Ismail Moftah

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

The trial judge had acquitted the respondent after finding that the failure to conduct an annual inspection of the breathalyzer amounted to improper maintenance, raising a reasonable doubt about the reliability of the results.

On appeal, the Crown argued that a 2012 Alcohol Test Committee position paper constituted new evidence justifying revisiting the Supreme Court's decision in St. Onge Lamoureux.

The summary conviction appeal judge rejected this argument but found that the trial judge misapprehended the evidence by elevating a recommendation for yearly inspections into a rule without a direct link to a malfunction.

The appeal was allowed and a new trial ordered.

The accused was charged with operating a motor vehicle with a blood alcohol concentration over 80.

At trial, the accused challenged the reliability of the breath test results, arguing that the Intoxilyzer 5000C had not undergone its recommended annual maintenance for over 13 months.

The court applied the Supreme Court's decision in St. Onge-Lamoureux, finding that 'improper operation' under s. 258(1)(c) of the Criminal Code includes improper maintenance.

The failure to perform the annual maintenance rebutted the presumption of accuracy of the breath test results.

Without reliable breath test results, the Crown could not prove the charge beyond a reasonable doubt, and the accused was acquitted.

The appellant was convicted of first-degree murder following a trial where the cause of death and similar fact evidence were central issues.

The Crown alleged the appellant killed his partner during a contraband liquor deal, while the defence argued the death was accidental due to commotio cordis.

The Court of Appeal found the trial judge misdirected the jury by misstating expert evidence regarding carbon monoxide and confusing medical diagnosis with legal causation.

The trial judge also erred in admitting the entirety of a fictitious 'Mr. Big' murder plot as similar fact evidence, as it lacked sufficient distinctiveness and was highly prejudicial.

The appeal was allowed and a new trial ordered.