIN MITCHELL?

On October 9, 2016, a report was received by police of a possible impaired driver exiting Highway 401 at Highway 8. Constable Karen Marquis received the dispatch and pulled over the vehicle that Colin Mitchell (“Mitchell”) was driving. Mitchell failed a breathalyzer test and was then arrested. The officer waited 11 minutes after the arrest to read Mitchell his rights to counsel. In the back of the police cruiser Mitchell told the officer that he wanted to call a lawyer. He was not allowed to make the call until he arrived at the police station. Mitchell was finally given the chance to make a phone call to duty counsel 51 minutes after being placed under arrest.

On February 22, 2018, Justice Parry found that the officer breached her obligation to inform Mitchell of his right to counsel without delay and breached her implementational duty to facilitate access to counsel at the first reasonable opportunity. Justice Parry concluded that the evidence gathered in this case (the breath samples) was evidence that was attained in a manner that infringed the accused’s right to counsel. Justice Parry stated,

Exclusion of the evidence is the only remedy that can, in these circumstances, prevent bringing the administration of justice into further disrepute. To do otherwise would be to condone a perpetual indifference to the knowledge of the basic obligations created by one of the most important Charter rights.

Justice Parry, therefore, excluded the results of the breathalyzer test due to the delay in informing Mitchell of his right to counsel. The charge of driving with more than the legal limit of alcohol in his blood was dismissed.

WHAT HAPPENED IN THE CASE OF ANDREW DAVIS?

On July 17, 2016, a civilian reported a case of bad driving to the Waterloo Regional Police. Constable Tyler Shipp located the vehicle in question in a parking lot in Waterloo and Andrew Davis (“Davis”) was found in the driver’s seat. The officer spoke to Davis through an open window. Davis had sunglasses on, no shirt and was slightly dishevelled. Davis’ speech was described by the officer as garbled. The officer directed Davis to remove his sunglasses and observed Davis’ eyes to be “swollen, half open, very drowsy”.  Another officer, Constable McKenna, arrived on scene to administer a Standard Field Sobriety Test.

Following the sobriety test, Davis was arrested, handcuffed and placed in the back of the police cruiser. Drug paraphernalia, prescription drugs and what the officer thought was a meth pipe were located inside Davis’ vehicle. Eight minutes after his arrest, Davis was read his rights to counsel by police. These rights should have been read immediately following his arrest.

On March 6, 2018, Justice Latimer held that a violation of section 10(b) of the Charter occurred as a result of the police failure to provide Davis with his rights to counsel without delay upon arrest. Due to the Charter violation, Justice Latimer excluded important evidence, including all of the items seized from Davis’ vehicle and his post-arrest statement made to the police. Justice Latimer concluded that the Crown had failed to prove that Davis was impaired by a drug at the time of his care or control of his motor vehicle.

If you have been charged with impaired driving or any other driving offence, contact one of the experienced Oshawa criminal lawyers at Affleck & Barrison LLP for a free consultation. We have a 24-hour phone service for your convenience. Contact our office online or at 905-404-1947.

30 Days in Jail for Man Convicted of Drinking and Driving

Written on Behalf of Affleck & Barrison LLP

An Ontario man, who was convicted of drunk driving (over 80 driving), was recently sentenced to 30 days in jail despite having no criminal record.

WHAT HAPPENED?

In the early morning hours of September 2, 2016, a serious car accident took place in front of the Riverside Inn in Bracebridge, Ontario.

The driver in question, Brandon Greavette, was in a pick-up truck which left the roadway, knocked down a light standard, and damaged vehicles in the parking lot of the Riverside Inn before coming to a stop on top of the dislodged light standard. The airbags of his truck were set off by the impact. One of the front wheels of a small sedan were knocked off the car and the axle and suspension unit were found lying on the roadway.

Greavette, 26 years of age, only suffered minor cuts to his face as a result of the collision. He admitted to a police officer at the scene that he had been the driver of the pick-up truck and that he had been drinking. He had slurred speech, bloodshot eyes, an inability to focus, and an odour of alcohol on his breath and body. He had trouble balancing and stumbled on his way to the police car. Greavette provided two breath samples into a breathalyzer and was arrested at the scene. His readings were 140 and 130 mg of alcohol in 100 mg of blood.

