David R. Parke

The defendant was charged with impaired operation of a motor vehicle causing death, dangerous driving causing death, and operating a motor vehicle with a blood-alcohol concentration over 80 mg/100 mL causing death.

The charges arose from a fatal collision on Major Mackenzie Drive in Markham, Ontario on September 14, 2022, in which the defendant's vehicle crossed the centre line and struck an oncoming vehicle driven by an off-duty police officer, resulting in the officer's death.

The court found the defendant guilty on all counts.

The court rejected the defence argument that falling asleep at the wheel provides an absolute defence to dangerous driving, finding instead that the defendant's decision to drive while tired and under the influence of alcohol constituted a marked departure from the standard of care.

The court also found that the defendant's ability to drive was impaired by alcohol to any degree, satisfying the test for impaired driving.

The blood-alcohol analysis showing 80 mg/100 mL was admitted under the presumption of accuracy.

The appellant, Yuliya Gavrylyuk, appealed her conviction for refusing to provide a breath sample, arguing that a second breath technician video was disclosed late and that the trial judge erred in credibility findings and mens rea application.

The Superior Court dismissed the fresh evidence application, finding it lacked cogency and due diligence, as the video was previously disclosed and counsel made a tactical decision not to use it.

The court also upheld the trial judge's findings on the lawfulness of the breath demand and the appellant's deliberate refusal, affirming the mens rea standard for refusal.

Davison Weir pleaded guilty to three counts of dangerous driving causing bodily harm.

The Crown sought a 30-month jail sentence, while the defence requested a conditional sentence.

The court found the offences exceptionally serious due to extreme speed in a residential area, resulting in severe, life-threatening injuries to two children and serious injuries to another driver.

Despite mitigating factors such as a guilty plea, genuine remorse, and good character, the court emphasized that denunciation and deterrence were paramount.

A conditional sentence was deemed disproportionately lenient given the intentional risk-taking and degree of responsibility.

The court imposed a sentence of 12 months imprisonment, followed by 2 years of probation, a 4-year driving prohibition, and victim surcharges.

Kurlan Cadet pleaded guilty to two counts of impaired driving causing bodily harm, contrary to section 320.14(1)(c) of the Criminal Code, after operating a vehicle with a blood-drug concentration exceeding the legal limit, resulting in serious injuries to his son and another passenger.

The Crown sought two years' incarceration, while the defence sought a conditional sentence.

The court, balancing general deterrence and denunciation with the offender's significant mitigating factors and collateral consequences (including his own severe injuries and the impact on his son), imposed a two-year conditional sentence with strict house arrest, GPS monitoring, and a five-year driving prohibition, followed by one year of probation.

The court emphasized that this was an exceptional case justifying a sentence outside the normal range to achieve restorative justice.

Ryan James Ruznisky pleaded guilty to operating a motor vehicle while impaired by alcohol, his fourth such conviction.

The court considered aggravating factors including a high blood alcohol content (207-242 mg/100mL), high speed, and collision with a residence, and mitigating factors such as his genuine remorse, significant efforts at rehabilitation for long-standing substance abuse, and a history of childhood sexual abuse.

The Crown sought six months imprisonment, while the defence sought the mandatory minimum of 120 days.

The court imposed a sentence of 120 days imprisonment, a three-year driving prohibition, and 18 months probation with a counselling requirement, emphasizing the principle of restraint and the offender's rehabilitative progress.

The applicant, charged with impaired driving causing bodily harm, sought to exclude blood analysis results and medical records obtained via search warrant and production order.

The applicant argued insufficient grounds for the authorizations and an unreasonable manner of search, specifically that the police tested for drugs (THC) when the warrant only specified alcohol.

The court found the authorizations facially valid and the manner of search reasonable, given the broad interpretation of "evidence with respect to the commission of an offence" under the Criminal Code and the specific provisions for testing blood in driving offences.

The application to exclude evidence was dismissed.

The defendant was convicted of two counts of causing an accident resulting in bodily harm while having a blood alcohol concentration over 80.

The court considered sentencing principles, including denunciation and general deterrence, and the severe, life-changing injuries sustained by the two victims.

Despite mitigating factors such as genuine remorse and rehabilitation efforts, the court found that an intermittent sentence was insufficient.

The final sentence was 15 months incarceration, three years probation, and a three-year driving prohibition, aligning with the Crown's recommendation due to the judge's self-imposed restriction on exceeding the Crown's position without further submissions.

Vanessa Porchetta appealed her conviction for driving with over 80 mg of alcohol, arguing breaches of her s. 10(b) Charter rights and an error in relying on hearsay evidence for the alcohol standard solution.

The trial judge found two s. 10(b) breaches but declined to exclude the breath readings under s. 24(2) of the Charter, deeming the breaches technical and their impact minimal.

The appeal court upheld the trial judge's decision, finding no unreasonable factual findings or errors in law regarding the Charter analysis or the admissibility of the breath technician's evidence concerning the alcohol standard solution.

The appeal was dismissed.

The accused, a young Aboriginal first offender, was convicted of impaired driving and operating a motor vehicle with a blood alcohol concentration exceeding 80 mg/100 ml of blood.

She brought constitutional challenges under sections 15 and 12 of the Canadian Charter of Rights and Freedoms.

The section 15 challenge alleged that Ontario's failure to proclaim curative discharge provisions violated equality rights by discriminating against Aboriginal offenders.

The section 12 challenge alleged that the mandatory minimum sentence was grossly disproportionate, particularly given the requirement to enter a conviction and the applicant's Aboriginal background and Gladue principles.

The court dismissed both constitutional challenges and imposed a sentence of a $1,200 fine, a 15-month driving prohibition, and two years probation with mandatory alcohol counselling.

