David E. Harris

The appellant appealed his conviction for driving 'over 80'.

At trial, the evidence showed a 33-minute unexplained gap between the conclusion of the appellant's call to duty counsel and the taking of his first breath sample.

The trial judge held this gap did not defeat the 'as soon as practicable' requirement under s. 258(1)(c)(ii) of the Criminal Code.

On appeal, the Superior Court found that because there was no evidence or judicial findings explaining the 33-minute delay—which constituted one-third of the total time from the traffic stop to the first sample—the Crown failed to prove the police acted reasonably and promptly.

The appeal was allowed and an acquittal entered.

The accused, a 21-year-old man, was charged with sexual assault, sexual interference, and breach of recognizance after engaging in sexual activity with a 14-year-old complainant who had a profound intellectual disability.

The court found that the complainant lacked the capacity to consent and that the accused was wilfully blind to her incapacity, failing to take reasonable steps to ascertain consent.

Furthermore, the court rejected the accused's mistake of age defence, finding he ignored obvious warning signs regarding her age and developmental level and failed to take all reasonable steps to ascertain her true age.

The accused was found guilty on all counts.

During a trial for sexual assault and sexual interference, the Crown applied to admit expert evidence from a clinical psychologist regarding the suggestibility and acquiescence to leading questions of the complainant, who suffers from intellectual disabilities.

The court applied the Mohan criteria for the admission of expert evidence, focusing on the necessity requirement.

The court held that the suggestibility of a person functioning at a 4-7 year old cognitive level is a matter of common sense and judicial experience, and therefore expert evidence was not necessary to assist the trier of fact.

The application was dismissed.