Debra Moskovitz

The accused applied for a stay of proceedings under s. 11(b) of the Canadian Charter of Rights and Freedoms, arguing that a 27.5‑month delay between charge and anticipated trial violated the right to be tried within a reasonable time.

The case involved multiple sexual offence allegations by three complainants and was largely a credibility-based trial expected to last less than a week.

The court found that most of the delay resulted from Crown disclosure failures, including late disclosure of a key video statement and defective recordings of two complainant interviews.

Applying the Morin framework and guidance from cases such as R. v. Godin, the court held that the delay significantly exceeded acceptable guidelines and caused prejudice to the accused’s ability to make full answer and defence.

The accused’s Charter rights were therefore breached and a stay of proceedings was ordered.

The appellant appealed a conviction for operating a motor vehicle with a blood alcohol concentration exceeding 80 milligrams of alcohol in 100 millilitres of blood following a rear-end collision.

The appeal challenged the conviction on the basis of an alleged Charter s. 8 breach relating to reasonable grounds for arrest, the reliability of expert toxicology evidence estimating blood alcohol concentration at the time of driving, and an alleged misapprehension of evidence.

The court held that the proposed Charter issue could not be raised for the first time on appeal because the evidentiary record was insufficient and there was no explanation for the failure to raise it at trial.

The court also found that the expert evidence remained capable of establishing that the appellant’s blood alcohol level was well above the legal limit and that any alleged deficiencies in a police officer’s evidence were irrelevant to the trial judge’s finding of identity based on an eyewitness.

The sentence appeal was also dismissed, as the trial judge was entitled to depart from the parties’ joint sentencing position after hearing submissions.

The appellant appealed a summary conviction for refusing to provide a breath sample into an approved roadside screening device during a Ride Program stop.

The appeal alleged that the trial judge misapprehended evidence concerning the appellant’s attempts to provide a breath sample and improperly rejected the appellant’s explanation for failing to provide a sufficient sample.

The appellant also alleged breaches of ss. 8 and 9 of the Canadian Charter of Rights and Freedoms relating to his detention and a strip search conducted prior to being lodged in cells overnight.

The court held that the trial judge did not misapprehend the evidence and was entitled to draw reasonable inferences regarding the appellant’s conduct.

The court further found that the detention was not arbitrary and that the strip search was justified on the individualized circumstances.

The appeal was dismissed.

The Crown appealed acquittals for impaired driving and operating a motor vehicle with blood alcohol exceeding the legal limit after the trial judge excluded breathalyzer evidence under ss. 8 and 24(2) of the Charter.

The trial judge had concluded that the police officer should have delayed administering the roadside screening device due to the possibility of recent drinking and residual mouth alcohol.

The appellate court held that the trial judge erred in law by requiring the officer to inquire about the timing of the last drink and by finding a reliability concern where the evidence showed a delay of at least twenty minutes between the last drink and the test.

The court further held that even if a Charter breach occurred, exclusion of the breath evidence was unwarranted under the Grant framework.

The acquittals were set aside and a new trial was ordered.

The appellant appealed a summary conviction for operating a motor vehicle with a blood alcohol concentration exceeding 80 mg.

The sole ground of appeal was that the trial judge failed to properly consider the objective component of the reasonable suspicion standard required for an approved screening device demand under s. 254(2) of the Criminal Code.

The appeal court held that it was not necessary for the trial judge to explicitly articulate the legal test so long as the reasons demonstrated that the relevant factors were objectively weighed.

The evidence, including the odour of alcohol from the driver’s breath, the accused being the sole occupant of the vehicle, unusual behaviour during the stop, and the officer’s experience, provided sufficient grounds to support the demand.

The conviction was upheld.

The applicant sought to quash a committal for trial on a charge of attempted murder following a preliminary inquiry.

The applicant argued the preliminary inquiry judge exceeded jurisdiction by inferring specific intent to kill from the circumstances of a violent assault involving strangulation, sexual assault, and severe beating.

The court applied the test of whether there was any evidence upon which a properly instructed jury could infer the requisite intent.

Considering the nature of the attack, the severity of the injuries, the sequence of events, and the abandonment of the complainant while unconscious and seriously injured, the court held there was sufficient evidence from which intent to kill could be inferred.

The application was dismissed and the committal for trial on attempted murder was upheld.

The appellant appealed a conviction for operating a motor vehicle with blood alcohol exceeding the legal limit, alleging ineffective assistance of counsel at trial.

Trial counsel mistakenly believed roadside statements regarding alcohol consumption could be used to impeach the accused’s credibility, and therefore failed to pursue a Carter defence, obtain relevant disclosure, or retain toxicology evidence.

On appeal, expert evidence suggested the approved instrument may have lacked proper maintenance and that the accused’s blood alcohol concentration at the time of driving could have been below the legal limit.

The court held that counsel’s misunderstanding of governing appellate authority affected strategic decisions and constituted ineffective assistance.

The resulting prejudice created a reasonable possibility that the verdict would have been different.

The appellant appealed convictions for impaired driving and operating a motor vehicle with a blood alcohol level over 80 mg, arguing the trial judge erred by refusing to quash the information due to non-compliance with s. 508 of the Criminal Code.

The alleged defect concerned a justice of the peace failing to correctly confirm the form of release on the information, despite the accused having been released on a promise to appear.

The court held that such non-compliance did not invalidate an otherwise properly sworn information and did not deprive the court of jurisdiction.

Relying on appellate authority and persuasive Superior Court decisions, the court concluded that defects relating to confirmation of a promise to appear are collateral to the validity of the charge.

The appeal was dismissed.

The appellant appealed a conviction for impaired driving, arguing that the trial judge erred by applying the presumption in s. 258(1)(c) of the Criminal Code where the offence date on the Information differed from the date the breath samples were taken.

The appellant also argued that the trial judge applied the wrong legal test when determining whether language difficulties constituted special circumstances requiring an interpreter for purposes of the right to counsel under s. 10(b) of the Charter.

The court held that the discrepancy in dates could be corrected by amending the Information under s. 683(1)(g) of the Criminal Code and that the appellant was neither misled nor prejudiced.

The court further found that the appellant sufficiently understood his right to counsel and that the evidence supported the trial judge’s finding of impairment beyond a reasonable doubt.

The appellant was found guilty of six counts of failing to comply with a recognizance.

The Crown subsequently applied to have her found not criminally responsible (NCR).

On the day of the NCR hearing, the self-represented appellant was provided with a lengthy psychiatric report and requested a two-week adjournment to retain counsel.

The trial judge refused the adjournment, forcing the appellant to proceed unrepresented.

The Superior Court of Justice allowed the appeal, finding that the refusal of the adjournment in these circumstances undermined the appearance of fairness and amounted to a miscarriage of justice.

A new trial was ordered.

The appellant appealed convictions for impaired operation and refusing to provide a breath sample, arguing that the trial judge erred in dismissing a delay-based Charter application, in finding no prejudice from delay, in concluding that a lawful breath demand was made, and in imposing a 15‑month driving prohibition.

The court held that the impugned two‑month period was properly characterized as intake delay and that outstanding disclosure did not prevent setting trial dates.

The court further found no evidence that delay prejudiced the appellant’s liberty, security of the person, or ability to make full answer and defence.

The evidence supported the finding that the breath technician effectively made a lawful demand and that the appellant understood the requirement to provide a sample.

The sentence, including a 15‑month driving prohibition and minimum fines, was within the appropriate range and disclosed no error.