Mr. Moftah

The accused was charged with impaired driving following an arrest on July 1, 2013.

The case proceeded to trial on September 15, 2014, at which point the defence brought a section 11(b) Charter application to stay the proceedings based on unreasonable delay.

The court found that the total delay from the swearing of the information to the trial date exceeded 17 months, with approximately 11 months and 3 weeks attributable to Crown and institutional delay—well beyond the 8-10 month guideline established in R. v. Morin.

The delay was caused by Crown negligence in failing to notify a witness of the first trial date and late disclosure of a 911 call.

The accused demonstrated prejudice through additional work absences and increased legal costs from multiple missed trial dates.

Balancing the seriousness of impaired driving against the constitutional violation and prejudice, the court granted the stay.

The accused was charged with operating a motor vehicle with a blood alcohol level exceeding 80 mg per 100 ml of blood.

The Crown's case rested on breathalyzer readings of 118 mg and 110 mg.

The accused raised a bolus drinking defence, arguing that she had consumed most of the alcohol immediately before being stopped and that it had not been fully absorbed into her bloodstream at the time of driving.

The trial judge rejected the accused's evidence regarding the timing and volume of her alcohol consumption, finding her testimony not credible.

The trial judge also found problems with the expert evidence that was based on the accused's account.

The accused was convicted.

The appellant appealed his convictions for impaired care or control and driving with excess alcohol.

He argued the trial judge erred in dismissing his s. 11(b) Charter application for unreasonable delay, in exhibiting a reasonable apprehension of bias by preparing reasons before hearing submissions, in failing to exclude breath readings due to a s. 2(a) Charter breach involving the removal of his turban, and in rejecting his evidence of bolus drinking.

The Superior Court of Justice allowed the appeal, finding the trial judge erred in his s. 11(b) analysis, his s. 2(a) analysis, and his credibility findings regarding the appellant's bolus drinking defence.

A new trial was ordered on both counts.

The appellant appealed a conviction for operating a motor vehicle with blood alcohol exceeding the legal limit, alleging ineffective assistance of counsel at trial.

Trial counsel mistakenly believed roadside statements regarding alcohol consumption could be used to impeach the accused’s credibility, and therefore failed to pursue a Carter defence, obtain relevant disclosure, or retain toxicology evidence.

On appeal, expert evidence suggested the approved instrument may have lacked proper maintenance and that the accused’s blood alcohol concentration at the time of driving could have been below the legal limit.

The court held that counsel’s misunderstanding of governing appellate authority affected strategic decisions and constituted ineffective assistance.

The resulting prejudice created a reasonable possibility that the verdict would have been different.