Criminal Law: Testifying in Your Own Defence

March 29, 2015 Michael Dyck

When an accused person testifies in their own defence, the judge must consider the legal test established by the Supreme Court of Canada in R. v. W.(D.), [1991] 1 S.C.R. 742. R. v. W.(D.) was about the proper instructions a judge should give to a jury before they begin their deliberations, called a jury charge. The Supreme Court held a proper jury charge where an accused testifies may be:

First, if you believe the evidence of the accused, obviously you must acquit.
Second, if you do not believe the testimony of the accused but you are left in reasonable doubt by it, you must acquit.
Third, even if you are not left in doubt by the evidence of the accused, you must ask yourself whether, on the basis of the evidence which you do accept, you are convinced beyond a reasonable doubt by that evidence of the guilt of the accused.

There was recently a case from Winnipeg where Queen’s Bench Justice Chris Martin had to assess the credibility of the witnesses who testified and of the accused. Here is a link to the article: Man found not guilty of gunpoint home invasion. Justice Martin questioned why the stories from the witnesses change so much and he concluded he could not place a lot of value about what they were testifying to in court. As for the accused himself: "Generally, he cannot be described as a trustworthy individual," said Martin. "I neither believe Mr. Kolba’s alibi evidence, nor does it raise a reasonable doubt." Which means Justice Martin concluded the first and second parts of the test in R. v. W.(D.) were not satisfied. Justice Martin ruled it would be unsafe to believe anyone’s story and acquitted the accused.

About the author

Michael Dyck is a partner at Rees & Dyck Criminal Defence. He represents clients primarily from Winnipeg, Steinbach, and rural Manitoba. He has extensive experience helping people charged with criminal offences and focuses on building legal strategy with clients. To read more of his articles, please visit his partner's website TomRees.ca.

Wrongful Conviction of Former Judge Jacques Delisle

March 22, 2015 Michael Dyck

The CBC posted a fascinating article recently Jacques Delisle didn't murder his wife, forensic experts tell CBC. CBC's the fifth estate was investigating the claims by the former judge that he was not guilty of murder, despite being found guilty by a jury in 2012. During their investigation, the fifth estate spoke to multiple experts who all concluded it was a case of suicide based on:

the gun's angle
the bullet trajectory
gun powder burns

At this point, an appeal may not be possible, but "Convicted prisoners in Canada who have lost all their legal appeals are allowed by law to make a direct appeal to the federal justice minister, asking the government to re-open the case."

Overall, this was a case where the Crown Attorney had a perfect motive for Mr. Delisle - money. They argued he was having an affair with his wife and he would lose a million dollars in a divorce settlement.

My biggest question is why is it only now, after a conviction, that forensic and ballistic experts are looking at the evidence and providing their conclusions? Why wasn't this done during the police investigation or during the prosecution of the case? It is likely because of tunnel vision. The police and the Crown Attorney develop a theory of the case and then they look for evidence that confirms the theory and discount or ignore evidence that contradicts the theory. It is part of human nature but can, unfortunately, lead to wrongful convictions even though the police and the prosecutors have noble intentions.

I wrote a paper in law school for a course on Miscarriages of Justice called "Can’t Let Go: Why ethical prosecutors cannot acknowledge a miscarriage of justice." I looked at cases where DNA exonerated several people and how the prosecutors (mainly in the United States) still adamantly believed they were correct and the person was guilty. In this case, the Crown Attorney, Charles Levasseur seems that he may be suffering from tunnel vision as well because he "remains convinced Delisle pulled the trigger."

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Trying to Beat the Breathalyzer Test

March 13, 2015 Michael Dyck

Recently, there was an article about how a man from Ontario tried to beat a breathalyzer test by putting a penny in his mouth. Click here to read the full article. The officer had already made a demand for a sample of his breath at the roadside when he noticed the driver put something in his mouth. The officer asked the driver about this and he stuck out his tongue to show a penny on it. The officer asked him to take it out of his mouth but he instead decided to swallow it. He ended up getting charged with both impaired driving and obstructing a peace officer by not following the instruction to remove the penny.

The myth that putting a penny in your mouth has been around for a while. In fact, it was way back in 2003 that Discover Channel's Mythbusters tested several beat the breathalyzer myths on Episode 6 - Lightning Strikes / Tongue Piercings. You can view the episode guide for more details on Wikipedia. Needless to say, putting pennies, mints, a battery, eating onions, hyperventilating, or using mouthwash DO NOT WORK to beat the breathalyzer. Furthermore, if you try and do something to prevent the officer from doing his or her job, you may be charged with obstructing justice.

