Brian E. Starkman

This decision addresses the burden of proof for the statutory defence of "reasonable excuse" under s.320.16 of the Criminal Code, following a jury conviction for dangerous driving causing bodily harm and failure to stop after an accident.

The Crown argued the accused bore the persuasive burden, while the defence contended it was merely an evidential burden, with the Crown bearing the ultimate persuasive burden.

The court ruled that the Crown bears the ultimate persuasive burden of disproving the existence of a reasonable excuse beyond a reasonable doubt, finding that Parliament intended to remove the reverse onus with the repeal of s.794(2) of the Criminal Code.

The defendant, Brendan Hamilton, was tried on two alcohol-related charges: impaired driving and driving with excess blood alcohol concentration, stemming from a single-car collision.

The court found the defendant guilty of impaired driving, concluding that his ability to drive was impaired by alcohol based on the totality of the evidence.

For the excess blood alcohol charge, the defendant argued his section 10(b) Charter right to counsel was violated due to police failing to properly facilitate access to private counsel and infringing on his privacy during a call with duty counsel.

The court dismissed the Charter application, finding that the police made reasonable efforts to facilitate counsel and provided the best possible privacy in the hospital setting, and therefore, the breath test results were admissible.

The defendant was tried on one criminal charge (driving with excess blood alcohol) and two provincial charges (speeding, driving with two licenses).

The court found the defendant guilty of the provincial offences.

For the criminal charge, the issues were the validity of the roadside screening test and breath demand under section 8 of the Charter, and whether breath test procedures established blood alcohol concentration beyond a reasonable doubt under section 320.31(1) of the Criminal Code.

The court found no Charter breach, determining the officer's belief in the screening test's accuracy was reasonable.

Despite discrepancies in the qualified technician's testimony regarding alcohol concentration units and a blank test result, the court preferred the Certificate of Qualified Technician, concluding the discrepancies did not raise a reasonable doubt.

The defendant was found guilty of all charges.

The plaintiffs sued the defendants for supplying inferior limestone, alleging breach of contract.

The key issue in the lawsuit was the nature of the limestone, requiring an inspection by the defendants' expert.

Despite multiple court orders from a Master and a Superior Court judge, and the dismissal of frivolous appeals, the plaintiffs repeatedly obstructed the defendants' attempts to conduct the necessary inspection and failed to pay costs orders.

The defendants brought a motion to dismiss the action due to the plaintiffs' persistent non-compliance with interlocutory orders and abuse of process.

The court granted the motion, dismissing the action under Rule 60.12(b), finding that the plaintiffs had no intention of permitting the essential inspection and were abusing the court's process.

The defendant was charged with impaired driving and driving with excess blood alcohol concentration after his vehicle went into a ditch on Highway 109.

The Crown relied on eyewitness testimony, paramedic observations, police observations, and a toxicology report.

The defendant challenged the identification evidence, the lawfulness of the breath demand, and the reliability of the toxicology report.

The court found the defendant was the driver, the breath demand was lawful, and the toxicology report was admissible.

However, the court found the eyewitness evidence insufficient to prove impairment beyond a reasonable doubt on its own.

The toxicology report established impairment based on blood alcohol concentration of 125-185 mg/100mL.

The defendant was convicted on both counts.

The accused was charged with failing or refusing to supply a breath sample contrary to section 254(2) of the Criminal Code following a motor vehicle stop on June 3, 2016.

The Crown alleged the accused willfully failed to provide a suitable breath sample after more than 20 attempts over three breath sequences.

The defence raised three issues: whether the Crown proved willful failure beyond a reasonable doubt, whether the arresting officer had reasonable and probable grounds to make the breath demand, and the consequences of two breath demands.

The court found the Crown proved each element of the offence beyond a reasonable doubt and convicted the accused.

The defendant was charged with impaired driving and driving with excess blood alcohol following a traffic stop in the early morning hours.

The Crown presented evidence from two police officers regarding observations of impairment at the roadside and at the police station.

The defence challenged the lawfulness of the breath demand and argued the evidence of impairment was insufficient to prove guilt beyond a reasonable doubt.

The court found that the police officer had reasonable grounds to make the breath demand and that the totality of evidence, including the defendant's own admission of slight impairment, established guilt on both counts beyond a reasonable doubt.

