J. Zegers

The Crown appealed the respondent's acquittal on a charge of failing to comply with a breath demand.

The trial judge had found the approved screening device (ASD) demand unlawful, concluding the officer lacked reasonable suspicion and failed to make the demand immediately.

The summary conviction appeal court allowed the appeal, finding the trial judge erred in law by rejecting the defence's concession on reasonable suspicion without explanation and by ignoring objective facts such as the odour of alcohol and the respondent's admission to drinking.

The appeal court also held the trial judge erred by interpreting 'immediately' as 'instantaneously', finding the two-to-four minute delay was reasonably necessary.

The acquittal was set aside and a new trial ordered.

The accused was tried on ten charges arising from a three-year common law relationship, including assault, sexual assault, assault causing bodily harm, assault with a weapon, and uttering threats.

The accused brought a Charter application alleging a breach of section 7 due to the police's failure to preserve video surveillance evidence, which was dismissed as the court found no unacceptable negligence.

Applying the W.(D.) framework, the court assessed the credibility of both parties, finding the complainant largely credible despite some inconsistencies, while rejecting much of the accused's testimony.

The accused was found guilty of seven counts, including assault, assault with a weapon, and uttering threats, but acquitted of sexual assault and two other assault charges where reasonable doubt remained.

The applicant brought a Charter application under s. 24(2) seeking exclusion of drugs and other items seized following his arrest for possession of controlled substances for the purpose of trafficking.

He argued the police lacked reasonable and probable grounds to arrest him and that the subsequent searches of his person, vehicle, and backpack were unlawful, breaching ss. 7, 8, and 9 of the Charter.

The court held that, considering the totality of the circumstances including confidential informant tips, corroborating surveillance, and the observation of a distinctive backpack linked to drug trafficking, the arresting officer had objectively reasonable and probable grounds.

Even if a Charter breach had been established, the court concluded that the Grant factors would favour admission of the evidence.

The application to exclude the evidence was dismissed.

During a criminal jury trial for arson with disregard for human life under s. 433(a) of the Criminal Code, the Crown sought to have the jury also consider arson causing damage to property under s. 434 as a lesser and included offence, or alternatively, to amend the indictment to add a s. 434 charge.

The court ruled that s. 434 is not a lesser and included offence of s. 433(a) because it contains distinct elements, such as the property not being wholly owned by the accused.

The court denied the Crown's motion to amend the indictment mid-trial, finding it would prejudice the accused and risk confusing the jury.

However, the court permitted the offence of mischief to be put to the jury as a valid included offence.

The appellant appealed a conviction for operating a motor vehicle with blood alcohol exceeding the legal limit.

The appeal centred on whether breath samples were admissible where the accused responded “No, not right now” when asked if he wished to contact counsel after arrest.

The court held that this response did not constitute a clear and unequivocal waiver of the right to counsel under s. 10(b) of the Charter.

Police obtained breath samples before providing a meaningful opportunity to consult counsel, and the failure to reiterate and facilitate access at the station constituted a Charter breach.

Applying the exclusion analysis under s. 24(2), the court found the breach deliberate and significant and excluded the breath evidence.