Greavette was convicted of Over 80 driving following his trial on October 19, 2017 and Justice David Rose provided reasons for sentencing on January 10, 2018.

SENTENCING PRINCIPLES IN CANADA

If an accused pleads guilty or is found guilty at trial, the Court must then determine a sentence that is fair given all of the circumstances, the seriousness of the offence, and the offender’s degree of responsibility.

The Court may increase or decrease a sentence when reviewing all of the aggravating and mitigating factors relating to the offender and the offence.

An aggravating factor is something that can serve to increase the sentence, for example the offender’s criminal record. A mitigating factor is something that can serve to decrease the sentence, such as a good work history which can indicate good character.

Under section 718 of the Criminal Code, Canadian courts must impose just sentences that have one or more of the following objectives:

  • denounce the unlawful conduct and harm to the victim or the community;
  • deter the offender and others from committing crimes;
  • separate offenders from society, when necessary;
  • rehabilitate the offender;
  • provide reparations for harm done to the victim or the community; and
  • promote a sense of responsibility in offenders and acknowledgement of the harm done.

SENTENCING JUDGMENT

In making his sentencing decision, Justice Rose took into account various factors including rehabilitation, Greavette’s degree of responsibility, the fact that he was a first-time offender, and deterrence.

The mitigating factors in this case included the fact that Greavette is a relatively youthful first-time offender who has a supportive family and a good job. However, Justice Rose noted that this was tempered by the fact that Greavette continues to abuse alcohol socially which leads to assaultive behaviour.

In addition, although Greavette has no prior criminal record, the Court noted that he had several driving-related offences (i.e. Provincial Offences Act violations) on file which included four speeding tickets, tailgating, failing to stop at a signal or crosswalk, and careless driving. He had also been ticketed in 2016 for consumption of alcohol in public. These were aggravating factors.

In addition to Greavette’s problematic-driving record, additional aggravating factors included the troubling damage from the collision (including damage to the two vehicles, property damage to the light fixture, and damage to other vehicles in the parking lot at the Riverside Inn).

Justice Rose also noted that there were 6 individuals who walked away from the accident virtually and miraculously unharmed. He emphasized the devastating consequences that drunk drivers have on Canadian society and went on to cite various cases which reiterate that drinking and driving offences are serious crimes and must be treated this way by the courts.

Given all of the above these factors, Justice Rose held that this case calls for a deterrent sentence.

The Pre-Sentence Report “supports the finding that Mr. Greavette accepts responsibility for this offence but has not yet understood that when he drinks bad things happen”.

Justice Rose wrote,

After reflection I have come to the conclusion that neither a fine, nor a conditional sentence order will meet the required principals of sentencing. I do not take lightly the decision to jail a first offender, but after reflection I have determined that the sentence will be 30 days in jail.

In addition to time in jail, Greavette is to be placed on probation for 1 year following his jail sentence, must attend counselling for alcohol abuse and obey a curfew set by the probation officer. He will also undergo an 18 month driving prohibition.

If you have been charged with a driving offence or have any questions regarding your legal rights, please contact the experienced criminal lawyers at Affleck & Barrison LLP online or at 905-404-1947. We have a 24-hour phone service for your convenience.

OPP Launches 2017 Festive R.I.D.E. Campaign

Written on Behalf of Affleck & Barrison LLP

As the holiday season quickly approaches, there will be many opportunities to celebrate with family, friends and co-workers. During this time of festivities, drivers are reminded of something that cannot be stated enough: Do not drink and drive.

In an effort to reduce impaired driving across the province, the OPP has launched its annual Festive Reduce Impaired Driving Everywhere (R.I.D.E.) campaign. The campaign has already begun, and is running from November 24 to January 2, 2018.

IMPAIRED DRIVING STATISTICS: ONTARIO

So far in 2017, according to the OPP, 37 people have died in collisions on OPP-patrolled roads in which alcohol or drugs were a factor. Of the 37 people killed in these accidents, 19 people were innocent victims.