The accused was charged with operating a motor vehicle with a blood alcohol level over 80 milligrams per 100 millilitres of blood.

A Charter motion was heard and blended with the trial.

The defence raised six alleged Charter violations: (1) that the officer making the ASD demand lacked grounds; (2) that there was a violation of the right to counsel at roadside; (3) that the delay between suspicion and demand violated the "forthwith" requirement; (4) that there was no evidence the device was an approved screening device; (5) that the officer failed to verify calibration; and (6) that the breath tests were not taken as soon as practicable.

The court rejected all Charter violation arguments and found the accused guilty.

The accused was charged with driving a motor vehicle with over 80 milligrams of alcohol per 100 millilitres of blood contrary to Section 253(1)(b) of the Criminal Code.

The Crown withdrew the impaired driving charge and proceeded on the over .08 charge only.

Following a trial, the court found that the Crown proved all elements of the offence beyond a reasonable doubt.

The accused was convicted of driving over .08.

At a preliminary inquiry, the accused was charged with five offences relating to human trafficking and prostitution involving a single adult victim.

The Crown alleged the accused recruited and transported the victim from Ontario to Calgary for the purpose of exploitation, received material benefits from prostitution, exercised control over the victim's movements, and procured her as a prostitute.

The accused was discharged on the threat charge due to lack of evidence.

The court found insufficient evidence of an exploitative purpose under the Criminal Code definition to commit on the human trafficking and material benefit charges.

The accused was committed to trial on the remaining two charges (exercising control and procuring).

The court determined that the trial should proceed in Thunder Bay rather than Toronto, as the substantive offences occurred primarily in Alberta with only incidental conduct in Ontario.

The accused was charged with operating a motor vehicle while his blood alcohol concentration exceeded 80 mg of alcohol in 100 mL of blood contrary to section 253(1)(b) of the Criminal Code.

The defence raised two issues: first, that the breath demand used the singular "sample" rather than the plural "samples," and therefore only one sample could be obtained; and second, that an initial calibration check on the Intoxilyzer showed a reading outside the approved tolerance, indicating machine malfunction or operator error.

The court rejected both arguments, finding that the demand was substantially compliant with statutory requirements and that the anomalous calibration reading did not tend to show malfunction given multiple satisfactory calibration checks before, during, and after the breath tests.

The accused was found guilty.

The accused was charged with impaired driving and driving with more than 80 milligrams of alcohol in his system.

The trial judge acquitted on the impaired charge but reserved judgment on the over 80 charge due to a defence argument regarding the failure of the breath technician to perform a self-test on the Intoxilyzer 8000C machine.

The court examined whether deviation from the Centre of Forensic Science training manual recommendations regarding self-tests created reasonable doubt about the machine's proper operation.

The court found that the machine's internal self-diagnostic tests were sufficient to establish proper working order and that the failure to perform a manual self-test did not raise a reasonable doubt.

The accused was convicted on the over 80 charge.

The accused was charged with operating a motor vehicle with a blood alcohol concentration exceeding 80 milligrams per 100 millilitres of blood.

The defence brought an application alleging breaches of the accused's Charter rights under sections 8 and 10(b).

The court found that the officer lacked reasonable suspicion to demand an approved screening device test, constituting a violation of section 8.

Additionally, the court found a breach of section 10(b) rights to counsel, as the accused clearly expressed dissatisfaction with duty counsel but the officers failed to provide a meaningful opportunity to consult with alternative counsel.

Under section 24(2) analysis, the court excluded the breath test evidence due to the seriousness of the police conduct, the significant impact on the accused's Charter-protected interests, and the minimal nature of the offence.

The charge was dismissed.

The accused was charged with having care or control of a motor vehicle while impaired by a drug contrary to section 253(1)(a) of the Criminal Code.

The accused was found asleep in the driver's seat of his running vehicle during rush hour traffic.

He admitted to smoking a substance he believed to be marijuana approximately 30 minutes before being found.

The Crown could not prove beyond a reasonable doubt that the substance was marijuana, but argued the charge was proven as the accused consumed an unidentified drug.

The court found the accused guilty, holding that the accused voluntarily consumed a substance he knew to be a drug with intoxicating effects, and his subsequent decision to drive constituted recklessness sufficient to establish the requisite mens rea, regardless of whether the substance was the specific drug he believed he was consuming.