Canada: Supreme Court upholds procedures for breathalyzer evidence

Update:

On July 6, 2017 in a case cited as R. v. Alex, the Supreme Court upheld (in a 5-4 ruling) a 1976 decision which stated that the Crown did not need to prove the demand for a breath test was lawful in order to rely on evidentiary shortcuts about the accuracy of test readings. photo by fightyourtickets.ca.

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The Supreme Court of Canada is upholding procedures that permit shortcuts for allowing a motorist’s breathalyzer test results into evidence — even in cases where demanding the breath sample may have been unlawful.

In a 5-4 ruling Thursday dismissing the appeal of a British Columbia driver, the court affirmed the existing charter process for challenging a police officer’s decision to order a breath sample.

It means technicians and toxicologists can’t be forced to testify in court about the accuracy and relevance of breath tests when the argument is really about whether police had reasonable grounds to demand testing in the first place.

Instead, the Crown can rely on a simple certificate recording the breath readings of the accused.

Ruling otherwise would require additional witnesses to attend court to give evidence on matters that have no connection to the lawfulness of the breath demand — and only add to the costs and delays in an already overburdened criminal justice system, Michael J. Moldaver, a Supreme Court Puisne Justice wrote on behalf of the majority.

No one gains under this approach — but society as a whole loses out as precious court time and resources are squandered,” he said in the court’s reasons. “The evidentiary shortcuts were designed by Parliament to simplify and streamline drinking and driving proceedings.”

The Supreme Court of Canada, located in Ottawa, Ontario. In 1969 Parliament introduced evidentiary “shortcuts” into the Criminal Code, now found in ss. 258(1)(c) and 258(1)(g). These shortcuts permit the Crown to establish an accused’s blood-alcohol concentration at the time of the alleged offence by filing a certificate recording the accused’s breath readings. photo by fightyourtickets.ca

The Supreme Court upheld the impaired-driving conviction of Dion Henry Alex, who was stopped by police in Penticton, B.C., in April 2012.

An RCMP officer detected the scent of liquor and saw an open can of beer on the floor beside a passenger in Alex’s van. Alex failed a roadside test and was taken to the police detachment, where he blew above the legal blood alcohol limit in two subsequent tests.

At issue was the continuing relevance of a 1976 Supreme Court decision that said the Crown did not need to prove the demand for a breath test was lawful in order to rely on evidentiary shortcuts about the accuracy of test readings.

The introduction of the Charter of Rights and Freedoms in the 1980s added a new wrinkle, meaning that an accused person who argues a breath sample was obtained unlawfully could now initiate a charter challenge alleging unreasonable search and seizure.

In the decision Thursday, Michael J. Moldaver, a Supreme Court Puisne Justice said the charter “provides an effective recourse for challenging the lawfulness of breath demands” as well as a meaningful remedy — possible exclusion of the test results from evidence.

The interior of the Supreme Court of Canada. In a 5-4 ruling, the Supreme Court of Canada has found that the Crown need not prove the lawfulness of a demand to provide a breath sample from a person suspected of driving while impaired in order to use procedural “shortcuts” to prove the case in court. The Court did not see any reason to overturn an earlier decision of the same court in Rilling v. R., [1976]. photo by fightyourtickets.ca

Rather than make a charter challenge, Alex argued during his trial that the absence of grounds for requiring a sample meant the Crown could not use the evidentiary shortcut of a certificate.

The trial judge agreed that police lacked reasonable grounds to demand a breath sample, but cited the 1976 decision in ruling the Crown could file a certificate as evidence of Alex’s blood-alcohol concentration.

Alex unsuccessfully appealed in the British Columbia courts, then took his case to the Supreme Court.

In dissenting reasons, a minority of the high court said the 1976 decision was based on an incorrect view that relevant evidence is admissible even if it is unlawfully obtained.

Reversing that decision would not disrupt the administration of justice, the minority said, adding the Crown would still be able to prove its case where it has the evidence — even if it takes longer to do so.

Under proposed government legislation, it would be easier for police to make drivers blow into a breathalyzer to detect alcohol. Mandatory screening measures would allow police to demand a breath sample from any driver they lawfully stop.

