Adam Little

The Crown appealed the trial judge's dismissal of impaired operation and "over 80" charges against the respondent.

The trial judge found the certificate of qualified technician (CQT) inadmissible because the Crown failed to prove that the respondent was "given" a copy of the certificate as required by section 320.32(2) of the Criminal Code.

The Crown argued the trial judge erred by requiring proof beyond merely showing the document to the accused.

The appellate court dismissed the Crown's appeal, holding that the trial judge's finding was a question of fact, not law, and that "given" requires permanent transfer of the document to the accused, not merely temporary display.

The defendant was charged with refusing to comply with a breath demand under section 320.15(1) of the Criminal Code.

The trial involved a directed verdict application and a Charter application alleging violations under sections 7, 8, 9, 10(a), and 10(b).

The court found that while the directed verdict application was dismissed, the defendant's refusal to provide a breath sample was provisional only, pending access to counsel.

The police failed to meet the reasonable diligence standard by denying the defendant's repeated requests for access to the internet to find private counsel.

The court found no actus reus for the refusal offence and acquitted the defendant.

The Court of Appeal for Ontario considered three appeals arising from two convictions and an order for a new trial in impaired driving cases.

The central issue was whether, under the amended Criminal Code, the Crown must adduce direct evidence from an analyst or the analyst’s certificate to prove the alcohol standard used to calibrate an Approved Instrument, or whether the certificate or testimony of a qualified technician is sufficient.

The court followed the Yukon Court of Appeal’s decision in R. v. MacDonald, holding that the qualified technician’s certificate is evidence of the facts alleged in it, including that the alcohol standard was certified by an analyst.

The appeals were dismissed.

This is an appeal of a summary conviction where the appellant was convicted of failing or refusing to comply with a breath demand, having been acquitted of impaired operation.

The appellant challenged the conviction on two main grounds: an alleged violation of his section 10(b) Charter right to counsel and errors in the trial judge's analysis of the refusal offence, specifically regarding the unequivocal nature of the refusal and the onus of proof for reasonable excuse.

The Superior Court of Justice dismissed the appeal, finding no error in the trial judge's decision to dismiss the Charter application, as the appellant was not reasonably diligent in seeking a second consultation with counsel and no changed circumstances warranted it.

The court also found that the trial judge's finding of a "simple refusal" implicitly included a determination that the refusal was unequivocal, given the context of the Charter application findings.

An alleged error regarding the onus of proof for reasonable excuse was deemed immaterial as it was not a live issue at trial.

This Crown appeal addresses the timeframe within which an initial refusal to provide a roadside breath sample (ASD demand) can be retracted before constituting a criminal offence.

The Court of Appeal for Ontario reconciled the "same transaction" principle from R. v. Domik with the "immediately" requirement of the Criminal Code s. 320.27(1)(b).

The court held that Domik applies to ASD demands, but the "same transaction" window is limited by the time police can lawfully obtain a sample "immediately," considering operational time and unusual circumstances, as interpreted by R. v. Breault.

The trial and summary conviction appeal judges erred in law by not properly applying these constraints.

The appeal was allowed, the acquittal set aside, and a new trial ordered.

This is an appeal of a conviction for operating a motor vehicle with a blood alcohol concentration exceeding 80 mg.

The appellant alleged multiple Charter breaches, including an invalid Approved Screening Device (ASD) demand due to the officer not having the device present, delays in informing and facilitating the right to counsel, and a privacy breach during washroom use at the police station.

The appeal court, applying the Supreme Court of Canada's decision in R. v. Breault, found the ASD demand invalid, leading to cascading Charter breaches (sections 8, 9, 10(b)).

Despite these breaches, which were deemed unintentional and situational, the court dismissed the appeal, concluding that the highly reliable breathalyzer evidence should not be excluded under section 24(2) of the Charter, given the strong societal interest in prosecuting impaired driving.

The Crown appealed an acquittal for impaired care and control.

The trial judge found reasonable doubt that the accused drove the vehicle and acquitted based on the vehicle being inoperable and posing no public danger, thus rebutting the s. 320.35 presumption.

The Superior Court held that inoperability does not rebut the presumption, which only requires the accused to prove they did not occupy the driver's seat to set the vehicle in motion.

The court found the trial judge erred in law by not applying the presumption and remitted the matter for a new trial.

