In a newly published decision from the British Columbia Supreme Court, Anthony Robinson of Filkow Law successfully defended his client on a charge of second-degree murder on account of a mental disorder rendering him incapable of knowing that the act was morally wrong. This defence is sometimes known as the “insanity defence”. It is provided for in section 16(1) of the Criminal Code:
No person is criminally responsible for an act committed or an omission made while suffering from a mental disorder that rendered the person incapable of appreciating the nature and quality of the act or omission or of knowing that it was wrong.
This defence can be divided into three parts: (1) Did the accused suffer from a mental disorder? (2) Did that mental disorder render the person incapable of appreciating the nature and quality of the act? (3) Did that mental disorder render that person incapable of knowing that the act was wrong?
What is a Mental Disorder?
A mental disorder is defined in section 2 of the Criminal Code as a “disease of the mind”. In R v Cooper, a 1979 decision of the Supreme Court of Canada, the majority of the court held that a “disease of the mind” means “any illness, disorder or abnormal condition which impairs the human mind and its functioning”. This definition excludes self-induced states, such as those caused by voluntarily consuming alcohol or drugs.
In this case, the judge agreed that the accused suffered from a mental disorder on the basis of two expert opinions that confirmed that the accused was schizophrenic.
Did that Mental Disorder Render the Accused Incapable of Appreciating the Nature and Quality of the Act?
In some cases, the accused may be so delusional that they are unaware of appreciating their actions. For example, some cases may involve a belief that the accused is fighting aliens or protecting people they are in fact harming.
In this case, the accused made statements to the police stating he wanted to turn himself in and that his intention was to kill the accused. The judge found that the accused was capable of appreciating the nature and quality of his act.
Did that Mental Disorder Render the Accused Incapable of Knowing the Act was Wrong?
In R v Chaulk, a 1990 decision of the Supreme Court of Canada, the majority of the court held that “wrong” means “morally wrong”, as opposed to “legally wrong”. In R v Oommen, a 1994 decision of the Supreme Court of Canada, the court clarified that “the crux of the inquiry is whether the accused lacks the capacity to rationally decide whether the act is right or wrong and hence to make a rational choice about whether to do it or not.”
In this case, the judge held that due to the accused’s schizophrenia and delusional beliefs that he had been poisoned by the victim, he did not have the capacity to make a rational choice about the rightness or wrongness of his act.
Ultimately, Mr. Robinson’s client was found not criminally responsible by reason of a mental disorder that made him unable to know the wrongness of his act.
Contact Anthony Robinson & Filkow Law
In any case, from murder to assault to drug trafficking, it is important to have experienced counsel who are knowledgeable and familiar with the most current law. Anthony Robinson and the Filkow Law team have over 50 years of collective experience and is a well-respected criminal law firm. If you are being investigated or have been charged with any type of criminal offence in Vancouver, Richmond, Surrey, Kelowna, or Abbotsford, contact our office for assistance.
Feb 08, 2022
On December 18, 2018, Parliament made significant changes to drinking and driving laws. Filkow Law’s Anthony Robinson wrote and presented a paper explaining these changes to the Trial Lawyers Association of British Columbia on September 24, 2021. This is the fifth instalment of this paper, outlining evidentiary issues for drinking and driving case law examples in BC.
The following is an excerpt regarding evidentiary issues surrounding samples, statements and disclosure:
Admissibility of Result of Analysis s. 320.31(7)
Subsection 320.31(7) states that voluntarily providing a sample of breath, blood, urine, sweat or other bodily substances may be used as evidence against the individual without notice. The individual need not be warned that they did not need to give the sample, or that the sample may be used as evidence against the individual. This provision has yet to be constitutionally challenged.
Admissibility of Statement s. 320.31(9)
Subsection 320.31(9) provides that a statement compelled by law is admissible for the purpose of justifying a demand for breath or other bodily samples. The section states:
(9) A statement made by a person to a peace officer, including a statement compelled under a provincial Act, is admissible in evidence for the purpose of justifying a demand made under section 320.27 or 320.28.
This provision was constitutionality challenged in R v Korduner, 2021 ABPC 83 an Alberta lower court decision. In Korduner, the accused was involved in a motor vehicle accident. On the way to the hospital after the accident, the accused made statements to a police officer in the ambulance. Those statements were compelled under the Traffic Safety Act and were used as evidence against the accused on a charge of impaired operation and refusing a breath demand.
