Jonathan M. Rosenthal

The Crown appealed the acquittal of the defendant on an "Over 80" charge.

The trial judge had acquitted the defendant due to defects in the certificate of a qualified technician (lack of signature, inverted digits) which diminished its probative value, and alternatively, excluded the certificate under s. 24(2) of the Charter due to a s. 10(b) right to counsel infringement.

The appeal court dismissed the Crown's appeal, finding that the trial judge's assessment of the certificate's evidentiary weight was not procedurally unfair to the Crown, as the judge assessed weight, not admissibility, at the end of the trial.

The court affirmed that errors in certificate preparation affect weight, not admissibility, and can constitute "evidence to the contrary" under the Interpretation Act.

The accused was charged with alcohol-impaired care or control of a motor vehicle and care or control with a legally excessive blood alcohol concentration following a traffic stop on Highway 400.

The trial proceeded on the merits with a blended Charter voir dire.

The court found that police violated the accused's Charter section 10(b) right to counsel by failing to provide a Prosper warning when the accused indicated a change of mind regarding legal representation.

The Intoxilyzer readings were excluded as a result.

However, the court found the Crown proved impairment based on the accused's driving pattern and roadside observations, resulting in conviction on the impaired charge and acquittal on the over 80 charge.

The applicant brought a section 11(b) Charter application seeking a stay of proceedings on the grounds that his right to be tried within a reasonable time had been breached.

The applicant was charged with two drunk driving offences on May 18, 2015, with trial scheduled for October 24-26, 2016, resulting in a total delay of 17 months and 8 days.

The court applied the framework established in R. v. Jordan, 2016 SCC 27, which sets an 18-month presumptive ceiling for Ontario Court of Justice matters.

The court found that while the delay fell below the ceiling, the applicant failed to meet the onus of establishing that the case took markedly longer than reasonable.

The court dismissed the application, finding that the applicant did not take meaningful steps to expedite proceedings, particularly by failing to pursue Crown pre-trials or judicial pre-trials, and that both parties had limited availability for trial dates.

The accused was charged with operating a motor vehicle while his blood alcohol level exceeded 80 mgs of alcohol in 100 mLs of blood.

He brought a section 11(b) Charter application alleging that his right to be tried within a reasonable time had been infringed.

The charge was laid on February 8, 2014, and the trial was scheduled for October 9, 2014, but could not proceed due to court overbooking.

A new trial date was set for March 26, 2015, resulting in a total delay of approximately 13 months and 16 days.

The court found that the institutional delay of 11 months and one week exceeded the Morin guidelines, that the accused suffered actual financial and emotional prejudice, and that the delay was unacceptable for a straightforward impaired driving case.

The charge was stayed.

The accused was charged with impaired operation of a motor vehicle contrary to s. 253(1)(a) of the Criminal Code.

A civilian witness observed the accused's truck swerving erratically across lanes and changing speed without apparent cause, prompting a 911 call.

Police officers observed similar driving patterns and stopped the vehicle.

The accused displayed signs consistent with impairment including red and watery eyes, slurred speech, and unsteadiness.

The court found the Crown proved impairment beyond a reasonable doubt based on the credible evidence of the civilian witness and police observations of the accused's inability to maintain a safe driving course.

The court rejected the accused's assertion that diabetes could account for the observed impairment and found a guilty verdict.

The accused brought a section 11(b) Charter application alleging that his right to be tried within a reasonable time had been infringed.

Charged with impaired operation of a motor vehicle and operating with blood alcohol exceeding 80 mgs per 100 mls of blood, the accused faced a delay of approximately 15 months and 20 days from charge to trial conclusion.

The court found institutional delay of 12 months and 3 weeks to be unacceptable for a straightforward drinking and driving case.

The accused suffered actual financial and emotional prejudice from the delay, including unexpected adjournment after the first trial date commenced.

The court granted a stay of proceedings.

The accused was charged with operating a motor vehicle while his blood alcohol level was over 80 mgs on February 10, 2011.

The trial was scheduled for April 12 and 13, 2012, approximately 14 months after the charge.

The accused brought a section 11(b) Charter application alleging a violation of his right to be tried within a reasonable time.

The court found that institutional delay of 11.5 months was unreasonable and unacceptable for a relatively simple 1.5 day trial, particularly where the defence and Crown were not responsible for the delay.

The court granted a stay of proceedings as the appropriate remedy.

The applicant was charged with operating a motor vehicle while impaired by alcohol and exceeding the legal blood alcohol limit.

At trial, the defence brought a motion to quash the information on the grounds that it was a nullity.

The defence argued that because the applicant had been arrested and released on a Promise to Appear, a summons could not be issued under section 507 of the Criminal Code.

The defence further contended that the proper procedure should have been section 507.1, which was not followed, rendering the information statutorily deemed never to have been laid.

The Crown argued that the phrase "has already been arrested" refers to someone held in custody, not merely arrested and released, and that any procedural defect was cured by the applicant's subsequent attornment to the court's jurisdiction.

The court dismissed the motion to quash.