New Minimum Penalties for DUIs?

There was an interesting article on the Winnipeg Sun's website a few weeks back called "Feds propose stiffer penalties for drunk drivers who kill." The Conservative government proposed a mandatory minimum 6 year jail sentence for anyone convicted of driving while impaired causing death. The legislation is being put on the back burner for now as a federal election was just called. Right now, the mandatory minimum punishment is a $1,000 fine for the following offences:

• impaired care and control of a motor vehicle
• over .08 care and control of a motor vehicle
• driving impaired
• driving over .08
• refuse to provide sample (refusal)
• driving impaired causing bodily harm
• driving over .08 causing bodily harm
• driving impaired causing death
• driving over .08 causing death

In most cases where the driver is first offender and no one is injured or dies, a fine is imposed. However, in cases where someone is injured or dies, typically the driver will receive a jail sentence. Another case this summer was when a driver received a 26 month jail sentence for drinking and texting while driving that resulted in a head on collision with another vehicle, killing the driver. You can read about that story, "Drunken texter sent to jail for fatal crash."

I conducted a poll on my website that was, by no means, an official sample of the Canadian population. There were only 17 responses in total. However, there was a pretty even split the options outlined, with half the respondents thinking a minimum punishment of 2 years jail or less and half thinking a minimum punishment of 2 years jail or more.

I agree, a $1,000 fine is wholly inappropriate as a minimum punishment for a case where someone dies at the hands of a drunk driver. However, I trust judges to listen to the facts of the case and the details about the offender to arrive at a fit and appropriate sentence. And in most of these cases where a person is killed, the driver is going to jail already. It is difficult to agree with minimum sentences in cases where a person's mind and decision making ability is impaired by alcohol. In some cases, people plan to drink and drive and I would say that they should be held more accountable for their choices. Having said that, I have had a case where the client specifically arranged for a designated driver to get home safe. However, once he was home (and in an intoxicated state) he decided that he was hungry and needed to go through a drive thru. Thank goodness no one was injured in his case, but he had made a specific plan to not drink and drive. It was only while in a state of intoxication that he decided it was a "good idea" to get some food. In a case like that, I would say that his blameworthiness is lower and he should receive a lower penalty. The problem is if there is a minimum punishment of 6 years, there is no discretion for judges to determine what is fit and appropriate. Furthermore, increasing penalties for criminal offences does not work as an effective deterrent to stop people from engaging in the behaviour and you can read more about my thoughts on that on my previous post, "New Tougher Driving Laws for Manitoba."

Related articles

• Drive impaired related offences (MichaelDyck.ca)
• Trying to Beat the Breathalyzer Test (MichaelDyck.ca)
• Steinbach Man Sleeping in Car a Criminal? (MichaelDyck.ca)
• Are you guilty? (MichaelDyck.ca)
• What is the sentencing range for an impaired driving conviction (TomRees.ca)
• Common questions about driving impaired charges and DUIs (TomRees.ca)
• What does "care and control" mean in drive impaired cases (TomRees.ca)

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.

Poll: Minimum Punishments for DUI Cases

Poll Closed on June 27, 2015 at 1:00 pm CST

Take a moment to read the question and answer the poll. I'm going to write an article in a week about the results of the poll and what the government thinks is appropriate.

The federal government wants to impose a new mandatory minimum punishment for all driving impaired causing death cases. Right now, the minimum punishment is $1,000 fine and a driving prohibition. That is the same minimum punishment as a drive impaired case where no one is injured or dies. What do you think is an appropriate mandatory minimum punishment?

•  No mandatory minimum
• Probation and/or Fine
• Provincial jail (2 years or less)
• Federal jail (2 to 4 years)
• Federal jail (4 to 6 years)
• Federal jail (6+ years) 

Poll Results

Based on 17 responses

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.

Unreasonable Delay Results In DUI Acquittal

There was a recent decision from the Court of Queen's Bench, R. v. Fenske, 2015 MBQB 81. It was an appeal by the accused, Harvey Fenske, of a conviction for operating a motor vehicle with his blood alcohol level over the legal limit.

