Teri Martin

The appellant appealed a conviction for operating a motor vehicle with a blood-alcohol concentration exceeding the legal limit following a summary conviction trial.

The sole ground of appeal alleged ineffective assistance of counsel on the basis that trial counsel decided the accused would not testify without advising that the decision ultimately belonged to the accused.

Fresh evidence on appeal demonstrated that counsel made the decision unilaterally and never discussed the option of testifying with the accused.

The court held that the right to decide whether to testify is a fundamental component of an accused’s control over their defence and counsel’s conduct constituted professional incompetence resulting in procedural unfairness.

Because the accused established that he would have testified had the decision been left to him, a miscarriage of justice occurred.

The accused was charged with impaired operation and over 80 milligrams of alcohol in 100 millilitres of blood following a single-vehicle motor vehicle collision on an icy road.

The defence challenged the lawfulness of the arrest under sections 8 and 9 of the Charter, and the adequacy of the right to counsel consultation under section 10(b).

The court rejected all Charter applications, finding that the officer had reasonable and probable grounds to arrest based on the odour of alcohol, the accused's admission to drinking, the circumstances of the accident, and his apology for committing a DUI.

The court found the accused's testimony unreliable and incredible.

On the trial on the merits, the court convicted the accused on both counts based on expert toxicological evidence establishing a blood alcohol concentration over 80 at the time of driving, corroborated by observations of impairment and the accused's own admissions.

The accused was charged with Operation Impaired and Operation Over 80 following a motor vehicle collision at Highway 401 and Kennedy Road in Scarborough.

The Crown alleged the accused struck and seriously injured a civilian while his blood alcohol concentration was over the legal limit.

The accused raised multiple Charter issues including claims regarding statutorily compelled statements, detention and timely access to counsel, language comprehension difficulties, and lost evidence.

The court found the accused guilty on both counts after addressing the Charter applications and determining that the breath test evidence was admissible.

The accused was charged with impaired operation of a motor vehicle and operation with a blood alcohol level over 80 mg/100 mL following a motor vehicle collision on June 23, 2011.

The Crown relied on breath samples showing readings of 170 and 160 mg/100 mL, officer observations of impairment, and expert toxicology evidence.

The defence challenged the timing of the accident and the reliability of impairment indicators.

The court found reasonable doubt regarding the exact time of the accident, preventing reliance on the statutory presumption.

The court also found conflicting evidence regarding impairment, with some officers and the victim not observing signs of impairment despite high blood alcohol readings.

The court rejected a purely scientific definition of impairment in favour of traditional legal indicators.

The accused was acquitted on both charges.

The accused was charged with impaired driving contrary to section 253(1)(b) of the Criminal Code after providing breath samples at a police station that exceeded the legal limit.

The Crown could not rely on the statutory presumptions of accuracy and identity because the first breath sample was taken beyond the two-hour limit.

The accused sought to raise a reasonable doubt by presenting evidence of his alcohol consumption pattern, arguing that based on his drinking, his blood alcohol level would have been below the legal limit at the time of driving.

The court found the Crown's expert toxicology evidence credible and reliable, and rejected the accused's testimony as inconsistent with the breath readings and unconfirmed by other evidence.

The accused was convicted.

The accused was charged with operating a motor vehicle with a blood-alcohol concentration exceeding 80 mg per 100 ml of blood contrary to section 263(1) of the Criminal Code.

The defence challenged whether the Crown had established that the breath samples were received directly into an approved instrument, as required by section 258(1)(c)(iii) of the Criminal Code.

The trial judge found that the Crown had satisfied this requirement through circumstantial evidence, including the officer's testimony regarding the Intoxilyzer 8000C, the mouthpiece mechanism, the two samples provided, and the resulting readings.

The accused was found guilty.

The Crown appealed an acquittal for operating a motor vehicle with blood alcohol exceeding 80 mg, arguing the trial judge erred in finding a reasonable doubt about whether the accused’s breath samples were analyzed by an approved instrument.

The doubt arose from a calibration certificate referring to an “Intoxilyzer 8000” while the qualified technician’s certificate referred to an “Intoxilyzer 8000C,” which is the approved Canadian instrument.

The Crown also sought to introduce fresh expert evidence clarifying that the distinction relates only to software and that the calibration certificate is standard for both models.

The court held that the trial judge’s conclusion was open on the evidence and that the alleged misapprehension of evidence was not material.

The proposed fresh evidence was rejected because the Crown failed to meet the due diligence requirement under the Palmer test.

The appeal from acquittal was therefore dismissed.

The plaintiff sought payment of a $100,000 accidental death benefit under a group life insurance policy after the insured died in a motor vehicle accident.

The insurer paid the basic life benefit but relied on an exclusion denying coverage where an accident occurs while the insured operates a vehicle with a blood alcohol concentration exceeding 80 mg/100 ml.

Expert evidence was called regarding the reliability of post‑mortem toxicology testing and the insured’s blood alcohol level at the time of death.

The court accepted the reliability of the femoral blood sample analysis showing a concentration of 211 mg/100 ml and held the insurer met its burden of proving the exclusion on a balance of probabilities.

The court further held the exclusion did not require proof that alcohol caused the accident, only that the accident occurred while the insured’s BAC exceeded the specified level.