D. Mapa

This is a ruling on a challenge to the mandatory minimum sentence provisions of the Criminal Code for a drinking and driving offence.

The applicant, Ali Haider Cheema, was found guilty of having care or control of a motor vehicle with excess alcohol and challenged the constitutionality of the mandatory minimum sentence (conviction and $1500 fine) under s.12 of the Charter, arguing it constituted cruel and unusual punishment due to the risk of removal from Canada under the Immigration and Refugee Protection Act (IRPA).

The court found that a conditional discharge was not a fit sentence for the offence, considering the gravity of drinking and driving offences and the public interest in deterrence and denunciation, even with the sympathetic personal circumstances and serious immigration consequences.

The application was dismissed, and the mandatory minimum sentence was imposed.

The defendant, Jia Qiong Shen, faced charges of impaired operation and operation over 80.

The court addressed several admissibility issues, including a Charter s. 8 challenge to a key fob found on the defendant, a s. 9 challenge to the lawfulness of her arrest, and ss. 10(a) and (b) challenges to the admissibility of breath test results.

Additionally, the voluntariness of post-breath test utterances was contested.

The court found the arrest lawful and the key fob admissible.

While the Crown conceded ss. 10(a) and (b) breaches due to delays in providing rights in Mandarin, the court admitted the breath test results under a s. 24(2) analysis, deeming the breaches moderate and the evidence reliable and essential.

However, the post-test utterances were excluded as the Crown failed to prove their voluntariness beyond a reasonable doubt.

Ultimately, the court found the defendant guilty of both impaired operation and operation over 80 based on circumstantial evidence and the admitted breath test results.