500-10-006077-166 et 500-10-006164-162
Vauclair, Rancourt, Cotnam
Appeal from a conviction. Dismissed. Application for leave to appeal from the sentence. Granted. Appeal from the sentence. Allowed for the sole purpose of entering enhanced credit for pre-sentencing custody in the record.
The appellant was sentenced to concurrent terms of 6 years of imprisonment on counts of criminal negligence and operating a vehicle with a blood alcohol level over the legal limit causing death and bodily harm. He appeals the guilty verdict, alleging errors by the trial judge on the admissibility of his statements and the blood sample, which was allegedly obtained in violation of his right to counsel and his right to silence. In addition, he requests leave to appeal from the sentence, challenging the constitutionality of s. 719(3.1) Cr. C. (R.S.C. 1985, c. C-46) (Cr. C.), which does not allow an enhanced credit of one and one-half days for each day spent in pre-sentencing custody.
The police officer who arrested the appellant violated his right to silence when she questioned him about his alcohol consumption and the identity of the deceased person. Only the answer to the first question was incriminating, however, and it had no consequence at trial because the judge did not use it. In light of the very particular circumstances of this case, the administration of justice will be better served by admitting those statements into evidence. Moreover, the judge did not err in determining that the appellant had explicitly refused to immediately exercise his right to counsel before the police officer ordered him to provide a blood sample, or in determining that she had fulfilled her duty with respect to the implementation of that right.
The debate on the constitutionality of s. 719(3.1) Cr. C. is now moot. That provision was repealed and replaced by a new provision that now allows the appellant to benefit from an enhanced credit. Pre-sentencing custody was imposed on the appellant solely because he breached the conditions of his release by driving while disqualified with two aggravating circumstances: speed in an urban area and attempting to flee. The judge sentenced him to a consecutive term of one month of imprisonment for that offence, with no credit for pre-sentencing custody, and considered that offence as an aggravating factor during sentencing. Since that behaviour was properly included in the initial sentence, the appellant must benefit from an enhanced credit for the days he spent in pre-sentencing custody. The appeal from the sentence, however, is dismissed; the judge did not commit a reviewable error in that respect.
*Summary by SOQUIJ
Text of the decision: Http://citoyens.soquij.qc.ca