Jeffrey Milligan

The appellant appealed a conviction for driving with excess blood alcohol, arguing the trial judge erred by dismissing a s. 11(b) Charter application alleging unreasonable delay and by providing insufficient reasons for that ruling.

The appellate court agreed that the trial judge’s reasons were inadequate to permit appellate review and therefore conducted its own analysis of the delay under the Askov and Morin framework.

The court found the total delay of approximately 14 months and 20 days warranted scrutiny but concluded that only about nine months and three weeks constituted institutional and Crown delay.

Some delay was attributable to defence conduct, including insisting on an adjournment based on a mistaken interpretation of s. 657.3 of the Criminal Code and failing to raise s. 11(b) concerns when a continuation date was set.

Although some prejudice arose from multiple trial dates, the court held the delay was not unreasonable in the circumstances.

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.