Pamela Borghesan

The appellant appealed convictions for assault causing bodily harm and assault with a weapon arising from a bar altercation.

The trial judge had relied on generalizations about “bar fight” cases and drew adverse credibility inferences from the accused’s failure to provide certain details during a police statement.

The summary conviction appeal court held that the trial judge improperly relied on the accused’s partial silence when assessing credibility, contrary to principles affirmed in appellate jurisprudence on the right to silence.

The court also found the trial judge’s analytical framework, which treated bar fight cases as having predictable credibility dynamics and sought a “franchise witness,” was inconsistent with the approach mandated by R. v. W.(D.).

The convictions were set aside and a new trial ordered.

The appellant was arrested for impaired driving and driving with excess blood alcohol, providing breath samples of 200 mg.

He was held in custody for over eight hours before release.

At trial, he sought a stay of proceedings, arguing his right to be free from arbitrary detention was breached.

The trial judge dismissed the application.

On appeal, the Superior Court upheld the decision, finding the officer-in-charge did not rely solely on blood alcohol readings but considered other factors, including the appellant's condition and lack of a known ride.

The court also held that police do not have an absolute duty to inquire about or facilitate transportation for an accused's release.