R. v. Singh, 2019 ABPC 130
The Alberta Provincial Court Case of R. v. Singh dealt with an issue regarding breath samples given on an ASD. Attempting to prevent an impaired driving conviction, the defence attempted to argue that the Code requires the police to take multiple samples on an ASD before arresting an accused individual. In this case, because only one was taken, it was argued that the evidence was acquired illegally and therefore violated the accused’s right to be secure against unreasonable search and seizure.
The judge then had to determine the correct interpretation of the Code provision in question, s. 320.27(2). In reaching their decision, the judge had to be mindful of the intention of Parliament when this law was created. The following was said at paragraph 26, “The wording of s. 320.27(2) of the Code refers to “samples of breath” in the context of “samples of breath that, in the peace officer’s opinion, are necessary to enable a proper analysis to be made.” While the plural is used regarding “samples”, the singular is used with respect to “a proper analysis”. Also troubling is the concept that even if the peace officer’s opinion is that a proper analysis had been made on one sample a second is still required. This interpretation makes no sense, particularly where there is no suggestion that a second sample would somehow make for a more meaningful screening.”
This analysis allowed the court to decide on an interpretation that avoided an otherwise absurd result that would lead to an acquittal. It is commonly understood that the government does not intend for correct interpretations the law to lead to absurd results.
R. v. Pankovcin, 2020 ONCJ 142
The Ontario Court of Justice case of R. v. Pankovcin resulted in the offender being convicted of an Over 80 offence. The facts of the case were that the offender collided with two parked cars and as a result, blocked a lane of live traffic. The offender then tried to start their car and drive away. The main issue of the case revolved around the act of operating a vehicle and if the offender had the care and control necessary to commit an offence.
There are two ways care and control can be proven in Canadian law. The first, as in this case, is that police can legally assume that anyone in the driver’s seat occupies it for the purposes of driving unless that person can prove that they could not possibly drive. The second manner to prove care and control applies if the first assumption is rebutted and if the Crown can establish that the person was impaired, they had done something involving a vehicle, and their actions created a realistic risk to other people or property. Here, because the offender was impaired and had tried to start their vehicle, they could be assumed to operate the vehicle. [at para 60]
R. v. Lewis, 2021 NSPC 2
The Provincial Court of Nova Scotia case of R. v. Lewis is another example of the application of the care and control concept. In this case, the accused was convicted for an Over 80 offence. They were found in the driver’s seat of a damaged but operational vehicle on the side of the highway. The car was not mobile, but the keys were within reach of the accused. The accused was also under the impression that the police had pulled them over.
Importantly, even though the vehicle belonged to the accused, they had not driven it. Their friend had abandoned the vehicle after the accused had damaged it because of their intoxicated state. Despite these facts, as with the above case, the presumption that the person in the driver’s seat with access to the keys can operate the vehicle applied. The judge went one step further, outlining that the accused’s mistaken perception that they had been pulled over, and the very real possibility that the accused may have driven the car at the time presented a realistic risk to other persons and property. [at para 18] This case demonstrates how seriously Canadian law takes even the possibility of impaired driving.