H. Limheng

The accused was charged with impaired operation and operating a conveyance with blood alcohol exceeding 80mg after being observed acting bizarrely in a courthouse and driving erratically in the parking lot.

An Assistant Crown Attorney who witnessed the conduct in court reported his suspicions to police, who arrested the accused after observing slurred speech, bloodshot eyes, and an improperly parked vehicle.

The accused advanced Charter applications under ss. 7, 8, and 9, arguing that his compelled courthouse attendance rendered his in-court conduct protected by the principle against self-incrimination, and that the police lacked reasonable grounds for detention and arrest.

All Charter applications were dismissed: the accused's conduct was not compelled, the police stop was connected to a highway safety purpose, and the arresting officer had objectively reasonable grounds.

As the merits of the charges were conceded if the Charter applications failed, findings of guilt were entered on both counts.

The appellant appealed his summary conviction for assault against his ex-girlfriend.

At trial, the defence called a witness who testified that the complainant admitted to fabricating the assault to gain an advantage in a custody dispute.

Defence counsel inadvertently failed to put this statement to the complainant during cross-examination.

The Crown did not object until closing submissions, at which point defence counsel immediately requested to recall the complainant.

The trial judge refused the request and convicted the appellant.

On appeal, the Superior Court of Justice found that the trial judge erred in refusing to recall the witness, and that the Crown's untimely objection contributed to trial unfairness.

The conviction was quashed and a new trial ordered.