During the 2016 Festive R.I.D.E. campaign, the OPP charged 562 drivers with impaired driving after performing more than 6,875 R.I.D.E. spot checks throughout the province.

The OPP wants drivers to remember this very important message:

As we gather with family and friends this holiday season, let’s make safety a priority by planning ahead. Whether arranging for a designated driver, taking public transit, or suggesting alternate arrangements for someone you think is impaired – simple steps can ensure everybody arrives home safely.

WHAT IS R.I.D.E.?

R.I.D.E. (the acronym for “Reduced Impaired Driving Everywhere”) is an Ontario sobriety program that was established in 1977 to assist in reducing the number of accidents and injuries resulting from impaired driving.

During the holiday season, and at other times during the year, local Police Services sets up spot checks throughout the province to randomly screen motorists for driving impaired. Police award responsible drivers with R.I.D.E. CHECKS Rewards booklets for obeying the laws.

The intention of a R.I.D.E. road stop is to check for sobriety, as well as valid license, ownership, and insurance; and the mechanical fitness of vehicles.

The R.I.D.E. program provides police officers with the legal right to perform planned roadside checks to identify and charge drivers who are under the influence of alcohol. R.I.D.E. gives officers the right to briefly detain and question drivers even if there are no grounds or probable cause for believing that a driver is over the legal blood alcohol limit, impaired, or has committed any offence.

While officers are not authorized to perform other criminal investigations or searches unconnected with the purpose of R.I.D.E., there are a few exceptions to this rule, for example if there are illegal drugs or contraband in “plain view” in the vehicle.

WHAT IS REQUIRED FOR A POLICE OFFICER TO REQUIRE A BREATH SAMPLE?

When a driver is pulled over for a R.I.D.E. check, a police officer may require a breath sample be given for a roadside approved screening device (“ASD”) if the officer has a “reasonable suspicion” that the driver has alcohol in their body. A “reasonable suspicion” may be based on several factors, for example:

  • Bloodshot eyes;
  • Dilated pupils;
  • Slurred speech;
  • Odor of alcohol coming from the vicinity of the driver or on the breath;
  • Red rim watery eyes;
  • Erratic driving;
  • Gum chewing;
  • Driving with open windows in cold weather;
  • Headlights not being turned on;
  • Evasive responses to the police officer’s questions;
  • Leaning away from the window when questioned;
  • Rolling down the rear window instead of the front window when being questioned by the police;
  • Uncoordinated movement;
  • Sleepiness;
  • Lack of ability to follow simple instructions; and,
  • Admission of consumption.

The most common reason why drivers will be asked to blow into an ASD at a spot check is when a driver admits that they have had something to drink or consumed drugs prior to driving. The consumption of any alcohol or drugs will form the basis for “reasonable suspicion”.

CONSEQUENCES FOR IMPAIRED DRIVING

The amount of alcohol in your body is measured by the amount of alcohol in your blood. This is called blood alcohol concentration, otherwise known as BAC. Many factors can affect your blood alcohol level, including how fast you drink; whether you are male or female; your body weight; and, the amount of food in your system.

In Ontario (and the rest of Canada), the maximum legal BAC for fully licensed drivers is 80 milligrams of alcohol in 100 millilitres of blood (0.08). Driving with a BAC over 0.08 is a criminal offence.

There are also serious consequences for those found to be driving below 0.08. If you register between 0.05 to 0.08 you are considered in the warn range and will face provincial administrative penalties. These penalties include driver’s licence suspension, remedial alcohol education program, remedial alcohol-treatment program, ignition interlock and, monetary penalties depending upon the number of occurrences.

Drivers who blow over 0.08 milligrams of alcohol in 100 millilitres of blood will immediately have their vehicle impounded for seven days, receive an administrative road side suspension of 90 days, and be required to pay a $198.00 administrative monetary penalty.

If you have been charged with impaired driving or another driving offence, contact our office online or at 905-404-1947 to schedule a free consultation with one of our knowledgeable and experienced Oshawa lawyers. We regularly handle drunk driving and over 80 defence. We have 24-hour phone service for your convenience.