The accused argued that section 320.31(9) of the Code violated sections 7, 8, 9 and 10(b) of the Charter. The accused relied on the “use immunity” principle to argue a conveyance operator involved in an accident is protected by the principle against self-incrimination. Following the precedents in R v White,  2 SCR 417, R v Powers, 2006 BCCA 454, R v Soules, 2011 ONCA 429, and R v Porter, 2015 ABCA 279 the court in Kroduner concluded s. 320.31(9) violated section 7 of the Charter. The court stated:
 Section 7 of the Charter provides protection for individuals who are required to report an accident. I have already found in Voir Dire #2, that the Accused/Applicant’s statements to the officer were statements compelled by section 71 TSA and that the Accused/Applicant had an honest and reasonable belief that she was statutorily compelled to answer his questions, and thus the principles of White were engaged and those statements provided are protected from any use in subsequent criminal proceedings. Per the reasoning of Powers, Soules, and Porter, use of the compelled answers are not admissible in a criminal proceeding for any purpose, including to establish reasonable grounds for a breath sample demand.
 Section 320.31(9) specifically allows for such a compelled statement to be used to justify a breath demand. The portion of section 320.31(9) dealing with a statement “compelled under a provincial Act” goes directly against the reasoning in White, Powers, Soules, and Porter. It is clear that the Accused/Applicant’s section 7 Charter rights are engaged. I find the above cited authority is determinative of the issue: that allowing a compelled statement under a Provincial Act, including a compelled statement under the TSA, would infringe the Accused/Applicant’s section 7 rights against self-incrimination in a manner not in accordance with the principles of fundamental justice. The Accused/Applicant has demonstrated that section 320.31(9) both engages section 7 of the Charter and that the impugned provision is causally connected to the prejudice arising from the infringement of the principle against self-incrimination.9
However, since the Alberta Provincial Court lacks jurisdiction to declare legislation unconstitutional, the court limited the unconstitutional finding to the accused. Further, the court clarified that the finding was contingent on a section 1 Charter hearing, which to date has not been heard.
The Crown’s disclosure obligations with respect to the proper functioning of the Approved Instrument have now been codified in s. 320.34(1). The prosecutor must disclose information about any breath samples provided pursuant to subsection 320.28 including:
(a) the results of the system blank tests;
(b) the results of the system calibration checks;
(c) any error or exception messages produced by the approved instrument at the time the samples were taken;
(d) the results of the analysis of the accused’s breath samples; and
(e) a certificate of an analyst stating that the sample of an alcohol standard that is identified in the certificate is suitable for use with an approved instrument.
Pursuant to s. 320.34(2) the accused may apply to the court for a hearing to determine whether further materials should be disclosed regarding the proper functioning of the Approved Instrument. The application must be in writing and set out detailed particulars of the information the accused seeks to have disclosed and the likely relevance of that information to determining whether the Approved Instrument was in proper working order (see s. 320.34(3)). The disclosure application hearing must be held at least 30 days before trial.
If you exceeded the blood alcohol limit while driving and need legal assistance, the lawyers at Filkow Law have over 50 years of experience dealing with all types of criminal law and driving law cases. Please feel free to give us a call.
On December 18, 2018, Parliament made significant changes to drinking and driving laws. Filkow Law’s Anthony Robinson wrote and presented a paper explaining these changes to the Trial Lawyers Association of British Columbia on September 24, 2021. This is the second instalment of this paper, explaining the new legal blood alcohol limit in BC, and timing of the blood alcohol reading.
Legal Blood Alcohol Limit is Now 79 mgs%
The following is an excerpt regarding a change in the legal blood alcohol limit:
Under the previous regime, it was an offence to have a blood alcohol concentration (BAC) in excess of 80mgs% (80 mgs of alcohol in 100ml of blood). It is now unlawful to have a BAC “equal to or exceeding” 80 mgs%. The new formulation was a response caused by rounding down BAC results to the nearest 10th mg%.
