A. Rajna

The appellant appealed his convictions for impaired driving and refusing to provide a breath sample.

He argued the trial judge erred by admitting a video of his interaction with the breath technician who was unavailable to testify, finding no breach of his s. 10(b) Charter right to counsel, and rejecting his defence that his autism spectrum disorder provided a reasonable excuse for refusing the breath demand.

The Superior Court of Justice dismissed the appeal, finding the video was admissible as direct evidence, the appellant failed to exercise due diligence in contacting counsel, and the trial judge's findings on impairment and lack of reasonable excuse were supported by the evidence.

The appellant appealed convictions for two counts of sexual assault contrary to s. 271 of the Criminal Code.

He argued that the trial judge applied different standards of scrutiny to the evidence of the complainant and the accused, and that the judge misapprehended the evidence.

The appeal court rejected the argument regarding differential scrutiny but found that the trial judge made a material misapprehension of evidence by concluding that the complainant testified she did not consent, when no such testimony was given.

Because lack of consent is an essential element of sexual assault and the trial judge relied on the mistaken belief that direct testimony established that element, the error was both palpable and overriding.

The convictions were set aside and a new trial ordered.

The accused pleaded guilty to dangerous driving causing death and to refusing to provide a breath sample after a motor vehicle collision that killed a child passenger.

The collision occurred when the accused drove through a stop sign at excessive speed and struck another vehicle lawfully proceeding through the intersection.

Although alcohol had been consumed prior to the collision, the impaired driving causing death charge was withdrawn as part of a joint submission.

The court reviewed sentencing ranges for dangerous driving causing death and emphasized the high threshold for rejecting a joint submission.

Finding the proposed disposition within the reasonable range and not contrary to the public interest, the court imposed a penitentiary sentence totaling 27 months and a four‑year driving prohibition.

The accused applied for a bail review under s. 520(1) of the Criminal Code after being denied interim release on charges related to a sophisticated car theft enterprise.

The Crown conceded a material change in circumstances as drug charges were withdrawn, shifting the onus to the Crown to justify detention on the secondary ground.

The accused proposed a new release plan involving his mother as surety with an increased monetary pledge and electronic monitoring.

The court found the mother lacked effective control over the accused and that electronic monitoring was insufficient to mitigate the substantial risk of the accused committing further offences.

The application for release was dismissed.

The accused brought a pre‑trial application seeking exclusion of evidence relating to firing‑pin indentations on three cartridges recovered from the scene of an alleged robbery and attempted murder.

Police had test‑fired two of the cartridges during the investigation, which obliterated the original firing‑pin impressions and prevented later forensic comparison with a handgun recovered a year later.

The accused argued that the loss of the original impressions constituted unacceptable negligence and breached their right to make full answer and defence under s. 7 of the Charter, warranting exclusion of the evidence.

The court found that the police conduct amounted to unacceptable negligence and therefore constituted a breach of s. 7.

However, the court held that exclusion of the evidence was not an appropriate remedy because the potential prejudice was speculative and could be addressed through cross‑examination and a jury instruction regarding the Crown’s failure to preserve evidence.

The defendants, charged with aggravated sexual assault for allegedly failing to disclose their HIV-positive status before engaging in consensual sexual acts with the complainants, brought a pre-trial application under section 276 of the Criminal Code.

They sought to cross-examine the complainants on their prior sexual activity, including casual and group sex, to challenge their credibility and their assertion that they would not have consented had they known of the defendants' HIV status.

The court granted the application, finding the proposed evidence highly relevant to the issue of whether consent was vitiated by fraud, and concluded its probative value outweighed any potential prejudice to the administration of justice.

In a pre-trial motion for charges of aggravated sexual assault related to HIV non-disclosure, the court assessed the admissibility of the accused's police statement.

The court found several issues with the police conduct, including a missing minute of video recording, improper communication between officers, and failure to provide sufficient information regarding outstanding warrants before the accused waived his right to counsel.

Crucially, police breached a remand warrant by returning the accused to the police station instead of a detention centre.

The court ruled the statement inadmissible, finding the Crown failed to prove voluntariness.