The Supreme Court of Canada refused, in R. v. Alex, to overturn its’ earlier 1976 decision in Rilling v. R. photo by fightyourtickets.ca

 

Manitoba insurance revokes Star Trek fan’s licence plate, says message is offensive

Update

Pampers Ontario Licence Plate. photo by fightyourtickets.ca

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Manitoba Public Insurance asked a Star Trek fan to “surrender” his licence plate after complaints its message — ASIMIL8 — is offensive to indigenous people.

WINNIPEG—Manitoba Public Insurance has revoked a Star Trek fan’s personalized licence plate after receiving complaints that its message — ASIMIL8 — is offensive to indigenous people.

Nick Troller has been driving around with the plate for two years.

It’s held within a Star Trek licence frame that also bears the quotes, “We are the Borg,” and “Resistance is Futile.”

Troller tells CTV Winnipeg that on his favourite show, an enemy race of aliens called the Borg travel through the galaxy trying to assimilate other cultures into their own.

He says he thought the plate was funny and notes strangers and other Trek fans have complimented him and asked to take photos with the plate.

But Troller got a phone call Wednesday from a staff member at Manitoba Public Insurance who told him two people had complained that the word “assimilate” is offensive to indigenous people.

He also received a letter from MPI on Thursday demanding he “surrender” the plate immediately, telling him he can either get a new plate or a refund on the $100 charge.

photo by fightyourtickets.ca

“But that’s not the point,” says Troller. “We’ve become way too sensitive. You can’t say anything anymore to anybody.”

Ry Moran, from the National Centre for Truth and Reconciliation, insists the word “assimilate” is too offensive to be on a licence plate.

“For basically the entirety of this country’s history, indigenous peoples have been forcibly assimilated through really extremely destructive means and ways,” he says.

“Words like that, meant or not, have an actual impact on many people.”

MPI’s policy states that “plates cannot contain a slogan that could be considered offensive.” MPI says it takes such complaints “very seriously” and will investigate why the plate was approved in the first place.

photo by fightyourtickets.ca

Licence plates are property of the Crown and there is no appeal process.

Troller’s situation is reminiscent of a controversy in Nova Scotia, where a man named Lorne Grabher’s personalized GRABHER plate was revoked after a complaint that it was offensive to women.

The Justice Centre for Constitutional Freedoms said earlier this month that it plans to sue the Nova Scotia government over the revocation, which it sees as an infringement on freedom of expression.

photo by fightyourtickets.ca

The JCCF’s John Carpay said the GRABHER licence plate revocation is part of a wider trend in Canadian society.

“Canadians are becoming increasingly less tolerant of free expression,” he said. “You have more and more people who believe that they have a legal right to go through life without seeing or without hearing things they find to be offensive.”

Should the LSUC limit Contingency Fees?

Update: see previous posts – April 23, 2017 Ontario has the most expensive auto insurance premiums in Canada and their rising again, April 15, 2017 Ontario roads safest in country but drivers pay the highest premiums, new report says, April 15, 2017 Ontario roads safest in country but drivers pay the highest premiums, new report says

A report by David Marshall, former CEO of the Workplace Safety and Insurance Board, found that the rates of death and injuries in Ontario are among the lowest in Canada, yet Ontarians pay the highest auto insurance premiums in the country.

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The report by David Marshall calls for faster and more efficient delivery of care to accident victims to avoid protracted legal disputes over benefits all too common under the current system.

The widespread use of personal injury lawyers to battle insurance companies indicates a “failure” in Ontario’s auto insurance system, says a government-commissioned report.

“There is clear urgency to make the accident benefits system simple and accessible without the need for legal representation,” says the report, written by David Marshall, former CEO of the Workplace Safety and Insurance Board. “In many ways, the need to have lawyers involved to negotiate settlements in what should be a straightforward, no-fault, accident benefits system signals a failure in the system.”

Marshall’s report, titled Fair Benefits Fairly Delivered: A Review of the Auto Insurance System in Ontario,” looks at the costs associated with Ontario’s auto insurance system and makes 35 recommendations to improve it. The report calls for faster and more efficient delivery of care to accident victims to avoid protracted legal disputes over benefits — disputes all too common under the current system.

