A. D. Galluzzo

The appellant was convicted of having care or control of a motor vehicle while impaired by alcohol, contrary to s. 253(1)(b) of the Criminal Code.

The appeal challenged the trial judge's findings regarding the appellant's "alternate plan" to avoid driving, the application of the reasonable doubt standard, and the assessment of credibility.

The Superior Court of Justice dismissed the appeal, affirming that the trial judge correctly applied the "realistic risk of danger" test from Boudreault, finding no concrete or reliable alternate plan to negate the inherent risk posed by the appellant's extreme intoxication, despite the driver's seat presumption being rebutted.

Summary conviction appeal from a sexual assault conviction arising from an employer's staff party.

The appellant argued that the trial judge materially misapprehended evidence concerning the complainant’s intoxication, dancing, evolving account of the assault, scene location, and surrounding circumstances, and also reversed the burden of proof by faulting the defence for calling only certain witnesses.

The appeal court held that the reasons focused on credibility without adequately addressing reliability, contained several non-peripheral misapprehensions of evidence, and improperly commented on witness-calling choices in a manner inconsistent with the Crown’s burden.

The conviction was set aside and a new trial was ordered before a differently constituted summary conviction court.