Bernard Starkman

The accused was charged with operating a motor vehicle with a blood alcohol concentration exceeding 80 mg in 100 ml of blood.

During the breath testing procedure, the Intoxilyzer 8000C generated an 'ambient fail' message.

The accused argued that the breath technician failed to follow the instrument's manual, meaning the device was 'operated improperly' and the Crown could not rely on the presumption of identity under section 258(1)(c) of the Criminal Code.

The court found that the manual's instructions were not mandatory and that the technician's actions did not call into question the reliability of the breath sample results.

The presumption of identity applied, resulting in a finding of guilt.

The applicant sought exclusion of breath sample evidence on the basis of alleged violations of his Charter rights under sections 7, 8, 9, and 10(b).

The applicant was charged with having an excess blood alcohol concentration while driving after crashing into a tractor trailer on Highway 401.

The court found that while the applicant's section 7 and 8/9 Charter arguments failed, the applicant's section 10(b) right to counsel was violated.

Specifically, the police failed to facilitate the applicant's request to contact a police officer friend who could assist in locating counsel, and the police provided an incomplete explanation of the right to counsel.

The court excluded the breath sample evidence under section 24(2) of the Charter.

The defendant was charged with driving with excess alcohol following a traffic stop on July 9, 2016.

The defendant challenged the officer's reasonable suspicion to demand an Approved Screening Device (ASD) test and argued that the breath tests were not taken as soon as practicable.

The court found that the officer had reasonable suspicion based on observed driving patterns and the defendant's admission of consuming alcohol.

The court also found that the timing of the breath tests complied with statutory requirements, including a reasonable delay for the defendant to speak with duty counsel.

The defendant was found guilty of operating a motor vehicle with a blood alcohol concentration of 140 milligrams of alcohol in 100 millilitres of blood.

The defendant was charged with driving with excess alcohol following a roadside stop on May 25, 2016.

The defendant alleged several Charter breaches and sought to exclude breath test results.

The principal issue was the extent to which police must attempt to facilitate contact with counsel of choice before offering duty counsel as an alternative.

The court found no breach of the defendant's right to counsel under section 10(b) of the Charter, as the defendant had expressed willingness to speak to duty counsel if his preferred counsel could not be reached, and the officer made reasonable efforts to contact the preferred counsel before offering the alternative.

The breath test results were admitted into evidence, and the defendant was found guilty of operating a motor vehicle with a blood alcohol level exceeding the legal limit.

The defendant was charged with operating a motor vehicle with an excess blood alcohol concentration.

The Crown's case relied on breath samples obtained at a police detachment following a roadside approved screening device test.

The defendant challenged the admissibility of the breath samples under sections 8 and 24(2) of the Canadian Charter of Rights and Freedoms, arguing that the Crown failed to establish that the roadside device was an approved screening device due to imprecision in the officer's testimony regarding the device's identification.

The trial judge found that the Crown had proven the device was an approved screening device based on the officer's reference to it as such and the description of its functioning, relying on the Court of Appeal's guidance in R. v. Gundy.

The defendant was found guilty as charged.

The defendant was charged with operating a motor vehicle while impaired by alcohol contrary to s. 253(1)(a) of the Criminal Code, and with operating a motor vehicle with a blood alcohol concentration exceeding 80 mg per 100 mL of blood contrary to s. 253(1)(b).

The Crown called five witnesses including two paramedics who observed erratic driving, the arresting officer, a second officer, and a breath technician.

The defendant conceded the over 80 charge but contested the impaired driving charge.

The court found both charges proved beyond a reasonable doubt based on cumulative evidence including observations of erratic driving, near-accident involvement, physical signs of impairment, and breath test results.

The defendant brought a section 11(b) Charter application seeking a stay of proceedings for unreasonable delay in trial.

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

The court applied the new framework established in R. v. Jordan, 2016 SCC 27, which sets a presumptive ceiling of 18 months from charge to anticipated end of trial in provincial court.

The overall delay was calculated at 18 months and 21 days, but after deducting approximately 3 months and 8 days of defence delay, the net delay was 15 months and 13 days, falling below the ceiling.

The court found the defence had not demonstrated meaningful steps to expedite proceedings and that the case had not taken markedly longer than reasonably required.