Marshall states that personal injury lawyers charge approximately half a billion dollars in contingency fees annually, while insurance companies spend roughly the same in legal fees and expenses to defend claims. Every year, between 25 per cent and 35 per cent of claimants — about 15,000 to 20,000 people — hire lawyers to deal with their insurance companies, the report says.

“Clearly, a better way to deliver fair benefits to accident victims needs to be found,” the report says.

Claire Wilkinson, a Burlington personal injury lawyer and president-elect of the Ontario Trial Lawyers Association, which represents about 1,200 personal injury lawyers, said she agrees that if the accident benefits system functioned properly, people wouldn’t need lawyers.

“It’s always felt like a David-versus-Goliath battle,” Wilkinson said. “Individuals don’t have the financial ability to fight the power and financial resources of the insurance industry. So they turn to personal injury lawyers because we give them a voice and the ability to fight, to try to level the playing field.”

Marshall was appointed by the provincial government in February 2016 to review Ontario’s auto insurance industry and his report was quietly posted online this month. He is not giving media interviews, according to the Ministry of Finance.

As reported in the Star last week, Marshall’s study found that the rates of death and injuries in the province are among the lowest in Canada, yet Ontarians pay the highest auto insurance premiums in the country.

In the report, he singles out personal injury lawyers as contributing to increasing costs and recommends that contingency fees — “you don’t pay unless we win” — be limited, while advertising and referral fees be banned or restricted.

A Star investigation published in January found that clients were often in the dark about how the contingency system works, including what fees their lawyers were taking versus what fees the lawyers were actually allowed to take. In one case the Star found, a woman injured in a car accident hired a lawyer on contingency and ended up with just 25 per cent of the total settlement paid out by the insurance company.

Marshall recommends measures to improve transparency surrounding contingency fee arrangements, including making insurance settlement cheques payable jointly to lawyers and their clients so victims understand how much of the total payout they will receive. Additionally, Marshall says clients should be informed in writing of their right to appeal fees charged by their lawyers and where to do so. The Star found many personal injury lawyers do not inform their clients in writing that they are entitled to appeal their legal fees to the provincial fee assessment office.

Marshall recommends that contingency fee agreements also be filed with the province’s insurance regulator, which would perform spot checks to ensure fairness.

Under the current system, Marshall notes, lengthy legal battles often mean accident victims do not receive timely assistance with their injuries and as a result suffer financially. Many are forced to turn to “settlement loan” companies that provide temporary funds without a credit check but at high interest rates.

“There should be very little, if any reason to have to hire a lawyer or resort to a finance company to provide a bridge loan, especially in cases where there are minor injuries,” Marshall writes.

Wilkinson, from the trial lawyers association, takes issue with Marshall’s recommendations, saying her group and the Law Society of Upper Canada were already addressing many of the concerns identified in the report. For instance, the law society voted this year to cap referral fees and provide more guidance on acceptable advertising practices, she noted. The ceiling on referral fees has yet to be determined, but recommendations from a law society working group looking at the issue are expected this week.

Wilkinson said making settlement cheques jointly payable to lawyers and their clients could create logistical problems if the two parties live in different cities. And she said clients already have to sign releases that state clearly how much their cases are settling for before they receive their money.

Wilkinson noted that restricting the amount of contingency fees lawyers charge could create “a serious access-to-justice problem.” She said her group is working with the law society to create a standardized contingency fee retainer agreement that would be easy for the public to understand.

“The Marshall report, in a couple of places, seems to suggest personal injury lawyers are part of the problem here,” she said. “We are not in opposition to our own clients. We are working together to try to get our clients fair compensation.”

Although Marshall’s report states insurers spend roughly the same amount on legal fees and expenses that lawyers charge in contingency fees, Steve Kee, a spokesperson for the industry group Insurance Bureau of Canada, says no one really knows how much money lawyers actually take from settlements.

“While our services, products and premiums are regulated, legal fees are not. No one knows exactly what lawyers pay their experts for their own assessments, so we have no idea how much of this money never makes it in the hands of accident victims,” he said.