The Crown appealed the acquittal of the defendant on an "Over 80" charge.

The trial judge had acquitted the defendant due to defects in the certificate of a qualified technician (lack of signature, inverted digits) which diminished its probative value, and alternatively, excluded the certificate under s. 24(2) of the Charter due to a s. 10(b) right to counsel infringement.

The appeal court dismissed the Crown's appeal, finding that the trial judge's assessment of the certificate's evidentiary weight was not procedurally unfair to the Crown, as the judge assessed weight, not admissibility, at the end of the trial.

The court affirmed that errors in certificate preparation affect weight, not admissibility, and can constitute "evidence to the contrary" under the Interpretation Act.

The applicant, Brynn Alexandra Campbell, brought a Garofoli application to exclude her statements and blood/alcohol concentration analysis from trial, alleging Charter infringements under sections 7, 8, 10(a), 10(b), and seeking remedy under section 24(2).

The court found that Campbell's statements were compelled under the Highway Traffic Act and thus excluded under section 7 of the Charter.

The blood evidence was deemed illegally obtained by nurses acting as state agents, violating sections 7 and 8 of the Charter, particularly given Campbell's phobia of needles and refusal of consent.

Applying the R. v. Grant analysis, the court concluded that the Charter infringements were serious, and the evidence should be excluded under section 24(2), as its admission would undermine public confidence in the justice system.

The search warrant, based on this excised information, lacked reasonable and probable grounds.

The applicant sought an order to cross-examine the affiant and sub-affiants for search warrants, alleging improper police procedures in obtaining private health information without consent or a court order.

The applicant argued that the affiant failed to disclose crucial information to the issuing Justice of the Peace, which, if known, would have prevented the issuance of the warrants.

The Crown contended that the information was lawfully obtained and fully disclosed.

The court found a sufficient foundation to permit cross-examination of the affiant and sub-affiants to determine if there was a shortfall of disclosure to the Justice of the Peace, which could lead to the exclusion of evidence.

This ruling addresses the admissibility of statements made by the accused, Jason Rodgerson, who is charged with second-degree murder.

The defence sought to exclude the statements, alleging violations of Charter Sections 8, 9, 10(a), and 10(b), and arguing involuntariness.

The court found that a spontaneous utterance made upon arrest and the initial portion of a videotaped interview (by Detective Henderson) were admissible, as they were voluntary and obtained without Charter infringement.

However, the subsequent portions of the videotaped interview (by Detectives Dingwall and Hoard) were excluded under Section 24(2) of the Charter due to a violation of Section 9, as the police deliberately delayed bringing the accused before a Justice of the Peace on drug charges to continue the homicide investigation, even after the accused had asserted his right to silence and no new information justified further interrogation.

The defendant brought a motion to have portions of a witness's videotaped statement excised.

The witness was the defendant's 13-year-old daughter, and the Crown sought to introduce her videotaped statement pursuant to section 715.1 of the Criminal Code in a domestic assault case.

The defence objected to portions of the statement that went beyond the acts complained of, specifically comments about prior assaults and an assault occurring four years prior.

The court granted the motion in part, finding that preliminary comments about the relationship between the parties were admissible for context, but excising the discussion of the assault that occurred four years prior as it fell outside the scope of the charges.

The defendant was charged with assault causing bodily harm to Marlon Haynes, assault and robbery with respect to Tanika McLeod, arising from a nightclub altercation in Oshawa.

The court found the defendant guilty of assaulting Tanika McLeod but acquitted him of the assault causing bodily harm to Marlon Haynes and the robbery charge.

The court rejected the defendant's testimony regarding his flight from police, finding it demonstrated consciousness of guilt, but accepted his explanation that he mistakenly picked up the complainant's property believing it to be his own.

The accused was charged with operating a motor vehicle with a blood alcohol level exceeding the legal limit contrary to section 253(1)(b) of the Criminal Code, and with two related offences under the Highway Traffic Act.

The trial proceeded by way of a blended hearing incorporating a Charter motion to exclude breath test evidence.

The accused claimed his right to counsel was violated because police refused to allow him to speak to his father.

The court found that the accused did not express a desire to contact his father to facilitate contact with counsel, but rather sought his father's general advice about the situation.

The court rejected the Charter challenge, finding the police properly discharged their duties and the accused was not diligent in exercising his right to counsel.

The accused was found guilty of all three charges.

The accused was charged with four counts: sexual assault and sexual touching (s. 151) of his daughter, and sexual assault and sexual touching of another young complainant.

The defence brought a s. 540(9) application seeking permission to cross-examine the two young complainants regarding evidence the Crown intended to tender under s. 540(7) at the preliminary inquiry.

The Crown opposed cross-examination on grounds that it would cause trauma to the young witnesses.

The court granted the application, permitting cross-examination on specific areas of inquiry deemed relevant to the defence's preparation and the discovery function of the preliminary inquiry, while implementing protective measures including closed-circuit television testimony to minimize trauma.

The accused applied under s. 24(2) of the Charter to exclude a police interview statement on the basis that his s. 10(b) right to counsel was breached.

Although the accused had spoken with duty counsel after arrest, he later expressed confusion about whether duty counsel was a lawyer and repeatedly requested to speak with a lawyer during a subsequent police interview.

The police declined to facilitate further consultation because the accused could not name a specific lawyer.

The court held that the detainee’s comments demonstrated a reason to question his understanding of the right to counsel under the framework established in R. v. Sinclair.

Applying the exclusion analysis from R. v. Grant, the court found the Charter breach serious and concluded that admitting the statement would bring the administration of justice into disrepute.