Edwin Boeve

This criminal trial concerned a charge of having a blood alcohol level in excess of the legal limit ("80+").

The defence sought to exclude breath test readings, alleging breaches of sections 8 and 9 of the Canadian Charter of Rights and Freedoms.

The court addressed three main issues: whether police must delay an Approved Screening Device (ASD) test for 15 minutes, whether the officer had reasonable grounds for arrest and Approved Instrument (AI) demand given a lack of direct testimony about the ASD's working order, and an alleged cell toilet privacy breach.

The court found no requirement for a 15-minute delay and dismissed the privacy breach claim as inadvertent.

However, it found a Charter breach regarding the officer's failure to subjectively consider the objective reliability of the ASD.

Applying the R. v. Grant test for exclusion of evidence under s. 24(2), the court determined that despite the breach, its impact on the accused's Charter interests was nil, as the ASD was objectively proven reliable by other evidence.

Consequently, the admission of the breath test evidence would not bring the administration of justice into disrepute.

The application to exclude was dismissed, and a finding of guilt was entered.

The appellant appealed his conviction for operating a motor vehicle with a blood alcohol concentration exceeding 80 mg, arguing the trial judge erred in admitting breath certificate evidence under s. 24(2) of the Charter.

The trial judge had found a s. 10(b) breach because the arresting officer failed to facilitate the appellant's request to call his girlfriend to obtain a lawyer's name.

The summary conviction appeal court found no palpable and overriding error in the trial judge's Grant analysis, concluding she properly assessed the seriousness of the breach and the officers' conduct.

The appeal was dismissed.

The appellant appealed the decision of the Chief Animal Welfare Inspector to remove and keep her animals (dogs, a cat, and a rabbit) and the associated statement of account.

The animals were removed following an investigation prompted by complaints about their living conditions.

The Animal Care Review Board found that there were no reasonable grounds to believe the animals were in distress on the day of the investigation, noting they were well-fed, hydrated, and generally in good health.

The Board revoked the decisions to remove and keep the animals, revoked the statement of account, and ordered the animals returned to the appellant.

The appellant, Robin Titcombe, appealed his convictions for impaired driving and refusal to provide a breath sample.

He raised four grounds: unlawful breath demand, inappropriate inference of guilt from refusal, misapprehension of evidence regarding reasonable grounds for arrest and demand, and failure to apply the proper test for impaired operation.

The court dismissed all grounds of appeal, affirming the trial judge's findings that the breath demand was lawful, the adverse inference from refusal was properly drawn, reasonable and probable grounds existed for the arrest and demand, and the "slight impairment" test was correctly applied based on the totality of evidence.

The appellant appealed his conviction for sexual assault, raising five grounds including reasonable apprehension of bias, misapplication of the twin myths regarding delayed reporting, uneven credibility assessment, misapprehension of evidence, and errors in finding no motive to lie.

The Superior Court of Justice reviewed the trial judge's interventions and credibility findings, concluding there was no reasonable apprehension of bias and that the trial judge's factual findings were entitled to deference.

The appeal was dismissed.

The defendant, charged with 80 plus operation of a conveyance, brought a Charter application to exclude breath test evidence, arguing a violation of her s. 10(b) right to counsel due to a language barrier.

The court found that special circumstances existed, requiring the police to provide the informational component of the right to counsel in the defendant's native Tamil, which was not done, thus constituting a s. 10(b) violation.

However, applying the R. v. Grant test, the court found the seriousness of the breach to be low, the impact on the defendant's Charter rights to be low (as she received legal advice via an interpreter later), and society's interest in adjudication on the merits to be high.

Consequently, the breath evidence was admitted, and the defendant was convicted.

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

He argued the trial judge erred by admitting a video of his interaction with the breath technician who was unavailable to testify, finding no breach of his s. 10(b) Charter right to counsel, and rejecting his defence that his autism spectrum disorder provided a reasonable excuse for refusing the breath demand.

The Superior Court of Justice dismissed the appeal, finding the video was admissible as direct evidence, the appellant failed to exercise due diligence in contacting counsel, and the trial judge's findings on impairment and lack of reasonable excuse were supported by the evidence.