The Crown appealed an acquittal on "over 80" charges, where the trial judge excluded breath samples under s. 24(2) of the Charter, finding a s. 8 breach due to police delay in taking samples "as soon as practicable." The Superior Court found the trial judge erred in law by holding that s. 320.28(1) of the Criminal Code imposes a Charter-protected requirement for samples to be taken "as soon as practicable." The court clarified that this phrase relates to an evidentiary shortcut, not a Charter right.

Even if such a requirement existed, the police complied.

The court also found the trial judge's s. 24(2) analysis insufficient and incorrect, concluding that the seriousness of the state conduct was low, the impact on the accused's Charter rights was minimal, and society's interest in adjudication on the merits favored admission.

The appeal was allowed, and a new trial ordered for the "over 80" charge.

The appellant, Can Imer, appealed his conviction for "80 and over" (driving with a blood alcohol concentration exceeding 80 mg per 100 mL of blood).

The appeal raised three grounds related to alleged breaches of his s. 10(b) Charter right to counsel: failure to immediately ask if he wished to contact counsel, insufficient efforts by police to contact his counsel of choice, and being "funneled" to duty counsel.

The court found no error in the trial judge's conclusion that the s. 10(b) rights were not breached, distinguishing the facts from cases where breaches were found due to police steering or insufficient efforts.

In the alternative, the court held that even if a breach occurred, the evidence (breath samples) would not be excluded under s. 24(2) of the Charter, given the moderate seriousness of any misconduct, low impact on the accused's rights, and society's vital interest in combatting drinking and driving.

The appeal was dismissed, and the conviction upheld.

The Crown appealed the respondent's acquittal on an impaired driving charge, which resulted from the trial judge's exclusion of breath test evidence.

The trial judge found two Charter breaches: arbitrary detention (s. 9) when the respondent was placed in a police vehicle for an ASD test without reasonable necessity, and unreasonable search/seizure (s. 7 and s. 8) due to video monitoring and recording of the respondent using the toilet in her cell, where the provided privacy gown was ineffective.

The appeal court upheld the trial judge's findings of Charter violations, affirming that the increased restriction on liberty required reasonable necessity and that a reasonable expectation of privacy exists even in police cell toilets.

The court also upheld the exclusion of the breath test evidence under s. 24(2) of the Charter, finding a sufficient connection between the breaches and the evidence, and that the seriousness of the s. 8 breach warranted exclusion.

The Crown's appeal was dismissed.

The Crown appealed the respondent's acquittal on a charge of operating a conveyance with a blood alcohol concentration equal to or exceeding 80 mg.

The trial judge had acquitted the respondent on the basis that a 'deficient sample' registered by the approved instrument constituted a 'sample' under s. 320.31(1)(a) of the Criminal Code, thereby requiring a new system calibration check before the next sample.

The Summary Conviction Appeal Court allowed the appeal, holding that a deficient sample is not a 'sample' within the meaning of the provision and that there is no implied requirement for a calibration check immediately before each sample.

The court also rejected the respondent's argument that the certificate of qualified technician was inadmissible hearsay, finding itself bound by horizontal stare decisis.

A new trial was ordered.

The defendant, Timothy Tafilica, brought an application for a stay of proceedings, alleging a breach of his s. 11(b) Charter right to be tried within a reasonable time.

The total delay was 785 days (25.8 months).

The court calculated defence delay, attributing 57 days for a cancelled Crown Pre-Trial (CPT) and 105 days for defence unavailability for trial dates.

The net delay was 623 days (20.8 months), exceeding the 18-month Jordan ceiling.

The Crown argued for a deduction due to the COVID-19 pandemic, but the court found no evidence that the pandemic specifically caused the delay in this case, noting that local resource issues predated and contributed to delay.

The court granted a stay of proceedings.

The Crown appealed an acquittal of Kevin Davis for impaired driving, arguing the summary conviction appeal judge erred in upholding the trial judge's decision to exclude breath samples due to a s. 10(b) Charter informational breach.

The Court of Appeal dismissed the Crown's appeal, finding that the "obtained in a manner" issue was not properly raised, and that the appeal judge's findings on the seriousness and impact of the breach were reasonable and owed deference.

The court emphasized that the "fresh start" doctrine should be applied cautiously to informational breaches, especially when the subsequent compliance does not fully dispel the initial breach's effects.