The basic facts are that Mr. Fenske was driving through the Winkler office of Canada Customs coming from the United States. The border officer noted an odour of alcohol from the vehicle and Mr. Fenske admitted to drinking two beers. The border officer asked him to exit his vehicle and he was brought inside. The border officer made a demand that Mr. Fenske provide a sample of his breath into a portable breath machine, called an Approved Screening Device (ASD) and Mr. Fenske failed the test. (Please note, there is a larger machine at police detachments that I will call a breathalyzer machine - this machine gives exact measurements of your blood alcohol level but it is not portable.) He was then arrested for driving while impaired. A constable with the RCMP was at the border office and took custody of Mr. Fenske. They drove to the Carmen RCMP detachment even though there were closer police stations in both Winkler and Morden. Mr. Fenske argued this resulted in an unreasonable delay.

After a police officer demands that you provide a sample of your breath for testing in a breathalyzer machine, the Criminal Code says the sample must be taken "as soon as practicable." What this means it that the sample should within a reasonably prompt time and a judge is supposed to consider if the police acted reasonably and expeditiously in all the circumstances in trying to obtain a sample. Another case from Manitoba, R. v. McCorriston, 2009 MBQB 7, said that as soon as practicable means, "The Crown does not have to explain every minute of the delay. However, the failure to provide a reasonable explanation for a significant delay or a portion of that delay is a factor when determining whether the delay was reasonable" (at paragraph 28).

For Mr. Fenske's case, the judge wrote in his decision at paragraph 24, "It is for the Crown to present any evidence to show the tests were administered as soon as practicable. If there was a delay, the Crown must explain why the delay was reasonable and justified in all the circumstances." Ultimately, the court held the delay in this case was not explained, it was unreasonable, and the sample was not taken as soon as practicable. Because of that, the court excluded the breath sample results as evidence and entered an acquittal for Mr. Fenske.

It is important that police officers follow the laws and the legal tests in the Criminal Code, just as it is important for individuals to follow the laws. It is my role as a defence lawyer to ensure that the police officers investigated the case appropriately and by the book. I do not think it would be fair for the police to break the rules or to cut corners to gather evidence. If that means, in some cases, a person can walk away with an acquittal even though they blew over the legal limit, I think that is the correct result.

Related articles

• Drive impaired related offences (MichaelDyck.ca)
• Trying to Beat the Breathalyzer Test (MichaelDyck.ca)
• Steinbach Man Sleeping in Car a Criminal? (MichaelDyck.ca)
• Are you guilty? (MichaelDyck.ca)
• What is the sentencing range for an impaired driving conviction (TomRees.ca)
• Common questions about driving impaired charges and DUIs (TomRees.ca)
• What does "care and control" mean in drive impaired cases (TomRees.ca)

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.

New Tougher Driving Laws for Manitoba

I recently wrote an article about Cell Phones and Driving in Manitoba and already I need to update the information. The Province of Manitoba just announced new consequences for distracted drivers, which includes using cell phones, and impaired drivers. Take note, because starting on July 1st, the new consequences come into effect.

Right now if the police catch you using a cell phone (and remember, just looking at the devices screen counts as using it), you face a $200 fine and 2 demerits. The new law will see you face 5 demerits. You can typically only earn 1 merit per year of good driving, so checking a text message or answering one phone call would result in you paying the consequences for the next 5 years. If you want to see what the actual costs are for you licence, you can check out MPI's Driver Safety Scale by clicking here.

Overall, I'm not sure if increasing the consequences will have the intended effect. I think there is still a problem where many people think it is okay to check a quick text message, reply to an email, or answer a call while in their cars. If you break it down, it is really a trained behaviour. How many times have you checked your phone with absolutely no negative consequences? Probably quite a few, if not all of them. The problem remains that it takes only one time to strike another car or a pedestrian, which can result in horrific consequences. I am curious to see if there are ways we could set up natural consequences of using your phone while driving that would happen more regularly, instead of only when the police pull you over and give you a ticket. If you have any ideas, please add a comment below.

Another change to driving laws is that it will now be MANDATORY for drivers convicted of an impaired driving related offence (like impaired driving, driving over 80, or refusing to provide a sample) to participate in the Ignition Interlock Program. Click here if you want to read the brochure. If you're convicted for a drive impaired offence, the judge will sentence you a driving prohibition where it is a criminal offence if you drive in that time period. After the judge's prohibition ends, you still need to get a valid licence from the Motor Vehicles Branch - which is Manitoba Public Insurance (MPI) here in Manitoba.

Currently, you can either wait an additional year OR register for the Ignition Interlock Program. Basically, you have to install a breath machine in your vehicle so that it will not start unless you blow a clean breath sample. The cost of the program is an estimated $2,100 per year. The new law is eliminating that choice and starting July 1st MPI will only give you a valid licence if you register for the program. In other words, you can no longer just wait it out.

