ARCTIC OBITER

22 | ARCTIC OBITER
The appeal would fail even if an
extension was granted.
TERRITORIAL COURT
CRIMINAL LAW – CHARTER OF
RIGHTS AND FREEDOMS –
INVESTIGATIVE DETENTION –
RIGHT TO COUNSEL – EXCLUSION
OF EVIDENCE
R v Carter
2012 NWTTC 3 (CanLII) | March 1, 2012
Presiding: Judge G. Malakoe
For the Crown: M. Johnson
For the Accused: R. Gregory
A police officer attended a single
vehicle accident and the accused
identified himself as the driver.
Nothing about the accused’s behaviour
indicated impairment, except that his
voice was raspy and there was some
slurring in his words. The officer put
the accused in the back of the police
vehicle, indicating that he was
investigating “an impaired”. Through
questioning the officer determined the
accused had been operating a motor
vehicle and within the past three hours
had consumed alcohol. The officer then
made an ASD demand and the accused
blew a “fail”. The officer then gave a
breath demand, advised the accused he
was detained for impaired operation of
a motor vehicle, and read him his right
to counsel.
Application to exclude the breath
samples dismissed - The accused was
detained when seated in the back of the
police vehicle.
The information then
obtained was significant, and as a result
of the answers from the accused, the
officer felt he had grounds for the ASD
demand. The Crown conceded this was
a s.10(b) violation but argued the
evidence should not be excluded.
Although the police conduct was
serious, it was not deliberate.
The
officer believed he was not detaining
the accused.
The fact that the officer
communicated the right to silence to the
accused and the fact that the detention
was brief and for purposes of obtaining
grounds for the ASD demand lessened
the impact of the of the breach. Over 80
is a serious offence and it is accepted
t h a t r o a d s i d e s c r e e n i n g a n d
breathalyzers are the main tools in the
investigation and proof of these types of
offences.
The accused has not
established the admission of the
statements, and consequently the breath
tests would bring the administration of
justice into disrepute.
CRIMINAL LAW – DEFENCES – SELF-
DEFENCE
R v Eyakfwo
2012 NWTTC 4 (CanLII) | March 15, 2012
Presiding: Judge B.E. Schmaltz
For the Crown: M. Lecorre
For the Accused: J. Bran
The accused struck the victim in the face
with a crowbar, wounding him.
The
only issue at trial was the applicability
of self-defence.
The accused testified
that there had been a series of conflicts
between him and the victim that
evening.
The accused picked up a
crowbar because he was afraid the
victim might be waiting for him around
a corner.
The accused was then
carrying the crowbar as he was walking
in the dark, and when he went around a
corner he saw the victim kneeling down
with his arms extended towards the
accused.
The accused testified he
thought the victim was going to “take
me down”, “attack me”, “hurt me”, and
so he swung the crowbar at the victim,
hitting him in the jaw.
Accused convicted of aggravated
assault - While the accused was scared
of the victim at some point that evening,
and may have even been scared of the
victim at the point that he hit him with
the crowbar, the self-defence provisions
of the Criminal Code did not apply
because there was intent to cause
grievous bodily harm and the accused
could not have reasonably believed he
was going to be killed or seriously hurt.
The accused’s response was completely
disproportionate to the situation.
Maureen McGuire is an Appellate Counsel
with Alberta Justice. She is a member of the
Bar in the NWT, Ontario, and Alberta. Any
comments or questions regarding case digests
would be welcomed at her email address,
Maureen.McGuire@gov.ab.ca.
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The British Columbia Branch of the CBA welcomes CBA members in the Northwest Territories to
their Sections. Information on the 72 available sections, including the Women Lawyers Forum, is
available on the CBA-BC website: cba.org/bc