Phil Perlmutter

The Crown appealed a sentence where the trial judge set aside a notice of prior conviction under s. 255 of the Criminal Code, relying on a provincial appellate decision.

The Supreme Court of Canada subsequently reversed that decision, meaning the trial judge erred by failing to impose the mandatory minimum sentence of 120 days.

The Court of Appeal allowed the appeal and imposed the 120-day sentence, but stayed it because the respondent had already served a full 12-month conditional sentence.

The appellant appealed a decision of the Summary Convictions Appeal Court that had dismissed his appeal from conviction.

The Crown conceded the appeal.

The Court of Appeal agreed with the concession, allowed the appeal, and ordered a new trial on both counts.

The appellant sought leave to appeal his summary conviction on two grounds related to his right to counsel under s. 10(b) of the Charter.

He argued that s. 10(b) ensures a minimum level of competency from duty counsel and that police should have facilitated a further call.

The Court of Appeal dismissed the application, noting that the Supreme Court of Canada has held police have no obligation to monitor the quality of legal advice, and duty counsel is not a state actor.

The second ground was dismissed due to an insufficient evidentiary record.

The appellant appealed his conviction for having care or control of a motor vehicle with a blood-alcohol level over 80 milligrams.

He argued he had already been acquitted of the offence and that the trial judge erred in finding he had care or control.

The Court of Appeal dismissed the first ground but allowed the appeal on the second.

The Court held that the trial judge's conclusion that opening a passenger door to deposit a bag constituted a risk of danger was unreasonable, as there was no indication the appellant intended to resume driving.

The conviction was set aside and a new trial ordered.