Joseph A. Neuberger

The appellant sought leave to appeal his conviction for driving with a blood alcohol level over 80.

The trial judge found a breach of the appellant's section 10(b) Charter rights because the police failed to adequately facilitate contact with his counsel of choice, but admitted the breathalyzer readings under section 24(2).

The Court of Appeal agreed with the lower courts that the evidence was admissible and dismissed the appeal.

The accused was convicted of manslaughter in the asphyxiation death of a four-month-old infant.

The Crown had originally charged first degree murder, but the trial judge directed a verdict of acquittal on that charge.

The accused appealed the manslaughter conviction, arguing the verdict was unreasonable and that the trial judge erred in failing to answer a jury question regarding the sequence of events.

The Crown appealed the directed verdict of acquittal.

The Court of Appeal held that the manslaughter verdict was not unreasonable when considering all the evidence, including evidence of smothering that the trial judge improperly excluded.

However, the Court allowed the accused's appeal and ordered a new trial because the trial judge erred in refusing to assist the jury with their question about the mother's evidence.

The Court also allowed the Crown's appeal, finding there was sufficient evidence of intent and smothering to leave the first degree murder charge with the jury, and ordered a new trial on that charge.