Personally, I think the consequences for impaired driving are pretty serious. The problem is that most people don't know what they are. I think the general public knows it is wrong and illegal to drink and drive, but most have no clue what can happen to them if they do. That's why I think increasing penalties to try and change behaviour is not always the most effective. What would be effective is to increase the public's awareness about the consequences they could face in addition to increasing roadside check stops and publicly advertising how the police are on the lookout for impaired drivers. My idea is based on what scientific research has been able to tell us. Studies in the United states compared states that had severe consequences to ones that had less severe consequences for impaired driving. The study revealed that increasing the severity of penalties for drunk driving is not related, by itself, to lower alcohol-related motor vehicle fatalities. However, increasing the certainty of being caught for drunk driving, by utilizing check stops and testing all drivers, is associated with lower alcohol-related accidents (Evans, Neville, & Graham, 1991; Stuster & Blowers, 1995; Voas, Holder, & Gruenewald, 1999). It is really the increase in the certainty of being caught that changes our behaviour.

Related articles

• Drive impaired related offences (MichaelDyck.ca)
• What is the ignition interlock program (TomRees.ca)
• Common questions about driving impaired charges and DUIs (TomRees.ca)

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.

Supreme Court of Canada Series: R. v. St-Cloud (Tertiary Ground for Bail)

On May 15, 2015, the Supreme Court of Canada released its decision R. v. St-Cloud.  This is the first of a three part series studying and outlining the case.  The court was analyzing the reasons to justify someone's detention in custody, specifically the third reason listed in the Criminal Code.  It is commonly referred to as the tertiary ground and it is found in s. 515(10)(c):  "if the detention is necessary to maintain confidence in the administration of justice, having regard to all the circumstances, including

1. the apparent strength of the prosecution’s case,
2. the gravity of the offence,
3. the circumstances surrounding the commission of the offence, including whether a firearm was used, and
4. the fact that the accused is liable, on conviction, for a potentially lengthy term of imprisonment or, in the case of an offence that involves, or whose subject-matter is, a firearm, a minimum punishment of imprisonment for a term of three years or more."

The Supreme Court considered the tertiary ground in the 2002 decision R. v. Hall, and it refers to that earlier decision throughout this one.  The Supreme Court reminded us that the Charter of Rights and Freedoms guarantees us all the right to "not be denied reasonable bail without just cause."  This court held this means two things:  "(1) the right to “reasonable bail” in terms of quantum of any monetary component and any other conditions that might be imposed; and (2) the right not to be denied bail without “just cause" at paragraph 27.

The court also clarified that in order for the tertiary ground to be relied upon, the crime does not have to be horrific, heinous, or unexplained. Justice Wagner held, "In my view, the question whether a crime is “unexplainable” or “unexplained” is not a criterion that should guide justices in their analysis under s. 515(10) (c)" at paragraph 47. Also, the rarity of a certain crime is not something to consider because the court held "I am of the view that a “rareness” of circumstances criterion would be vague and unmanageable in practice" at paragraph 52.

Finally, the court interpreted "all of the circumstances" to potentially include other aspects besides the ones listed in the Criminal Code. It is not an exhaustive list, but the court did list the following at paragraph 71:

• the personal circumstances of the accused (age, criminal record, physical or mental condition, membership in a criminal organization, etc.) may also be relevant
• the status of the victim and the impact on society of a crime committed against that person
• the fact that the trial of the accused will be held at a much later date.

Overall, it seems like the Supreme Court is trying to open the door for judges to rely upon the tertiary ground in more cases. That may have been the original intent of Parliament when the legislation was enacted, but the way judges in provincial and superior courts have interpreted the law over time may have slowly changed how we thought the tertiary ground was supposed to work. It was obviously an issue important enough that the court heard the case in the first place. We now have to wait and see how it has an impact on a day to day basis when we apply for a client's release from custody.

Related articles

• Supreme Court of Canada Series: R. v. Nur (Mandatory Minimums for Firearms) (Michael Dyck.ca)
• How a bail hearing works in Manitoba (MichaelDyck.ca)
• What is an undertaking? (TomRees.ca)
• Ontario Court of Appeal revokes bail after contact breach (TomRees.ca)
• Michael Sona is released on bail pending appeal (TomRees.ca)
• About bail (TomRees.ca)

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.