Sean Rosenthal, charged with impaired driving, brought multiple motions seeking a stay of proceedings due to unreasonable delay under s. 11(b) of the Charter and a declaration that the Information was a nullity due to breaches of s. 505 and s. 485 of the Criminal Code, arguing violations of his s. 7 and 11(d) Charter rights.

The court dismissed all motions, finding that the net delay was below the Jordan ceiling and that the procedural errors in laying the Information did not invalidate it or result in a loss of jurisdiction over the offence, nor did they constitute Charter violations or an abuse of process.

The accused, Mikhail Koralov, faced charges of impaired driving and having a blood alcohol concentration exceeding 80 mg within two hours of operating a conveyance.

He brought several Charter applications alleging violations of sections 7, 8, 9, and 10(b).

The court found multiple Charter breaches, including delayed and insufficient communication of the right to counsel, denial of access to counsel from the police car, unreasonable handcuffing at the police division, and failure to obtain breath samples as soon as practicable.

Applying the Grant test under s. 24(2) of the Charter, the court determined that the seriousness and impact of the breaches outweighed society's interest in the evidence's admission, leading to the exclusion of the breath sample readings and the dismissal of the blood alcohol charge.

The appellant appealed his conviction for driving with a blood alcohol concentration over 80 mg.

He raised six grounds of appeal, including challenges to the admission of hearsay evidence regarding the breathalyzer's calibration, the application of the repealed presumption of identity, the reasonableness of the delay in taking breath samples, the officer's grounds for arrest, and the Crown's failure to disclose the analyst's certificate.

The Superior Court of Justice dismissed all grounds, finding no errors in the trial judge's application of the law or assessment of the evidence.

The appellant appealed her conviction for operating a motor vehicle with excess blood alcohol, challenging the trial judge's decision to admit breath test evidence under s.24(2) of the Charter and the admissibility of a qualified technician's certificate.

The appellant argued errors in assessing the seriousness and impact of Charter breaches (s.8, 9, 10(b), and a newly raised s.10(a) issue) and in balancing the factors for exclusion.

She also argued that the certificate contained inadmissible hearsay regarding the alcohol standard solution.

The court dismissed the appeal, upholding the trial judge's s.24(2) analysis, finding no error in the assessment of the seriousness or impact of the breaches, nor in the balancing of factors.

The court refused to allow the appellant to raise the s.10(a) and hearsay issues for the first time on appeal, citing an insufficient evidentiary record, presumed tactical omission, and no resulting miscarriage of justice.

The defendant was charged with impaired operation and over 80 contrary to the Criminal Code.

The defence brought a Charter application alleging breaches of sections 10(a) and 10(b), seeking exclusion of breath samples and police observations under section 24(2).

The court found minor breaches of both sections: a 45-second delay in informing the defendant of the reason for detention (s. 10(a)) and a six-minute delay in providing rights to counsel (s. 10(b)).

Applying the Grant test, the court determined that the breaches were of low to moderate seriousness and had low impact on the defendant's Charter rights, while society's interest in adjudication on the merits favored admission of the reliable evidence.

Consequently, no evidence was excluded.

The court also found that the Crown proved the technical requirements for breath samples under sections 258(1)(c)(iii) and 320.31(1)(a) of the Code.

The defendant was convicted on both impaired operation and over 80 charges.

The appellant appealed his conviction for operating a motor vehicle with a blood alcohol concentration over 80.

The offence occurred before the enactment of Bill C-46, but the trial took place after the amendments came into effect.

The appellant argued that the presumption of identity in former s. 258(1)(c) of the Criminal Code was no longer available in transitional cases and that the Crown was required to present expert evidence relating the breath test results back to the time of driving.

The Summary Conviction Appeal Court dismissed the appeal, following binding precedent that the presumption of identity remains available in transitional cases.

This is a mid-trial ruling on the admissibility of evidence in a criminal trial for impaired operation and over 80.

The court addressed two issues: the admissibility of a Certificate of Analyst and a printout from an approved instrument.

The court ruled that the Certificate of Analyst could not be marked as an exhibit due to the Crown's failure to provide prior notice as required by s. 320.32(2) of the Criminal Code, though its content could still be introduced through viva voce evidence.

Conversely, the court found that a printout from an approved instrument, even if produced by an external printer, was admissible as an exhibit under s. 320.33 of the Criminal Code, provided it was certified by a qualified technician.