Jason A. Gorda

The appellant appealed convictions for operating a motor vehicle with blood alcohol exceeding the legal limit, arguing that the trial judge erred in dismissing a s. 11(b) Charter application alleging unreasonable delay and in finding that breath samples were taken “as soon as practicable” under s. 258(1)(c)(ii) of the Criminal Code.

The Superior Court of Justice reviewed the allocation of delay, including institutional delay, defence-caused adjournments, and delays arising from disclosure issues related to a police officer’s Drug Recognition Expert training.

The court concluded the trial judge did not err in characterizing the delay or in determining that the overall delay fell within the Morin guidelines.

The court also held that the police acted reasonably in obtaining breath samples approximately 1 hour and 37 minutes after arrest and that the trial judge properly inferred that the delay was explained by operational circumstances at the police station.

The appeal was dismissed.

The appellant appealed convictions for dangerous driving and failure to stop for police, arguing that the trial judge improperly relied on the appellant’s silence at the scene as a factor in rejecting his testimony.

The appeal court held that using an accused’s failure to protest innocence at the scene as a credibility factor is impermissible.

Because the trial judge’s reasoning indicated that this improper factor formed part of the chain of reasoning leading to conviction, the court could not conclude that the verdict would inevitably have been the same without it.

The conviction was therefore set aside.

A new trial was ordered on both counts and the conditional stay on the failure to stop charge was lifted.

The appellant appealed a conviction for impaired driving and driving over 80, arguing the trial judge erred by refusing to permit a late Charter application under s. 24(1) after an earlier s. 24(2) exclusion application had failed.

The proposed remedy sought to prevent the Crown from relying on the presumption of identity under the Criminal Code following a finding of a minor s. 8 breach.

The court held that trial judges possess broad discretion to control proceedings and enforce compliance with procedural notice rules governing Charter applications.

Given the late timing, non‑compliance with notice requirements, and minimal seriousness of the underlying breach, the trial judge properly exercised discretion in refusing to entertain the application.

The appeal was dismissed.

The appellant appealed criminal harassment convictions arguing that the trial judge erred in refusing a stay of proceedings for breach of the right to be tried within a reasonable time under s. 11(b) of the Charter.

The court found that several periods of delay had been incorrectly characterized as neutral, including delay caused by late disclosure, the Crown’s failure to subpoena witnesses, and the Crown’s late filing of written submissions.

Properly characterized, a substantial portion of the delay was attributable to the Crown and institutional factors, exceeding the Morin guidelines.

The appellant had also demonstrated actual prejudice resulting from restrictive bail conditions that interfered with employment and personal life.

The court concluded that the delay was unreasonable and granted a stay of proceedings.