Douglas B. Walker

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

He argued the trial judge erred in finding his statements voluntary, finding reasonable suspicion for the roadside demand, finding reasonable grounds for the breathalyzer demand, refusing to exclude evidence under s. 24(2) of the Charter for a s. 10(b) breach, refusing a stay for lost video evidence, and rejecting his bolus drinking defence.

The Superior Court of Justice dismissed the appeal, finding no palpable and overriding errors in the trial judge's credibility assessments, factual findings, or application of legal principles.

The Crown appealed the respondent's acquittal on an 'over 80' charge.

The trial judge had excluded breath certificate evidence after finding Charter breaches under ss. 8 and 9, based on a misapprehension of evidence regarding the officer's grounds for a breath demand and an incorrect test for the reliability of the Approved Screening Device (ASD).

The appeal court found the trial judge misapprehended evidence by concluding the ASD 'fail' was the *only* ground for the Intoxilyzer demand, and erred in requiring proof of ASD calibration.

The appeal was allowed, the acquittal set aside, and a new trial ordered.

The accused was charged with drinking and driving offences under sections 253(1)(a) and 253(1)(b) of the Criminal Code.

The defence brought an application under section 11(b) of the Charter seeking a stay of proceedings due to unreasonable delay.

The charges were laid on January 27, 2012, with first appearance on February 7, 2012.

The matter was scheduled for trial on four separate occasions (June 7, 2012; October 31, 2012; April 17, 2013; and October 23, 2013) before finally proceeding on April 3, 2014.

The court analyzed the approximately 26-month delay and allocated it among inherent delay, defence delay, Crown delay, and institutional delay.

The court found that only the Crown delay and institutional delay could be regarded as unreasonable, and the total unreasonable delay fell within the guidelines established in R. v. Morin.

The application was dismissed.

The accused was charged with impaired operation and "over 80" and brought a disclosure application regarding the over 80 charge.

The application sought extensive disclosure particulars related to the Intoxilyzer 8000-C breath testing device, including maintenance records, technician qualifications, inspection logs, and operational protocols.

The court considered the Supreme Court's decision in R. v. St.-Onge Lamoureux and the Canadian Society of Forensic Science Alcohol Test Committee recommendations.

The court granted partial disclosure, ordering production of inspection and maintenance logs, manufacturer directives and policies, DAVTECH checklists, and particulars regarding alcohol standard usage, while denying other requests as either irrelevant or speculative.