“In the best interest of all Ontario drivers, we believe lawyers should be required to submit to the Superintendent of Insurance all information about their fees — including contingency fee arrangements, disbursements to expert witnesses, court-awarded and settled costs, and referral arrangements.”

Ontario has the most expensive auto insurance premiums in Canada and they’re rising again

Update: see post of April 15, 2017 Ontario roads safest in country but drivers pay the highest premiums, new report says

A 24K gold bar, weighing approximately 28 pounds. If you live and drive in Ontario, you should have an extra one of these tucked away to pay for the most expensive auto insurance premiums in Canada. Ontario drivers pay an average insurance premium of $1,458 per vehicle, which adds up to $10 billion a year.  photo by fightyourtickets.ca

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Provincial watchdog says approved rates in the first quarter rose on average by 1.24 per cent.

Auto insurance rates in Ontario rose in the first months of 2017, just as a government-commissioned report called the system one of the least effective in Canada.

The Financial Services Commission of Ontario says approved rates in the first quarter increased on average by 1.24 per cent.

In 2013, the Liberal government promised a 15-per-cent average cut by August 2015, but after that deadline came and went, Premier Kathleen Wynne admitted that was what she called a “stretch goal.”

The new approved rates put the government even further away from that already missed target, with the average cut since 2013 now a little over 7 per cent.

A report by Ontario’s auto insurance adviser quietly posted last week found that the province has the most expensive auto insurance premiums in Canada despite also having one of the lowest levels of accidents and fatalities.

David Marshall found that the average auto insurance premium in Ontario is $1,458, which is almost 55 per cent higher than the average of all other Canadian jurisdictions.

If Ontario’s premiums were closer to the Canadian average of about $930 it would save Ontario drivers almost 40 per cent — or about $4 billion a year, he wrote.

The system favours cash settlements in lieu of care, Marshall found. Sprains and strains — the majority of claims — often take more than a year to settle and about one-third of overall benefit costs goes toward competing expert opinions, lawyers’ fees and insurer costs to defend claims instead of going to treatment, he wrote.

Marshall’s recommendations include adopting a “care not cash” approach, exploring better ways to care for people who are catastrophically injured and making lawyers’ contingency fees more transparent.

The government says it will consult with stakeholders on the recommendations.

It has already lowered the maximum interest rate that an insurer can charge for monthly auto premium payments, prohibited minor at-fault accidents from boosting premiums and introduced a winter tire discount.

Ontario roads safest in country but drivers pay the highest premiums, new report says

Update:

Intact Insurance. Private Ontario Automobile Insurance companies are confident that their profits will remain intact, during the Wynn government’s reign in Ontario. They will continue to rake in the about $10 Billion dollars annually in the Province and smile all the way to the bank. photo by fightyourtickets.ca.

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Despite safer roads, Ontario premiums are 24% higher than Alberta’s and 100% higher than Quebec’s

A new comprehensive review of the auto insurance industry in this province has found that while Ontario’s roads are among the safest in North America, Ontario drivers pay the highest premiums in the country.

The report, written by former Workplace Safety and Insurance Board CEO David Marshall and released on April 11, found that Ontario drivers pay an average insurance premium of $1,458 per vehicle, which adds up to $10 billion a year.

Yet the report, called Fair Benefits Fairly Delivered: A Review of the Auto Insurance System in Ontario, found that while premiums here are well above the national average of $930, the province’s roads are the safest in the country.

That’s no surprise to Nesakan Thavarajah and his girlfriend Sirini Wijesekera. The two recent grads can’t afford to cover their own car insurance premiums so they are still listed as occasional drivers under their parents’ plans.

“So many people are reluctant to go through insurance if something does happen because they’re scared their premiums will go up,” said Thavarajah.

Nesakan Thavarajah & Sirini Wijesekera

Nesakan Thavarajah and his girlfriend Sirini Wijesekera. The two recent grads can’t afford to cover their own car insurance premiums, so they are still listed as occasional drivers under their parents’ plans. (Pelin Sidk (CBC)

He said he recently had a stone chip on his windshield and asked his insurance agent if he should make a claim.

