Discussion on cases dealing with “over 80”, failure to remain at the scene of an accident and Immediate Roadside Prohibitions

Segal's Motor Vehicle and Impaired Driving Newsletter

 "Over 80"; Crown appeal; Right to counsel; Facilitating right to counsel; Burden on accused to show inadequate legal advice; Police entitled to rely on what accused says; Crown appeal allowed; Criminal Code, s. 253(1)(b); Charter of Rights, s.

24(2). R. v. Edmonton, 2014 CarswellAlta 869, 2014 ABCA 186 (Alta. C.A.): The accused was charged with "over 80". He was acquitted at trial. The Crown's summary conviction appeal was dismissed. On further appeal, a new trial was ordered. At one stage the audio at the station recorded: "it's up to you, you can keep trying, there are lots of numbers". That was after the respondent spent from 11:13 to 11:20 p.m. in the phone room trying to reach toll free numbers and was told he should call back in 10 minutes. He made other phone calls between 11:26 and 11:40 p.m. and then said he was done. The message to call back in 10 minutes was not the officer's failing as found at first instance. Nor is there a duty to probe further as to what an accused means when he says he is "done". The accused had the burden of proof to show that he had not in fact received adequate legal advice appropriate to the occasion. The police were not here to play "twenty questions". The police reasonably concluded from the appellant's actions that the respondent had terminated efforts to reach counsel.

Sentence appeal; 10 year prohibition under Motor Vehicle Act (B.C.); Guilty plea to failing to remain under provincial act and careless; While distracted killed pedestrian; Alcohol and drugs not factors; Checked pedestrian but left scene; Pre-existing anxiety attack; Appeal dismissed; Motor Vehicle Act (B.C.), s. 98.

R. v. McLaren, 2014 CarswellBC 1611, 2014 BCSC 982 (B.C. S.C.), Ross J.: The appellant pleaded guilty to careless and failing to remain under provincial legislation and received a 10 year prohibition. The issue was whether the prohibition was too long. The appellant was distracted by a passenger. Neither alcohol, drugs or speed were factors. He stopped but then fled. He suffered from anxiety. The 10 year prohibition also was on the back of an incident of driving while prohibited and disobeying a traffic control device. After canvassing the range, no discernible error was identified and the appeal was dismissed.

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