Hats off to the Canadian Supreme Court in Regina v Vu, 2013 SCC 60 (2013) for recognizing what so many American courts don’t seem to get -- that computers are different. Police are now routinely seeking (and unfortunately getting permission) to search everyone’s computers when they have probable cause of any evidence of crimes. The Canadian Supreme Court said that there has to be individualized probable cause to search a computer and that the police cannot get to its contents by virtue a general search warrant to search a home.
Criminal defendants are frequently charged and convicted for drunk driving for sitting behind the wheel of a parked but running car trying to keep warm. The least sympathetic case happens when the Defendant’s car is stuck in a ditch with fresh tire tracks. Courts will infer the Defendant drove the car into the ditch while being drunk. A more sympathetic situation happens when the Defendant is using the vehicle as a means of temporary shelter and has no intention to move the vehicle.In R. v. Boudreault 2012 SCC 56, there was no question that the Defendant was too drunk to drive -- he asked a friend to call a cab to take him home for precisely this reason. His friend called twice and the cab didn’t come. At that point, the Defendant had to wait outside for the cab on a bitterly cold evening. According to the trial testimony, the temperature outside was -15C (5F). Eventually, the Defendant went to his trunk, started the truck, and waited for the cab. He made no attempt to move the vehicle. He eventually either passed out or fell asleep. When the cab finally showed, the cabbie didn’t try to wake the Defendant; he called the police. When the police arrived, they woke the Defendant and arrested him for drunk driving. The Quebec trial court dismissed the charges against the Defendant (2010 QCCQ 11443 (CanLII)) and the Crown appealed. The Quebec Court of Appeals reversed the dismissal stating that the Defendant had control and dominion over the vehicle (2011 QCCA 2071 (CanLII)). The opinion is in French. Click here for a Google translation of the ruling. The trial court made an express finding of fact that the Defendant had no intent to move the vehicle and did not move the vehicle. The Quebec Court of Appeals stated an intent to move or drive the car was not required.The Canadian Supreme Court disagreed. The Court accepted the trial court’s premise that the Defendant did not have an intent to move the car and that the statute needed to be interpreted in light of the statute’s purpose -- to keep drunk driver’s off the road and to protect the public. “Parliament’s objective in enacting s. 253 of the Code was to prevent a risk of danger to public safety: Toews at p. 126, citing R. v. Price (1978), 40 C.C.C. (2d) 378 (N.B.C.A.), at p. 384. Accordingly, conduct that presents no such risk falls outside the intended reach of the offence.