The defendant was charged with impaired driving and "Over 80" breath sample.

The defendant sought exclusion of breath test results based on alleged breaches of sections 8, 9, and 10(b) of the Canadian Charter of Rights and Freedoms.

The court found no breach of sections 8 and 9 regarding reasonable grounds for arrest, but found a breach of section 10(b) regarding the right to counsel.

The court determined that the police failed to inform the defendant that his requested counsel was a paralegal rather than a lawyer, and failed to provide a "Prosper warning." However, the court found that the breath samples should not be excluded under section 24(2) of the Charter.

The defendant was found guilty of both counts, with a conditional stay entered on the "Over 80" charge pursuant to R. v. Kienapple principles.

The appellant, Craig Warling, appealed his conviction for operating a motor vehicle with a blood alcohol concentration exceeding 80 mg, contrary to s. 253(1)(b) of the Criminal Code.

The appeal raised three grounds: error in applying the legal test for Officer in Charge release under s. 498 of the Criminal Code, error in finding no connection between the purported Charter breach (arbitrary detention) and breath readings for s. 24(2) analysis, and error in determining the seriousness and impact of the s. 24(2) breach.

The Superior Court of Justice dismissed the appeal, finding that the trial judge correctly determined that the police acted reasonably in detaining the appellant for a bail hearing given his non-resident status and other factors.

The court also found no contextual connection between the alleged arbitrary detention and the breath samples, and that even if a breach occurred, its impact was minimal, thus not warranting exclusion of evidence under s. 24(2) of the Charter.

The accused was charged with impaired care or control of a motor vehicle and operating a motor vehicle with a blood alcohol content exceeding 80 mgs per 100 mls of blood.

The Crown relied on breath sample evidence obtained following a traffic stop at a gas station.

The defence challenged the lawfulness of the detention and the grounds for the breath demand under the Charter.

The court found no arbitrary detention but did find a violation of section 8 of the Charter regarding reasonable and probable grounds for the breath demand.

However, the evidence was admitted under section 24(2) as the breach was minor and society's interest in adjudication on the merits favoured inclusion.

The court found the Certificate of Qualified Breath Technician admissible and the presumptions under section 258 of the Criminal Code were not displaced.

The accused was convicted of the over 80 offence but acquitted of impaired care or control, as the Crown failed to prove impairment of driving ability beyond a reasonable doubt.

The appellant appealed his conviction for possession of marijuana for the purpose of trafficking, arguing the trial judge erred in finding no air of reality to his defence of duress.

The appellant claimed he was forced to transport drugs to pay off a $40,000 debt to an unsavoury character who threatened him and his family.

The Court of Appeal upheld the trial judge's finding that the appellant had safe avenues of escape, such as going to the police or liquidating his RRSPs, and therefore failed to establish an air of reality to the defence.

The appeal was dismissed.

The accused struck a 90-year-old pedestrian in a crosswalk while making a right turn on a red light.

The victim died from her injuries two days later.

The accused fled the scene after briefly stopping and observing the victim's severe injuries.

The court found that the accused's failure to stop before striking the pedestrian, despite having a clear view and sufficient time to react, constituted a marked departure from the standard of care of a reasonable driver.

The accused was found guilty of dangerous driving causing death and failing to remain at the scene of an accident.

The defendant was charged with having care or control of a motor vehicle while impaired by alcohol and with having care or control of a motor vehicle with a blood alcohol level exceeding 80 milligrams per 100 millilitres of blood.

The Crown conceded it could not prove the defendant drove the vehicle.

The central issue was whether the defendant, found in the driver's seat with the engine running, was in care or control of the vehicle.

The defendant testified she was in the vehicle to smoke and continue a conversation with her boyfriend, with the engine running for heat on a cold night.

The court found the defendant rebutted the presumption of care or control under section 258(1)(a) of the Criminal Code based on her credible evidence supported by corroborating witnesses, a concrete plan to spend the night at the location, and the presence of a sober adult in the passenger seat.

The Crown failed to prove beyond a reasonable doubt that a realistic risk of danger existed.

The accused was charged with operating a motor vehicle while impaired by alcohol and with having a blood alcohol concentration exceeding 80 milligrams per 100 millilitres of blood.

