Malcolm Savage

The accused was charged with impaired care and control and care and control over 80 after being found asleep in a running motor vehicle.

The Crown conceded care and control.

The trial judge found a serious breach of the accused's s. 10(b) Charter right to retain and instruct counsel of choice when the arresting officer failed to facilitate the accused's apparent request to contact someone, instead only offering duty counsel.

The trial judge also found that the Crown failed to establish that breath samples were taken as soon as practicable, with unexplained delays totalling over 25 minutes.

The evidence of impairment was found to be weak, with the accused appearing coherent and steady once fully awake.

The accused was acquitted on both counts.

The accused was charged with sexual assault.

The Crown alleged that the accused forced sexual intercourse on the complainant against her will.

The accused admitted to sexual intercourse but claimed it was consensual.

The court found the complainant's evidence credible and rejected the accused's testimony as unreliable due to material inconsistencies and self-serving assertions.

The court found that the complainant did not consent and was unambiguous in her resistance.

The court also rejected the defence of honest but mistaken belief in consent, finding the accused was at least reckless in responding to the complainant's clear objections.

The accused was found guilty of sexual assault.

The accused was charged with refusing to provide a suitable breath sample following a roadside stop.

The Crown alleged the accused unlawfully feigned numerous attempts to provide a suitable sample.

The court found that the accused understood the breath demand despite claiming language difficulties, and that he was deliberately feigning his efforts to avoid registering a true result.

The court rejected the accused's evidence as self-serving and found him guilty of the offence, establishing both the actus reus and mens rea elements beyond a reasonable doubt.

The accused was charged with operation impaired and blow over 80 following a motor vehicle stop.

The Crown presented evidence of erratic driving, observations of impairment indicators, and breath test results of 250 and 245 mgs.

A forensic toxicologist extrapolated the readings back to the time of driving, establishing a BAC of 245-290 mgs.

The court found reasonable and probable grounds for arrest and convicted on the blow over 80 charge.

However, the court found a breach of section 9 of the Charter regarding arbitrary detention, as the booking officer relied solely on the breath readings without considering other relevant factors such as the availability of a responsible person to take charge of the accused.

Despite the breach, no stay of proceedings was granted as the case did not meet the high threshold for judicial stay.

The operation impaired charge was stayed.

The accused was charged with impaired care or control and care or control over 80 mgs of alcohol.

The central issue was whether the Crown established that the accused was in care or control of a motor vehicle.

The accused was found in the driver's seat of a parked vehicle with the keys in the ignition and the gearshift in drive position.

The accused claimed he never drove the vehicle and was merely comforting his intoxicated friend in the passenger seat.

The court rejected the accused's testimony as unreliable and found that the conduct created a significant risk of the accused putting the vehicle in motion.

The court convicted on both charges, with a conditional stay on the over 80 mgs charge.

The accused was charged with impaired driving and over .08 following a R.I.D.E. stop on November 28, 2009.

The Crown relied on observations by the arresting officer, a roadside screening device test result showing a fail, and breathalyzer test results.

The defence challenged the grounds for both the approved screening device demand and the breathalyzer demand, as well as whether the tests were administered as soon as practicable.

The court found the officer had reasonable grounds for both demands and that the tests were administered promptly.

However, the court found insufficient evidence of impairment based on the officer's observations alone, without expert evidence linking the breathalyzer readings to impairment at the time of driving.

The accused was acquitted of impaired driving but convicted of over .08.

The accused was charged with dangerous driving, impaired driving, and refusing to provide a suitable breath sample following a three-vehicle collision at an intersection.

The Crown alleged the accused was speeding, driving erratically, and ran a red light while impaired by alcohol.

The accused denied consuming alcohol and claimed he entered the intersection on an amber light.

The court found the accused guilty on all three counts based on credible police and civilian witness testimony, rejection of the accused's testimony as unreliable, and evidence of impaired judgment and alcohol consumption.

The accused was charged with uttering threats to kill and burn down a house following a confrontation with his landlord over a Rent Tribunal Order requiring him to pay outstanding rent.

The Crown alleged the accused threatened to kill the landlord and burn down the house.

The defence called evidence from the accused's father and girlfriend denying the threats were made.

The court found the Crown witnesses credible but harboured reasonable doubt about whether the threats were actually uttered, particularly given the landlord's failure to mention the serious threats (death and arson) to the 911 operator immediately after the alleged incident, combined with the landlord's strong motive to evict the accused.

The accused was acquitted.

The accused was charged with Operation Impaired and Blow Over 80 after being found in the driver's seat of his vehicle in a ditch with the engine running.

The Crown alleged the accused had more than the legal limit of alcohol in his blood system.

The defence challenged the arrest on Charter grounds, argued the vehicle was immovable and therefore the accused could not have care or control, and contended the breath tests were not taken as soon as practicable.

The trial judge found reasonable and probable grounds for the arrest existed, the presumption of care or control was not rebutted, but the breath tests were not taken as soon as practicable due to an unexplained 31-minute gap between the first and second tests.

The Blow Over 80 charge was dismissed due to the loss of the statutory presumption.

The Operation Impaired charge was also dismissed despite moderate indicia of impairment, as the Crown did not seek a conviction on this charge.