 

Driver Found Not Guilty in Car Accident that Killed Pedestrian and Her Dog

Written on Behalf of Affleck & Barrison LLP

 

On November 21, 2017, Mr. Justice Peter Bawden found Gideon Fekre not guilty of dangerous operation of a motor vehicle causing death.

WHAT HAPPENED?

In April 2015, 18-year old Fekre was driving on Dundas St. E. approaching Carlaw Avenue when he crossed a bike lane and drove onto the sidewalk for 20 metres, ultimately striking and killing Kristy Hodgson and one of her two dogs that she was walking.

Fekre told the Court,

I was coming down Dundas from the Eaton Centre….My water bottle dropped, and I reacted, is the best way of putting it. I reached down  with my right hand to pick it up, kept my left hand on the steering wheel. …[I realized] the direction I was heading was onto the sidewalk toward a woman and her dogs.

Fekre testified at trial that he tried to avoid Hodgson by hitting his brakes and turning the steering wheel towards the road, but was unsuccessful.

Police officers testified that Fekre’s car had left the roadway, crossed a bike lane, and driven on the sidewalk for more than 20 metres at approximately 52 kilometres per hour. Fekre had told the officers at the scene that he had taken his eyes off the road for “just a second” while trying to retrieve a water bottle that had fallen onto the floor beneath his feet.

THE OFFENCE: DANGEROUS OPERATION OF A MOTOR VEHICLE CAUSING DEATH

The criminal charge of dangerous operation of a motor vehicle causing death is a serious criminal offence punishable by up to 14 years in prison as set out in section 249(4) of the Criminal Code of Canada. This offence consists of two components:

  • the prohibited conduct (operating a motor vehicle in a dangerous manner resulting in death); and,
  • the required degree of fault (marked departure from the standard of care that a reasonable person would observe in all the circumstances).

In the 2012 case of R. v. Roy, the Supreme Court of Canada clarified the legal principles to be applied in determining the criminal standard for dangerous driving. The Court set out the two questions to ask in determining whether the fault component is present:

  • In light of all of the relevant evidence, would a reasonable person have foreseen the risk and taken steps to avoid it if possible?
  • Was the accused’s failure to foresee the risk and take steps to avoid it, if possible, a marked departure from the standard of care expected of a reasonable person in the accused’s circumstances?

In the case of R. v. Roy, the Supreme Court of Canada found that the trial judge erred in law by inferring from the fact that Roy had committed a dangerous act while driving that his conduct displayed a marked departure from the standard of care expected of a reasonable person in the circumstances. The Supreme Court allowed the appeal, set aside the conviction and entered an acquittal.

DECISION BY THE TRIAL JUDGE

The real question before the court was whether Fekre’s reaction in the less than two seconds was a “marked deviation” from what a “reasonably prudent” driver would do under the circumstances.

Was it [reaching for a water bottle] a marked departure from what a reasonable driver would have done?

Justice Bawden found that the Crown prosecutor had not proven beyond a reasonable doubt that Fekre made a conscious decision to divert his attention at an essential moment while driving. He did state that the driving in question could lead to liability in a civil trial, but he did not meet the higher criminal standard for dangerous driving outlined by previous decisions before the Supreme Court of Canada.

Justice Bawden specified that the duration of the interruption in attention while driving was essential in coming to his decision. The evidence showed a period of inattention lasting between 0.74 seconds to 1.18 seconds. This, according to Justice Bawden, qualified as a “momentary lapse of attention” which had been deemed non-criminal by the Supreme Court. He stated, “We cannot hold drivers to a standard of ideal decision-making when making split-second decisions”. He found that Fekre made an “imprudent but reflexive decision”.

Furthermore, Fekre’s behavior at the scene showed concern for the victim and dramatic remorse, which enhanced his credibility.

CHANGES IN THE FUTURE

The Liberal government currently has a proposal on the table to establish new road safety measures, which we have previously blogged about.

The proposed legislation includes the offence of careless driving resulting in death or bodily harm with a maximum fine of $50,000.00, license suspension, and imprisonment. We will provide updates regarding this new legislation as information becomes available.

If you are facing a dangerous driving charge or have any questions regarding your legal rights, contact Affleck & Barrison LLP online or at 905-404-1947. We have a 24-hour phone service for your convenience.