The Crown proved the charges beyond a reasonable doubt.

The court rejected Charter applications challenging the arrest, breath demand, and video surveillance of the accused in the holding cell.

The court found reasonable and probable grounds for the arrest and breath demand, and determined that while video surveillance of the accused using the toilet infringed her section 8 rights, the infringement was not so serious as to warrant exclusion of evidence or a stay of proceedings.

The court found the accused guilty of both offences.

The accused was charged with care or control of a motor vehicle with excess blood alcohol following a police response to a parking lot in Wasaga Beach.

The Crown sought to rely on breath sample readings of 140 milligrams of alcohol per 100 millilitres of blood.

The defence raised three issues: whether the detention following breath sampling was arbitrary, whether the accused's right to counsel was violated, and whether the breath samples were taken as soon as practicable.

The court found the samples were taken as soon as practicable and that no violation of the right to counsel occurred.

However, the court found an arbitrary detention breach under section 9 of the Charter, as the police decision to detain was based solely on blood alcohol readings without considering other relevant circumstances.

Nevertheless, the court declined to exclude the evidence under section 24(2) of the Charter, finding the breach was modest and made in good faith.

The accused was found guilty.

The appellant appealed a conviction for impaired operation, arguing that the trial judge failed to consider the evidence as a whole, reversed the burden of proof, and reached an unreasonable verdict.

The court held that the reasons were adequate in the context of a non-credibility case, and that the trial judge was entitled to focus on the evidence bearing on impairment at the time of driving.

The impugned exchange with defence counsel did not shift the burden of proof, but merely identified the determinative evidentiary point.

Applying the governing standard that any degree of impairment from slight to great is sufficient, the court found the verdict reasonable and dismissed the appeal.

The applicant municipality sought an order of mandamus with certiorari in aid to quash a mistrial declared by a Justice of the Peace in a careless driving trial.

The respondent defendant had appeared by agent and remained outside the courtroom during the prosecution's case, prompting a nonsuit motion on the issue of identity.

The Justice of the Peace refused to allow the prosecution to file a certificate of offence to prove identity alongside viva voce evidence and declared a mistrial.

The Superior Court held that the Justice of the Peace committed a jurisdictional error by declaring a mistrial instead of ruling on the nonsuit motion, and erred in law by refusing to admit the certificate of offence.

The application was allowed, the mistrial quashed, and mandamus issued directing the trial to continue.

The appellant appealed a conviction for operating a motor vehicle with blood alcohol exceeding 80 mg under s. 253(1)(b) of the Criminal Code.

He argued that the trial judge erred in finding that breath samples were taken “as soon as practicable” and that the first suitable sample was obtained within two hours of the time of driving as required by ss. 254(3) and 258(1)(c).

The court reviewed the full sequence of events, including delays caused by the accused’s medical episode and hospital examination.

It held that the trial judge was entitled to conclude the police acted reasonably and that the first suitable sample, taken 65 minutes after driving, satisfied the statutory requirement.

The presumption under s. 258(1)(c) was properly applied using the lowest reading from the analyses.

The Crown appealed a decision of a Summary Conviction Appeal Judge who had ordered a new trial for the accused.

The Court of Appeal allowed the appeal and restored the conviction.

The Court found that the trial judge's section 16 competence inquiry of the child complainant was adequate, as it established her ability to observe, recollect, communicate, and understand the difference between truth and a lie.

Furthermore, the Court held that the trial judge properly understood the complainant's evidence regarding penetration and that there was no inconsistency with the medical evidence.

Finally, the Court concluded that the trial judge provided adequate reasons for accepting the complainant's evidence and rejecting the accused's testimony.

The respondent pleaded guilty to aggravated assault and other offences.

At sentencing, she had spent 16 months in pre-sentence custody.

The sentencing judge considered this equivalent to almost three years and imposed a 14-month conditional sentence, which the Court of Appeal upheld.

The Supreme Court of Canada allowed the Crown's appeal, holding that under s. 742.1 of the Criminal Code, a conditional sentence is unavailable to an offender who otherwise deserves a penitentiary term.

Time spent in pre-sentence custody cannot be used to reduce the sentence range to make a conditional sentence available.