One British Columbia based law firm tried their best to beat the breathalyzer as well. They thought hyperventilating helped a bit with a roadside breath sample. You can read about their very unofficial testing here. But it seems to me that the officer would notice you hyperventilating just prior to providing a sample and that could result in obstruction charges.

So, what is the best way to beat a breathalyzer test? Do not consume alcohol before driving a motor vehicle. Some people think it is better to simply not blow or provide a sample, but then you will be charged with another criminal offence for refusal which carries the same penalties for blowing over the legal limit. The bigger problem is you could be convicted of both drive impaired and a refusal whereas you cannot be convicted of both a drive impaired and a drive over the limit. Plus, if you are charged with a refusal in Manitoba, your vehicle will be impounded for a longer period of time. The best thing to do if you are pulled over for a DUI is to comply with any demands the officer makes and then to exercise your right to speak to a lawyer to seek appropriate legal advice.

Everyone responds differently to alcohol and even though you may feel fine and be acting normally, you may still blow over the legal limit. The financial costs for a drunk driving related conviction in Canada are significant and you would also lose your licence for a year. The smart thing to do is always pre-arrange a ride, call a cab, or spend the night. For some people, one drink on an empty stomach could put them over the limit. A $50 cab ride is cheaper than the lowest fine you could ever receive for a DUI, which is $1000.

Having said all that, just because you blew over the legal limit does not mean that you have to plead guilty. In some cases, a guilty plea may be the right decision. In others, there may be issues for a judge to rule on during a trial that would determine if you're found guilty or acquitted. It is always a smart idea to get a legal opinion about what to do in your case.

About the author

Steinbach Man Sleeping in Car a Criminal?

March 5, 2015 Michael Dyck

SteinbachOnline.com recently posted a news story about a Steinbach man who was charged with impaired care and control of a motor vehicle when he was found sleeping in his car. To read the full story, click here. His breath samples were over twice the legal limit, so it seems obvious that he had been drinking, and he was sitting in the driver’s seat. It is very possible he could be convicted.

Many people do not realize that you do not have to been physically driving or moving a vehicle to be charged with a drive impaired related offence. The other thing is, if you are found in the driver’s seat of the motor vehicle, there is a legal presumption that you are – in fact – in care and control. You can argue against the presumption, but the burden is now on you to show that. The leading case on this issue is from the Supreme Court of Canada called R. v. Boudreault, 2012 SCC 56. The essential elements of the offence include:

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.

The main lesson I would want you to know is that if you enter a vehicle to sleep it off, you could be charged and convicted of a criminal offence. The best course of action is to spend the night or get a cab home. The cost of a taxi is much cheaper than the lowest possible fine you could get for this sort of crime if you are convicted, which is $1,000.

If you have had anything to drink and you must go into your vehicle, do not sit in or go near the driver’s seat for any reason – otherwise the presumption of your guilt will be triggered.

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Forced To Give Up Your Phone Password

March 5, 2015 Michael Dyck

Just a few months ago, the Supreme Court in Canada decided that police are allowed to search your cell phone or smartphone when they are arresting you. R. v. Fearon, 2014 SCC 77 held that the police can search your phone as part of a search incident to arrest but they put rules in place so it does not violate your right to be free from unreasonable search and seizure as the Charter of Rights and Freedoms requires. The rules the Supreme Court listed are:

The arrest must be lawful
The search must really be incidental to arrest (to protect police/accused/public, preserve evidence, discover evidence)
Nature of search must be tailored to its purpose (normally only looking at recently sent and received information)
Police must take detailed notes

Just yesterday, there as a news story about a Quebec resident who refused to give his smartphone password while he was at the airport to Canada Border Services Agency. Read the full story here. His case is a bit different because the CBSA has different powers than a police officer, but it raises an excellent question.

Should you be required to provide your cell phone password to the authorities so they can unlock your phone and view the information on it?

I wrote a paper about this exact issue when I was in law school but in my paper I looked at encrypted files on a computer and whether or not the police should be able to force you to provide your password to view the files. There is a law in the United Kingdom that makes it a criminal offence to not provide a password. The reason behind the law is to stamp out potential terrorists or people possessing child pornography. Now that so much information is stored on computers (especially a personal computer or cell phone), it opens up the floodgate of what the authorities could view – not necessarily that you have anything to hide, you just do not want the whole world to see it either.

I would be opposed to any law that would require you to provide your password to the authorities or face criminal charges. I value personal privacy and I’m sure many Canadians value their privacy too.