David Gomes

Scott Lombardi appealed his conviction for "over 80" under the Criminal Code, raising two grounds: denial of his Charter right to counsel and the Crown's failure to prove the accuracy of breath samples beyond a reasonable doubt.

The trial judge had dismissed the Charter application, finding that Lombardi's right to counsel was not breached as he had consulted Duty Counsel and declined further specific counsel despite being given reasonable opportunities.

On the second ground, the trial judge found the accuracy of the breath samples proven under the common law doctrine of scientific instruments, as the statutory presumption was not relied upon.

The Superior Court of Justice dismissed the appeal, upholding the trial judge's findings on both grounds, concluding that Lombardi's right to counsel was not violated and that the breath sample accuracy was adequately established.

The accused was charged with impaired driving and refusing to provide a breath sample.

The Crown proved both charges beyond a reasonable doubt.

The accused contested the substance of both charges and brought multiple Charter motions challenging the reasonable and probable grounds for the breath demand, alleging a change in jeopardy requiring a second consultation with counsel, and arguing the refusal was incomplete due to lack of opportunity to consult counsel.

The court rejected all Charter arguments and found the accused guilty on both counts.

The accused was charged with operation of a motor vehicle with over 80 mg of alcohol per hundred milliliters of blood following an incident in North Bay, Ontario on December 15, 2017.

A blended trial and Charter application were held.

The defence abandoned its Charter arguments and proceeded solely on the submission that the Crown failed to prove beyond a reasonable doubt that breath samples were taken as soon as practicable as required by the Criminal Code.

The court found a significant unexplained delay of 58 minutes between arrival at the detachment and the accused being turned over to the breath technician, and a lack of evidence explaining the circumstances of this delay.

The court concluded it could not determine whether the tests were taken as soon as practicable in all circumstances and therefore the statutory presumption could not apply.

The charge was dismissed.

The defendant was charged with impaired driving and driving with excess blood alcohol following a minor collision at a coffee shop.

The Crown proceeded on the excess alcohol charge.

The court addressed two key issues: whether the first breath test was taken within two hours of the incident to satisfy the statutory presumption of identity under section 258(1)(c) of the Criminal Code, and whether the defendant's Charter rights to counsel were breached.

On the first issue, the court found that based on the totality of evidence and applying common sense, the collision occurred approximately 1.5 hours before the breath test, satisfying the two-hour requirement.

On the second issue, the court rejected the defendant's claim that his rights to counsel were violated, finding that the police provided adequate information regarding his right to counsel and that the defendant failed to communicate any desire to speak with a lawyer other than duty counsel.

The defendant was found guilty.

The defendant was charged with impaired driving and driving with a blood alcohol content over 80 mg%.

The case was defended solely on Charter grounds, specifically alleging breaches of the right to counsel under section 10(b) of the Canadian Charter of Rights and Freedoms.

The Crown alleged the defendant was found driving in a CN railroad yard at approximately 2:50 am and displayed signs of impairment.

The defendant requested counsel of choice but police were unable to reach the lawyer after leaving messages.

The court found no Charter breach and admitted the breath test results, finding the defendant guilty on both charges.

The accused was stopped at a mobile RIDE check, failed two Approved Screening Device tests, and was charged with driving with a blood alcohol concentration in excess of the legal limit.

The defence raised five Charter issues: whether the officer had reasonable suspicion for the ASD demand based on odour of alcohol; whether an informal demand satisfied s. 254(2); whether the officer's failure to wait the full 15 minutes before the second ASD test was objectively unreasonable; whether s. 10(b) requires expanded information about accessing private counsel; and whether the officer undermined solicitor-client privilege by referring to legal advice during the Approved Instrument demand.

The court dismissed all Charter applications and found the Crown proved the elements of the offence beyond a reasonable doubt.

The Crown charged the defendant with impaired driving and refusing to provide a breath sample following observations by a civilian witness of erratic driving on January 26, 2013.

The defendant admitted to the impaired state but claimed it was caused by doubling his prescribed dose of Celexa (citalopram), an antidepressant medication, combined with consuming only a few beers the evening before.

The court rejected the defendant's evidence regarding minimal alcohol consumption, finding that his admissions of being drunk, physical signs of impairment (red eyes, slurred speech, unsteadiness), the consistent smell of alcohol detected by multiple officers, and the nature of his driving were all consistent with alcohol impairment.

The court also rejected the defendant's claim that he lacked mens rea for the refusal charge, finding that his words of refusal were clearly spoken and intentional.

The defendant was convicted on both charges.

The defendant was charged with impaired driving and driving with excess alcohol following a traffic stop.

The defendant challenged the arrest on the grounds that the officer lacked reasonable and probable grounds and that his Charter rights to counsel were breached due to his status as a non-native English speaker.

The court found that the officer had reasonable and probable grounds based on the totality of observations including erratic driving, signs of impairment, and admission of alcohol consumption.

The court also found no breach of the right to counsel, determining that the defendant had adequate English proficiency and was properly informed of his options.