“She told me, ‘You know you can, but off the record I’m telling you don’t do it because it’ll make your premiums go up,'” Thavarajah said.

In 2013, Ontario’s injury rate (62.1 per 10,000 licensed drivers) was the lowest in Canada and the province’s fatality rate (0.54 per 10,000 licensed drivers) was the second lowest in all of North America.

That’s not reflected in premiums that are 24 per cent higher than Alberta’s ($1,179) and double what drivers in Quebec pay ($724).

David Marshall

Former Workplace Safety and Insurance Board CEO David Marshall’s report, called Fair Benefits Fairly Delivered: A Review of the Auto Insurance System in Ontario, was released Apr. 11. (Canadian Underwriter)

Marshall wrote that despite consistent reductions in automobile accidents, especially serious ones, the cost of claims have consistently risen, thanks to “one of the least effective insurance systems in Canada.”

Steve Kee, a spokesperson with the Insurance Bureau of Canada, said Marshall’s report is a welcome first step in improving the insurance system in the province, which has a hybrid structure: it’s a government-mandated service delivered by private industry.

The report recommended that Ontario steer clear of switching to a government-run auto insurance system.

‘A lot of medical costs and costs to lawyers’

“We have a regulated market in terms of  the product we sell, delivered by private insurers. It’s worked well and will continue to serve Ontario drivers,” said Kee.

As for the high cost to drivers, Kee said it’s a complicated system with many moving parts.

“Claims costs are high and there are a lot of people that are involved in the process and I don’t know why claims costs are as high in Ontario as they are. There are a lot of medical costs and costs to lawyers,” said Kee.

“We’ve seen a reduction in collisions, roads are safe in Ontario and cars are safer to drive so we’d like to see claims costs come down as well.”

Marshall wrote that there is a significant amount of leakage of funds from the system from claims totaling about $1.4 billion a year, with much of those insurance benefits not going directly to those involved in accidents.

Steve Kee

Steve Kee, spokesperson for the Insurance Bureau of Canada, said Marshall’s report is a welcome first step in improving the insurance system in the province, which has a hybrid structure: government-mandated service delivered by private industry. (CBC)

“Insurers shared with me that it is taking them over a year to close even the simplest claims [and] accident victims are having a difficult time getting what they perceive to be fair benefits,” wrote Marshall.

He also points out that “one out of three accident-benefits claims goes into a dispute resolution system.”

Marshall recommends that, “Insurers should make sure that seriously injured persons are given top priority and do not need to hire lawyers or other professionals to get their entitlement.”

Lawyers an ‘essential part’ of the system

Personal injury lawyer Mike Smitiuch says the problems with the insurance system shouldn’t be blamed on the province’s lawyers.

“Lawyers play an essential part in holding insurers accountable and obtaining justice for individuals, so to paint all lawyers with the same brush is I think a mistake and dangerous to do,” said Smitiuch.

“Lawyers are being blamed for driving up costs, but lawyers are essential because insurers are denying and forcing [customers] to prove why they need the benefits.”

For example, Marshall points out that the determination of whether or not an accident victim fits what’s known as the catastrophic injury definition is extremely important, since the benefits payable to an accident victim judged to fit that category are many times higher — $1 million vs. $65,000..

 Mike Smitiuch

Personal injury lawyer Mike Smitiuch says the problems with the insurance system shouldn’t be blamed on the province’s lawyers. (CBC)

Tens of thousands of dollars — in the range of $15,000 to $20,000 — are spent by the claimant and the insurer on medical reports to arrive at or challenge a determination.

“The process to access benefits is so complex, the accident victim often hires a lawyer in order to properly access them. What can happen then, is the accident victim may ultimately find themselves with significantly less than the $1-million benefit to which they were entitled, since this amount would be partially reduced by the cost of medical exams and legal fees,” writes Marshall.

The report recommends the Ministry of Health and Long-Term Care develop a service to assess the costs for lifetime management of care for seriously injured accident victims.

But Smitiuch says that was tried before.

“Independent evaluators in hospitals to mediate disputes was an utter failure,” he said. “It reminds me of that movie Groundhog Day. We’re going back to past and living it over and over again.”