The application was dismissed.

The defendant was charged with impaired driving and exceeding 80 mg of alcohol per 100 ml of blood, with an offence date of September 27, 2015.

The Crown's case was overwhelming.

The primary issue was whether in-court identification of the defendant by Crown witnesses was necessary to prove identity beyond a reasonable doubt.

The court found that while no Crown witness explicitly pointed out the defendant in court, identification could be established through three alternative routes: video evidence of the defendant during breath testing procedures, the "circle" of continuity from arrest through release to court appearance, and evidence of name and address identifiers.

The court found the defendant guilty of both offences and conditionally stayed the exceed 80 charge.

Sentencing was adjourned to November 18, 2016, with the court indicating that all sentencing options, including jail, would be considered given the aggravating circumstances.

The accused was charged with impaired operation of a motor vehicle and over 80 in August 2014.

The trial was scheduled for November 2016, over two years after the charge was laid.

The accused brought a motion for a stay of proceedings based on a breach of the right to be tried within a reasonable time under section 11(b) of the Canadian Charter of Rights and Freedoms.

The court applied the newly released framework from R. v. Jordan, which established an 18-month ceiling for cases tried without a preliminary inquiry.

The court found that while the delay was approximately 18 months (or 13-14 months excluding certain periods), the case presented exceptional circumstances warranting a flexible and contextual approach.

The court granted the stay, finding that the delay was markedly longer than reasonable given the circumstances and the reliance on the former law.

The applicant brought a motion to stay proceedings on the grounds that his right to be tried within a reasonable time under section 11(b) of the Canadian Charter of Rights and Freedoms had been breached.

The applicant was arrested for impaired driving (over 80) in November 2014, with the Information sworn in December 2014.

A trial date was initially set for December 9, 2015, but was adjourned due to late disclosure issues.

The trial ultimately proceeded on June 22-23, 2016, with the 11(b) application heard on July 18, 2016.

The court applied the new framework established in R. v. Jordan and found that the total delay of 19 months and 24 days exceeded the presumptive 18-month ceiling for provincial court trials.

The court found no exceptional circumstances to rebut the presumption of unreasonableness and granted the stay of proceedings.

The accused, a police officer and qualified breath technician, was charged with impaired operation of a motor vehicle and operating a motor vehicle with more than 80 mg of alcohol in 100 ml of blood following a collision with a parked pickup truck.

The accused fled the scene and attempted to obstruct justice by having his wife falsely claim she was the driver.

The Crown relied on expert toxicological evidence to "read back" breath test results to the time of the collision, as the presumption of identity was unavailable due to the delay in testing.

The accused claimed bolus drinking and that distracted driving, not impairment, caused the collision.

The court rejected the accused's testimony as incredible and unreliable, found the Crown proved the absence of bolus drinking beyond a reasonable doubt, and convicted on both charges based on the expert evidence and the accused's own admissions regarding his impaired judgment and decision-making.

The accused was charged with failing to comply with an approved screening device (ASD) demand contrary to section 254(2) of the Criminal Code.

The Crown proceeded summarily.

The court found that the accused unequivocally refused to provide a breath sample after six feigned attempts and multiple warnings that he would be arrested for failing to provide a suitable sample.

The accused's claim that he requested another opportunity to blow after his arrest was rejected.

The court held that even if such a request had been made, the police are not obliged to provide post-arrest opportunities to provide a sample.

The accused was found guilty.

The accused was charged with operating a motor vehicle with a blood alcohol concentration exceeding 80 milligrams per 100 millilitres of blood contrary to section 253(1)(b) of the Criminal Code.

The accused challenged the admissibility of statements made to police at the accident scene, arguing they were statutorily compelled under the Highway Traffic Act and therefore inadmissible as a violation of the right to remain silent under section 7 of the Charter.

The court found that the accused failed to establish on a balance of probabilities that he held an honest and reasonably held belief that he was required by law to report the accident.

The accused's testimony regarding his knowledge of the Highway Traffic Act was found to be not credible, and his statements were therefore admitted into evidence.

The accused was charged with impaired operation, excess alcohol, and possession of cocaine following a motor vehicle accident.

The Crown's case relied on circumstantial evidence to establish that the accused was the driver.