Time of the Blood Alcohol Reading
The following is an excerpt outlining how the scope of the offence has expanded from the time of driving to within two hours of the time of driving, and how two defences have been eliminated:
One of the most significant changes to the legislation is that a driver’s BAC no longer needs to be in excess of the legal limit at the time the driver had care and control of the conveyance. It is now an offence to be in excess of the legal limit within two hours of operating a motor vehicle. The predecessor legislation made it an offence to have a BAC in excess of the legal limit at the time of driving. This meant there had to be a temporal overlap between a BAC in excess of the legal limit and the time of driving. That overlap no longer applies.
Section 320.14(1)(b) states:
Everyone commits an offence who
(b) subject to subsection (5), has, within two hours after ceasing to operate a conveyance, a blood alcohol concentration that is equal to or exceeds 80 mg of alcohol in 100 mL of blood;
The curious impact of this change is that the elements of the offence of being in excess of the legal BAC limit no longer has to overlap in time with the element of care and control. Without subsection (5), this amendment would allow someone to be convicted of an over .08 offence because their BAC was in excess of the legal limit within 2 hours of driving, even though their BAC was below the legal limit at the time of driving. Thankfully the definition is subject to the limitations prescribed in subsection 320.14(5) which states:
(5) No person commits an offence under paragraph (1)(b) if
(a) they consumed alcohol after ceasing to operate the conveyance;
(b) after ceasing to operate the conveyance, they had no reasonable expectation that they would be required to provide a sample of breath or blood; and
(c) their alcohol consumption is consistent with their blood alcohol concentration as determined in accordance with subsection 320.31(1) or (2) and with their having had, at the time when they were operating the conveyance, a blood alcohol concentration that was less than 80 mg of alcohol in 100 mL of blood.
This new definition defeats two defences: bolus drinking; and the intervening drinking defence.
Bolus drinking refers to situations where a driver claims they consumed alcohol just before or during driving, but they were not over the legal limit at the time of driving because the alcohol was not fully absorbed in their blood until the time of testing. Because the bolus drinker did not consume alcohol after ceasing to operate the conveyance, they can not avail themselves of the exception prescribed in subsection 320.14(5)(a).
The intervening drinking defence is usually advanced when there has been a motor vehicle accident. The defence refers to situations where the driver claims they consumed alcohol after an accident such that they were over the legal limit after the accident but not at the time of driving. This defence is eliminated under the new definition by the operation of subsection 5(b), which provides that it is not an offence to be in excess of the legal limit within 2 hours of driving if the driver had a reasonable expectation they would be required to provide a sample of breath or blood.
It is difficult to conceive of all the circumstances in which a driver would reasonably be expected to provide a sample of breath or blood. However, being involved in a motor accident can be one of them.
This is reflected in R v Mair,  OJ No 2215. In that case, the police received a report that a vehicle drove into a tree then left the scene. The police followed a trail of radiator fluid from the scene to a driveway. When the police questioned the accused, he confessed to driving the vehicle. The accused was arrested and taken to the police detachment and provided a sample in excess of the legal limit.
The accused gave a defence of intervening drinking. He testified at trial that he consumed two pints of beer at a pub prior to the accident. After the accident, he returned home and drank 60-70% of a bottle of whiskey. The accused said he was shaken from the accident, so he drank that amount in about 25 minutes.
This case pre-dated the 2018 amendments as the offence was alleged to have occurred in 2017. However, the court commented in obiter about whether under the new provisions the accused would have had a reasonable expectation to provide a breath sample in the circumstances. The court conclude that a driver who got into an accident would have difficulty establishing they did not have a reasonable expectation to provide a sample. At para. 38 the court stated:
I would note the recent amendments to the Criminal Code which provide new specific rules governing post-driving alcohol consumption. Under the new s. 320.14(5), Mr. Mair would have been required, in order to succeed in his defence, to establish that he had no reasonable expectation that he would be required to provide a sample of his breath. Given the fact that he had just been involved in an accident, Mr. Mair would have considerable difficulty establishing that. He would also have had to provide toxicological evidence to establish a BAC consistent with post-driving consumption.
Similarly, in Madadi-Farsijani, 2021 ONCJ 196 the accused put forward a defence of intervening drinking. The accused drank one beer with a friend then drove home. On the way home, the accused rear-ended a vehicle. He testified the collision caused him to have a flashback to a prior traumatic driving experience in Iran. Upset by the flashback, the accused grabbed one of the bottles of whiskey he purchased earlier in the day and drank about 10 ounces prior to exiting the vehicle. He left the opened bottle on the front passenger seat while the other unopened bottle remained on the rear floor of the vehicle.
