James V. Palangio

The Court of Appeal for Ontario considered three appeals arising from two convictions and an order for a new trial in impaired driving cases.

The central issue was whether, under the amended Criminal Code, the Crown must adduce direct evidence from an analyst or the analyst’s certificate to prove the alcohol standard used to calibrate an Approved Instrument, or whether the certificate or testimony of a qualified technician is sufficient.

The court followed the Yukon Court of Appeal’s decision in R. v. MacDonald, holding that the qualified technician’s certificate is evidence of the facts alleged in it, including that the alcohol standard was certified by an analyst.

The appeals were dismissed.

This Crown appeal addresses the timeframe within which an initial refusal to provide a roadside breath sample (ASD demand) can be retracted before constituting a criminal offence.

The Court of Appeal for Ontario reconciled the "same transaction" principle from R. v. Domik with the "immediately" requirement of the Criminal Code s. 320.27(1)(b).

The court held that Domik applies to ASD demands, but the "same transaction" window is limited by the time police can lawfully obtain a sample "immediately," considering operational time and unusual circumstances, as interpreted by R. v. Breault.

The trial and summary conviction appeal judges erred in law by not properly applying these constraints.

The appeal was allowed, the acquittal set aside, and a new trial ordered.

The moving party, convicted of impaired driving, sought to re-open his application for leave to appeal, arguing that due to an administrative error, the panel was not provided with all the material filed.

The moving party had relied on arguments from factums in two other related applications.

The Court of Appeal dismissed the motion, noting that the panel had in fact obtained and reviewed the related factums before determining the original application.

The moving party failed to establish a clear and compelling case that a miscarriage of justice would likely occur absent a re-opening.

The Crown appealed a Summary Conviction Appeal Court decision that overturned the accused's convictions for impaired driving and operating a motor vehicle with a prohibited blood alcohol concentration.

The appeal judge had found that the Crown failed to prove a breath demand was made, which precluded reliance on the evidentiary shortcuts in former ss. 258(1)(c) and (g) of the Criminal Code.

The Court of Appeal dismissed the Crown's appeal, confirming that while the lawfulness of a demand need not be proven to use the shortcuts, the fact that a demand was made is a condition precedent.

The Court also agreed that the defence's failure to object to the certificate's admissibility when tendered did not prevent them from arguing in closing that the Crown failed to prove an essential element of the offence.

The Crown and Ontario Provincial Police appealed a disclosure order requiring production of a drug recognition expert's rolling log.

The rolling log documented all drug evaluations conducted by the DRE from training through certification.

The respondent was charged with drug-impaired operation of a motor vehicle.

The trial judge ordered disclosure of the rolling log, and the motion judge affirmed.

The Court of Appeal dismissed the appeal, holding that the rolling log was "obviously relevant" material subject to first party disclosure under the Stinchcombe regime, and that disclosure was permitted under the exception in section 258.1(2)(a) of the Criminal Code even when anonymized.

The appellant appealed her conviction on two counts of dangerous driving causing death and two counts of dangerous driving causing bodily harm.

While backing out of a parking spot at a Costco store, the appellant's vehicle accelerated in reverse and crashed into the store's front entrance, killing two individuals and injuring two others.

The appellant claimed her foot became stuck under the brake pedal, preventing her from stopping the vehicle.

The trial judge rejected this explanation as implausible and found the appellant created a dangerous situation by reversing at high speed and taking no corrective action for at least five seconds.

The Court of Appeal upheld the conviction, finding the trial judge properly applied the legal standard for dangerous driving and that the verdict was reasonable.

The Crown appealed the sentencing judge's refusal to impose a fine in lieu of forfeiture against the respondent, who had defrauded his employer of over $900,000 and committed subsequent frauds while on bail.

The sentencing judge had declined to order a fine in lieu of forfeiture, citing the respondent's inability to pay, the impact on his rehabilitation, and the availability of civil remedies for the victims.

The Court of Appeal allowed the appeal, holding that the sentencing judge erred by applying general sentencing principles to the forfeiture analysis.

The Court imposed a fine in lieu of forfeiture of $1,036,750, with 10 years to pay and a consecutive 10-year sentence in default.

The applicant sought leave to appeal a summary conviction appeal court decision that dismissed his appeal from a conviction.

The Court of Appeal refused leave, noting that the applicant sought to re-litigate issues already decided at trial and on summary conviction appeal, relied on well-settled legal principles, and raised issues intertwined with findings of fact.

The court emphasized that an appeal under s. 839 is not a second appeal from the trial judgment.

The appellant was convicted by a jury of criminal negligence causing death and leaving the scene of an accident, but acquitted of dangerous driving causing death arising from the same conduct.

On appeal, the Court of Appeal found the verdicts for criminal negligence and dangerous driving to be necessarily inconsistent, as the jury found a marked and substantial departure but not a marked departure.

The conviction for criminal negligence was set aside and an acquittal entered.

The conviction for leaving the scene was also set aside due to a flawed jury instruction on 'evidence to the contrary', and a new trial was ordered on that count.

The Crown appealed a Summary Conviction Appeal Court (SCAC) decision that overturned the accused's 'over 80' conviction and ordered a new trial.

The SCAC judge had ruled the trial judge's reasons inadequate because the trial judge failed to determine which of two police officers made the breath demand, as both officers testified the other had done so.

The Court of Appeal allowed the Crown's appeal and restored the conviction, holding that the SCAC judge erred by adding an unnecessary element of proof.

The trial judge's finding that a valid demand was made was sufficient under the Criminal Code, and the accused's compliance with the demand provided a complete answer absent a Charter challenge.