Don Perry

The appellant appealed convictions for impaired operation and refusing to provide a breath sample.

He argued that the trial judge failed to properly assess whether the arresting officer’s belief of impairment was objectively reasonable, improperly relied on the refusal to provide a breath sample, and placed undue weight on demeanor evidence when comparing in-court testimony to video evidence.

The court held that the trial judge correctly applied the legal test for reasonable and probable grounds and that the factual findings—odour of alcohol, slurred speech, presence of alcohol, and difficulty opening the glove compartment—supported the officer’s belief of impairment.

The court also held that refusal evidence was admissible and could support an adverse inference under the Criminal Code.

The appeal court found no reversible error in the credibility findings or evidentiary assessment.

Following the release of reasons for judgment on the appeal, the Court of Appeal received written submissions on costs.

The Court declined to fix costs for the underlying application, directing the parties to make submissions to the application judge.

For the appeal, the Court rejected the respondents' claim for substantial indemnity costs, determining that partial indemnity was appropriate, and fixed the respondents' costs at $15,000 inclusive of disbursements and GST.

The appellant property owner sought a declaration that the respondents' registered rights of way over its land had expired under Part III of the Registry Act.

The appellant argued that the 1981 amendments required a notice of claim in the prescribed form to preserve an easement after 40 years.

The application judge dismissed the application, finding that a claim could also be preserved if referenced in an instrument registered within the title search period.

The Court of Appeal dismissed the appeal, holding that the statutory definition of 'notice period' and the complementary nature of the title search and expiry periods supported the preservation of claims through reference in registered instruments.