The defendant was convicted of both offences.

The Crown appealed a stay of proceedings granted by the trial judge on charges of impaired driving and 'over 80'.

The trial judge had found that the institutional delay of 11.5 months exceeded the Morin guidelines and breached the respondent's right to a trial within a reasonable time under s. 11(b) of the Charter.

On appeal, the Superior Court found that the trial judge erred by characterizing neutral delay as institutional, reducing the actual institutional delay to 9 months, which falls within the guidelines.

The court also found the trial judge erred by failing to balance society's interest in a trial on the merits against the right to a trial within a reasonable time.

The appeal was allowed and a new trial ordered.

The accused was charged with driving with a blood-alcohol level exceeding 80 mg per 100 ml of blood.

The central issue was whether a valid approved instrument demand was made by the arresting officer.

The officer inadvertently read the wrong breath demand—repeating the approved screening device demand instead of making the approved instrument demand.

Although the accused pointed out the error and the officer provided a loose explanation about going to the police station for a numerical reading, the court found this explanation insufficient to constitute a valid approved instrument demand.

The court applied strict compliance principles and dismissed the charge due to the inadmissibility of the Certificate of Analysis.

The accused was charged with impaired driving after being found asleep in the driver's seat of his vehicle at a traffic light.

The Crown relied on observations made by the arresting officer at the roadside, including the smell of alcohol, red eyes, slurred speech, and unsteadiness.

However, observations made at the police station approximately 23-25 minutes later showed no signs of impairment, and the breath technician's observations approximately 1 hour and 23 minutes later similarly showed no impairment indicators except for watery, red-rimmed eyes.

The court found a reasonable doubt as to whether the accused's ability to drive was impaired by alcohol, noting that the discrepancy between roadside and station observations, combined with the absence of any evidence of actual vehicle operation, created reasonable doubt.

The court concluded that the symptoms observed at the roadside could have been attributable to extreme tiredness rather than alcohol impairment.

The appellant appealed convictions for operating a motor vehicle with a blood alcohol concentration over 80 mg and impaired operation.

The central issue was whether the trial judge materially misapprehended the evidence regarding the time of driving, which was critical to the Crown’s toxicological “read‑back” evidence.

The appellate court found there was no evidentiary basis to conclude the accident occurred no earlier than 2:30 a.m., and that the trial judge improperly inferred this timing from an absence of evidence.

Because the Crown’s expert evidence depended on that assumption, the misapprehension undermined the convictions.

The appeal was allowed and acquittals entered.

The defendant was charged with operating a motor vehicle while impaired by alcohol and operating a motor vehicle with a blood alcohol concentration exceeding the legal limit, following a rear-end collision in Toronto.

The Crown relied on breath test results and expert toxicology evidence.

The defence advanced Charter applications challenging the lawfulness of the breath demand, the adequacy of the right to counsel advisement, and the reliability of the expert evidence.

The court found the breath demand lawful, admitted the breath test evidence despite a s. 10(b) breach, and convicted the defendant on both charges based on the expert evidence establishing impairment and excessive BAC at the time of driving.

The defendant was charged with refusing to provide a sample of his breath into an approved screening device (ASD) on June 4, 2012.

A police officer conducting a RIDE spot-check observed signs of impairment and made a lawful demand under s. 254(2) of the Criminal Code.

The defendant refused to comply.

The main issue was whether the officer's failure to provide complete information about the consequences of non-compliance affected the validity of the demand or provided a reasonable excuse for the refusal.

The court found that the defendant's refusal was intentional and voluntary, and that neither the Criminal Code nor common law requires police to provide complete information about consequences.

The defendant was found guilty.

The defendant was charged with operating a motor vehicle with a blood alcohol concentration exceeding 80 milligrams per 100 millilitres of blood, contrary to the Criminal Code.

The Crown alleged the defendant was stopped for speeding and subsequently failed an approved screening device test and provided breath samples over the legal limit.

The defendant raised Charter arguments regarding his right to counsel and advanced a bolus drinking defence.

The court found no Charter breach, rejected the bolus drinking defence based on the defendant's lack of credibility, and convicted the defendant of the over 80 charge.

The defendant also pleaded guilty to two Provincial Offences Act charges (speeding and driver having alcohol readily available), with sentencing suspended on those counts.

Following a successful appeal overturning the dismissal of an action and awarding damages for false arrest and trespass, the court was tasked with determining trial costs payable by one defendant.

The successful plaintiffs sought full or substantial indemnity costs exceeding $400,000, arguing the litigation raised issues of public importance and that the defendant advanced meritless positions.

The defendant argued the claim was disproportionate to the modest damages award and that much of the trial addressed unsuccessful allegations including conspiracy and punitive damages.

Applying s.131 of the Courts of Justice Act and Rule 57.01 of the Rules of Civil Procedure, the court emphasized proportionality, the conduct of the parties, and the reasonable expectations of the losing party.

Costs were awarded on a partial indemnity basis in a reduced amount reflecting the complexity and importance of the issues while accounting for excessive litigation steps.