David R. Parke

The offender, a 23-year-old international student with a G2 licence, was convicted of impaired driving causing death and dangerous driving causing death after striking and killing an off-duty police officer.

The court considered the offender's G2 licence status, which prohibited driving with any alcohol in his system, as a statutory aggravating factor under s. 320.22(g) of the Criminal Code.

Emphasizing denunciation and deterrence for impaired driving offences, the court sentenced the offender to 6 years in the penitentiary, less pre-trial custody credits, and imposed a 10-year driving prohibition.

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 appellant appealed his conviction for driving with a blood alcohol concentration over 80 mg.

He raised six grounds of appeal, including challenges to the admission of hearsay evidence regarding the breathalyzer's calibration, the application of the repealed presumption of identity, the reasonableness of the delay in taking breath samples, the officer's grounds for arrest, and the Crown's failure to disclose the analyst's certificate.

The Superior Court of Justice dismissed all grounds, finding no errors in the trial judge's application of the law or assessment of the evidence.

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 accused was charged with dangerous driving causing death and bodily harm after his vehicle drifted into oncoming traffic, resulting in a fatal collision.

The Crown argued the accused was awake but inattentive for 14 seconds.

The defence argued there was a reasonable possibility the accused fell asleep at the wheel without prior warning.

The court found that the driving was objectively dangerous, but there was a reasonable possibility the accused fell asleep and had no reason to foresee the risk of falling asleep.

The accused was acquitted.

The Crown appealed the accused's acquittal on a charge of operating a motor vehicle while impaired by a drug.

The trial judge had delivered a brief oral acquittal and later provided comprehensive written reasons after inviting further submissions on a new appellate decision.

The parties agreed that under R. v. Teskey, the appellate court could not consider the written reasons, and under R. v. Sheppard, the oral reasons were insufficient for appellate review.

The summary conviction appeal court accepted the joint submission, set aside the acquittal, and ordered a new trial.

The appellant appealed his conviction for driving with a blood alcohol concentration over the legal limit.

He argued that his statements to the police at the scene of a single-vehicle collision were compelled under the Highway Traffic Act, and therefore the officer's observation of the smell of alcohol should have been excluded under the Charter.

The summary conviction appeal judge upheld the trial judge's finding that the officer detected the smell of alcohol independently of the compelled statements, specifically when the appellant was isolated in the police cruiser.

The appeal was dismissed.

The appellant appealed his conviction for driving with a blood alcohol level exceeding 80 mg/100 mL.

He argued that his breath samples were not taken 'as soon as practicable', that the Crown could not rely on the repealed 'presumption of identity' provision, and that his s. 10(b) Charter right to counsel was violated when he was denied a second call to his own lawyer after speaking with duty counsel.

The Superior Court of Justice dismissed the appeal, finding no error in the trial judge's conclusion that the breath tests were conducted within a reasonable time, that the presumption of identity continued to apply to pre-amendment offences, and that the appellant's dissatisfaction with duty counsel did not trigger a right to a second consultation.

The offender pleaded guilty to operating a motor vehicle with methamphetamine causing death, operating while prohibited, and failing to comply with bail.

He crossed the center line and caused a fatal head-on collision.

The court weighed the severe aggravating factors, including his prior impaired driving record and driving prohibitions, against mitigating factors such as his guilty plea and remorse.

The court imposed a global sentence of 6 years imprisonment, reduced by 60 days for COVID-19 collateral consequences, and granted 1347 days of pre-sentence custody credit, leaving a remnant of 2 years and 53 days to serve.

A 12-year driving prohibition was also ordered.

The Crown appealed a summary conviction sentence where the trial judge granted a conditional discharge for impaired driving, finding the mandatory minimum sentence violated s. 12 of the Charter.

The Crown also sought to introduce fresh evidence of the respondent's subsequent impaired driving conviction.

The Superior Court dismissed the fresh evidence application but allowed the sentence appeal, finding the trial judge made several errors in principle, including failing to prioritize deterrence and denunciation, mischaracterizing the circumstances as mitigating, and ignoring statutory aggravating factors.

The court varied the sentence to the mandatory minimum of a $1,000 fine and a 12-month driving prohibition, declining to rule on the s. 12 Charter issue.

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, charged with impaired driving causing death, brought a Charter s. 8 application to exclude blood alcohol evidence obtained via a search warrant.

The accused argued the Information to Obtain (ITO) contained misleading statements and that the police unlawfully seized his blood by placing a seal on a vial at the hospital before obtaining the warrant.

The court conducted a sub-facial review of the ITO, excised minor errors, and found the amplified record still provided reasonable grounds to issue the warrant.

The court also held, following appellate precedent, that placing a seal on a blood vial taken for medical purposes and left in the hospital's control did not constitute an unreasonable seizure.

The application was dismissed.

The defendant was convicted of two counts of operating a motor vehicle with a blood alcohol concentration exceeding 80 milligrams per 100 millilitres of blood and causing bodily harm, contrary to section 255(2.1) of the Criminal Code.

The defendant was acquitted on two counts of impaired driving causing bodily harm.

The defendant challenged the constitutionality of section 255(2.1), arguing it lacks sufficient fault requirement and is overbroad.

The court upheld the constitutionality of the section, finding it contains adequate fault requirements and is not saved by section 1 of the Charter, as it pursues the important objective of deterring drinking and driving and employs proportionate means.

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.