The court found that while the accused exhibited clear signs of impairment, the Crown failed to prove beyond a reasonable doubt that the accused was driving the vehicle or in care and control of it.

The accused was found 30 feet from the disabled vehicle when police arrived, with no direct evidence of driving or occupancy of the driver's seat.

The court applied the three-pathway test for care and control and found that the Crown had not established a realistic risk of danger as required.

The accused was acquitted of the driving charges but convicted of cocaine possession, as the arrest was found to be lawful based on reasonable and probable grounds.

The applicant was charged with operating a motor vehicle while the concentration of alcohol in his blood exceeded the legal limit on December 18, 2013.

His trial was scheduled for February 24, 2015, approximately 14 months after the charge.

The applicant brought a motion for a stay of proceedings alleging a violation of his right to a trial within a reasonable time under s. 11(b) of the Canadian Charter of Rights and Freedoms.

The court found that while the overall institutional delay exceeded the applicable guidelines of 8-10 months, the applicant had suffered actual prejudice and the case was not complex.

The court granted the application and stayed the proceedings.

The accused was charged with operating a motor vehicle with a blood alcohol concentration exceeding 80 mg per 100 mL of blood, impaired driving, and dangerous driving.

The Crown relied on expert toxicology evidence to establish the over 80 charge.

The central issue was whether the Crown proved the assumption of no significant consumption of alcohol immediately prior to or during the time of driving.

The court found the over 80 charge proven beyond a reasonable doubt but acquitted on the impaired driving and dangerous driving charges due to insufficient evidence of impairment of ability to operate the vehicle and lack of proof of a marked departure from the standard of care.

The accused was charged with driving with excess alcohol (over 80 mg%) following a traffic stop on Super Bowl Sunday 2014.

The sole issue at trial was whether the breath technician's failure to perform a stand-alone self-test, as recommended by the Centre of Forensic Sciences manual, created a reasonable doubt about the reliability of the breathalyzer results.

The court found that deviation from recommended procedures does not automatically raise a reasonable doubt about reliability, particularly where the deviation is of no consequence.

The technician's evidence that he operated the instrument according to his training and manufacturer specifications was accepted.

A conviction was entered, followed by sentencing to the minimum mandatory penalties.

The accused was charged with care and control while being over 80 milligrams of alcohol per 100 millilitres of blood.

The central issue was whether the Crown proved that breath samples were received directly into an approved instrument as required by section 258(1)(c)(iii) of the Criminal Code.

The qualified technician testified that the accused provided breath samples into the instrument, but did not explicitly testify that the samples were received directly into the instrument.

The court found that the evidence was insufficient to establish this critical requirement beyond a reasonable doubt and acquitted the accused, holding that judicial notice cannot be used to supply this proof and that the liberty interest of the accused requires strict interpretation of the statutory requirement.

The accused was charged with operating a motor vehicle while impaired by alcohol and while his blood alcohol level exceeded the legal limit, contrary to sections 253(1)(a) and 253(1)(b) of the Criminal Code.

The trial commenced on January 13, 2014, and continued on April 16, 2014.

The accused brought a section 11(b) Charter application alleging a violation of his right to be tried within a reasonable time.

The court dismissed the application, finding that while the total delay exceeded two years, only slightly more than nine months resulted from institutional or Crown delay, which fell within the Morin guidelines for the jurisdiction.

The court found that the defence was responsible for a fair amount of early delay, and while the accused suffered some prejudice in the form of stress and anxiety, this was insufficient to warrant a stay of proceedings.

The accused was charged with "Over 80" (driving with a blood alcohol concentration between 80 and 100 mg%) on November 28, 2012.

He brought a motion for a stay of proceedings alleging a violation of his right to be tried within a reasonable time under section 11(b) of the Canadian Charter of Rights and Freedoms.

The case had been set for trial twice and adjourned on both occasions without prior notice.

The court found that the accused had suffered actual prejudice in the form of increased legal fees and mounting stress and anxiety due to the adjournments.

The court determined that the total actionable delay was 10.5 months, which exceeded both the Morin guidelines and local guidelines for Brampton.

The court granted the stay of proceedings, finding that the accused's right to trial within a reasonable time had been violated and that society's interest in treating the accused fairly outweighed its interest in having the matter decided on the merits.