A. E. O’Marra

The appellant appealed his convictions for dangerous operation of a motor vehicle and assault with a weapon, as well as his sentence of 112 days in custody.

The convictions arose from an incident where the appellant intentionally drove his vehicle at a co-worker in an employee parking lot.

The Summary Conviction Appeal Court dismissed the conviction appeal, finding the trial judge's credibility assessments and reasons were sufficient.

However, the sentence appeal was allowed because the trial judge failed to articulate the mitigating factors and did not explain why a 90-day intermittent sentence, which was within the Crown's suggested range, was inappropriate.

The sentence was reduced to 90 days to be served intermittently, and probation was reduced to one year.

The Crown appealed a summary conviction acquittal for care or control of a motor vehicle while having a blood alcohol concentration exceeding the legal limit.

The accused had been found seated in the driver’s seat of a running vehicle in a pub parking lot with breath readings of 110 and 100 mg/100 ml.

The trial judge concluded there was no realistic risk of danger and that the accused had rebutted the statutory presumption of care or control based on an alleged alternate plan to obtain a ride.

The appeal court held that the trial judge misapplied the test from R. v. Boudreault by focusing on visible impairment rather than the legal significance of an over‑80 reading and by treating a vague or unimplemented plan as sufficient to rebut the presumption.

The acquittal was set aside and a conviction substituted.