David Friesen

The accused were separately convicted of driving 'over 80'.

In both cases, the trial judge found the arresting officer lacked reasonable and probable grounds for the breathalyzer demand, but allowed the Crown to rely on the presumption of identity in s. 258(1)(c) of the Criminal Code because the accused did not bring a Charter application.

The summary conviction appeal court quashed the convictions, holding that a 'demand' under s. 258(1)(c) must be a valid demand made on reasonable and probable grounds.

The Court of Appeal allowed the Crown's appeals and restored the convictions, holding that under R. v. Rilling, the Crown need not prove reasonable and probable grounds to rely on the presumption of identity unless the accused brings a Charter application.

The Crown appealed a Summary Conviction Appeal Judge's decision that overturned the accused's conviction for driving 'over 80'.

The Court of Appeal allowed the appeal and restored the conviction.

The Court held that the appeal judge erred in finding that an officer could not form the requisite suspicion for a roadside breath demand under s. 254(2) of the Criminal Code based on the smell of alcohol on a driver's breath, affirming R. v. Lindsay.

Furthermore, the trial judge correctly applied the W.D. test by concluding that the accused's 'evidence to the contrary' did not raise a reasonable doubt.

The Crown sought leave to appeal a summary conviction appeal decision that overturned the respondent's conviction.

The Court of Appeal denied leave to appeal, citing the very lengthy delay in perfecting the appeal and the significant prejudice the respondent had endured over a lengthy period of time.

The applicant was arrested for impaired driving and, upon speaking with duty counsel, was advised to refuse to provide a breath sample.

He followed this advice and was charged with refusing to comply with a breathalyzer demand.

At trial, he sought a stay of proceedings based on the defence of officially induced error.

The trial judge and summary conviction appeal court held that the defence was unavailable because duty counsel is not a government official.

The applicant sought leave to appeal to the Court of Appeal.

The Court of Appeal denied leave, confirming that duty counsel does not speak on behalf of the state and is not a government official for the purposes of the officially induced error defence.

The appellant appealed his convictions for sexual assault, sexual exploitation, assault with a weapon, assault, unlawful confinement, and uttering a death threat against a 12-year-old complainant.

The Crown cross-appealed the conditional sentence of two years less a day.

The Court of Appeal dismissed the conviction appeal, finding the trial judge did not err in his treatment of prior consistent statements, the reasons were adequate, and inconsistencies were properly addressed.

The Court allowed the Crown's sentence appeal, finding the conditional sentence illegal under the Fice principle and manifestly unfit given the gravity of the offences, substituting a sentence of 3.5 years' imprisonment.

The Crown appealed an acquittal entered after the trial judge granted a motion for a directed verdict.

The Court of Appeal held that the identity of names between the person the complainant identified as her assailant and the accused constituted some evidence on the issue of identity.

The appeal was allowed, the directed verdict set aside, and a new trial ordered.

The appellant appealed his convictions for possession of a firearm while prohibited and breach of probation.

He argued he was arbitrarily detained and searched, and that the unloaded sawed-off rifle found on him should be excluded under s. 24(2) of the Charter.

The Court of Appeal assumed an arbitrary detention occurred but held the evidence should not be excluded, finding the police acted in good faith in a high-crime area and the admission of the evidence would not bring the administration of justice into disrepute.

The appeal was dismissed.

The appellant pleaded guilty to firearm possession offences.

The Crown and defence made a joint submission for a sentence of time served (11 months).

The sentencing judge rejected the joint submission and imposed an additional nine months of incarceration.

On appeal, the Court of Appeal found the sentencing judge erred in principle by failing to explain why the joint submission was contrary to the public interest or would bring the administration of justice into disrepute, and by not affording counsel an opportunity to make further submissions.

The appeal was allowed and the sentence reduced to time served.