The court concluded that an intervening drinking defence could not succeed because in the circumstances of this accident it was reasonable to expect the accused would be required to provide a sample. At paras. 28 and 29 the court stated:
Mr. Madadi-Farsijani testified that after causing a collision on a major highway, he consumed a tremendous amount of alcohol. There was visible damage to his own vehicle. The other driver quickly confirmed to the defendant that the police would be called as an obvious consequence. On any standard, I find it was only reasonable to expect that a breath test was required in the circumstances.
 Backgrounder for former Bill C-46, An Act to amend the Criminal Code (offences relating to conveyances) and to make consequential amendments to other Acts, p 23.
 In Madadi-Farsijani, the accused also filed a constitutional challenge to the Over .08 provision on the basis the section violates ss. 7 and 11(d) of the Charter. The court deferred dealing with the constitutional challenge until it determined the accused’s guilt under the existing provisions. To date, the Charter application has yet to be heard. In R v Kaur, 2020 ONCJ 538 the accused filed a Charter application regarding ss. 320.14(1)(b) and 320.31(1). Due to a scheduling conflict, the Charter challenge was deferred to the end of trial. The challenge has yet to be heard.
If you exceeded the blood alcohol limit while driving and need legal assistance, the lawyers at Filkow Law have over 50 years of experience dealing with all types of criminal law and driving law cases. Please feel free to give us a call.
Dec 23, 2021
On December 18, 2018, Parliament made significant changes to drinking and driving laws. Filkow Law’s Anthony Robinson wrote and presented a paper explaining these changes to the Trial Lawyers Association of British Columbia on September 24, 2021. This is the first instalment of this paper, explaining the changes to drinking and driving legislation in BC.
Changes to Drinking and Driving Legislation
The following is an excerpt regarding two major changes to the language in the Criminal Code–“motor vehicle, vessel, an aircraft or railway equipment” is now “conveyance” and “forthwith” is now “immediately”:
The amendments were designed to simplify, clarify, and modernize the cumbersome language from the predecessor sections. The most obvious of these changes is the use of the term “conveyance” instead of the awkward phrase “motor vehicle, vessel, an aircraft or railway equipment” which was frequently repeated throughout the predecessor sections. This change makes the provisions much easier to read.
Another goal of the amendments was to change the language of the provisions to reflect the interpretations of the courts where possible. As one example, in section 320.27 which, allows the police to make an Approved Screening Device demand at the roadside, the term “forthwith” has been replaced with the term “immediately”. This change reflects how the term “forthwith” has been interpreted by the courts. It is also an example where the language has been modernized with more plain language text.
Alcohol Screening Provisions s. 320.27(2): ASD Demand
The following is an excerpt regarding the new police power to make roadside breath demands without reasonable suspicion of alcohol in the driver’s body. Mr. Robinson also explains issues with regards to the possession of the screening device and the timing of the test:
Although the changes made by the 2018 amendments are significant, the general structure of the legislation remains the same. Parliament has maintained the two-step process for the detection and enforcement of driving in excess of the legal blood alcohol limit. Like the predecessor legislation, the first step provides for the administration of a screening test at or near the roadside immediately after the interception of an operator. The second step provides for a breathalyser test into an Approved Instrument at a police station.
The threshold test for making an Approved Screening Device (ASD) demand at the roadside has changed significantly. Under the predecessor section, the police were required to have “reasonable suspicion of alcohol in the body” before making an Approved Screening Device demand. That remains the case under s. 320.27(1).
However, under s. 320.27(2), the police also now have the authority to demand a driver provide a sample of breath into an ASD without any suspicion that a driver has been drinking. Under the heading “Mandatory Alcohol Screening” s. 320.27(2) states:
320.27(2) If a peace officer has in his or her possession an approved screening device, the peace officer may, in the course of the lawful exercise of powers under an Act of Parliament or an Act of a provincial legislature or arising at common law, by demand, require the person who is operating a motor vehicle to immediately provide the samples of breath that, in the peace officer’s opinion, are necessary to enable a proper analysis to be made by means of that device and to accompany the peace officer for that purpose.
