C. Hurley

The appellant, an Uber driver, appealed his conviction for sexual assault of a passenger, arguing the trial judge applied uneven scrutiny and misapprehended evidence.

The Crown cross-appealed the 60-day conditional sentence, arguing it was demonstrably unfit given the breach of trust.

The Superior Court of Justice dismissed the conviction appeal, finding no palpable and overriding error or material misapprehension of evidence.

The Court allowed the Crown's sentence appeal, finding the trial judge erred in principle and imposed a demonstrably unfit sentence that failed to reflect the serious breach of trust by a professional driver.

The sentence was increased to six months' imprisonment.

The accused was found in the driver's seat of a stationary vehicle on the shoulder of Highway 401.

Police arrested him for impaired driving and demanded breath samples, which registered over the legal limit.

At trial, the accused brought Charter applications under ss. 8, 9, and 10(b).

The court dismissed the ss. 8 and 9 claims, finding the arresting officer had reasonable and probable grounds.

The court found a s. 10(b) violation because a breath technician asked the accused standard booking questions with investigative value before he could consult duty counsel a second time.

However, applying the Grant framework, the court declined to exclude the breath samples under s. 24(2).

The accused was found guilty of impaired operation and operating over 80.