At least three Provincial Court decisions have held that section 320.27(2) passes constitutional muster. In R v Blysniuk, 2020 ONCJ 603 the Ontario Court of Justice found s. 320.27(2) violates sections 8 and 9 of the Charter but those violations are saved by section 1. In R v Morrison, 2020 SKPC 28 and R v Kortmeyer, 2021 SKPC 10 the Saskatchewan Provincial Court found s. 320.27(2) does not violate s. 9, but it does violate s. 8, and that violation is saved by s. 1.
There are three requirements for a valid demand under s. 320.27(2).
- The demand must be made in the course of the lawful exercise of police powers;
- The demand must be made by a peace officer who has an ASD in their possession.
- The demand must be made, and the test must be administered – immediately.
With respect to the first of these criteria, the police have always had the power to randomly stop drivers for safety and compliance reasons like checking for driver’s licenses, insurance, mechanical fitness, and driver sobriety. These stops have long been held constitutional. Under s. 320.27(2) the police now also have the authority during a traffic stop to ask the driver to blow into an ASD in the absence of any belief the driver has consumed alcohol.
With respect to the requirement that the officer has the ASD in their possession, in R v Bath, 2021 CanLII 35120 the Newfoundland Provincial Court concluded that it was not necessary for an officer to have the ASD on their person for a lawful demand under s. 320.27(2). The accused argued that the demand made by an officer was invalid because another officer got the ASD out of the trunk of the police vehicle, unboxed it, readied the device and administered it to the accused. The court concluded that it was not necessary for an officer to have the ASD on them to legally avail themselves of s. 320.27(2). At para. 34 the court said:
As a matter of law, possession includes joint possession. The ASD was in the trunk of the police car, and both police officers had both knowledge and control of the ASD. Cst. Crann was, as a result, in possession of the ASD. As a result, I conclude that Cst. Crann’s demand for ASD breath test(s) was valid, despite the fact that the ASD was in the trunk of the police car when he made the demand.
The Alberta Transportation Safety Board considered the immediacy and possession requirement in R v MacDougall (Re), 2020 ABTSB 2264. In that case, a police officer witnessed the driver throw a cigarette out of the driver’s side window while swerving his truck from side to side. The officer stopped the vehicle and asked the driver to wait while he called another officer to bring an ASD. The ASD arrived 5 minutes after the accused was pulled over and the officer read the accused the ASD demand under s. 320.27(2). The accused was then arrested for refusing to provide a sample and issued a license suspension under the Alberta Traffic Safety Act.
The demand was invalid. The Board found the immediacy requirement under section 370.27(2) requires that the process be “minimally intrusive and as prompt as possible under the circumstances”. In this case, the driver was already detained by the time the second officer arrived with the ASD and read the demand. Therefore, the breath demand was not “immediate”. At para. 21 the Board said:
In the matter at hand, the Board finds that the MAS [Mandatory Alcohol Screening] demand was not made immediately and was, therefore, invalid. Although Cst. McIsaac may have been the one to read the demand to the Appellant upon his arrival, the Appellant had already been detained by Cst. McDougall for the purpose of conducting a MAS. The immediacy requirement of an MAS demand pertains to the detainee and to the length and purpose of their detention. It does not relate to the police officer who verbalizes the demand, and the promptness with which they do so.
The fact that the police officer who eventually read the demand had the ASD in his possession was immaterial.
The Alberta Transportation Safety Board came to a similar conclusion in Kalyn-Bekevich (Re), 2020 ABTSB 1940 and excluded the evidence of the breath sample under s. 24(2) of the Charter.
ASD Demand: Summary
In summary, an officer does not need to physically possess the ASD at the time of the demand. Having the device in a nearby vehicle is sufficient. Possession includes joint possession by another officer at the scene. The promptness with which an officer can administer the test will inform the analysis about whether the officer possessed the device at the time of the demand. If a first ASD malfunctions, use of another ASD may be lawful as long as the switching of the devices does not result in delay.
 See R v Dedman,  2 SCR 2, R v Hufsky,  1 SCR 621 and R v Ladouceur,  1 SCR 1257.
 Bender (Re), 2019 ABTSB 1752.