Matthew Morley

Appeal from convictions for dangerous driving causing death, five counts of dangerous driving causing bodily harm, and failure to comply with a term of bail.

The appellant argued the trial judge's jury charge failed to distinguish between the actus reus and mens rea of the dangerous driving offences, risking conflation.

The Court of Appeal dismissed the appeal, holding the charge generally followed the model instruction in Watt's Manual, clearly instructed the jury on both the objective dangerousness of the driving and the marked departure standard, and when read as a whole equipped the jury to decide the case.

The jury question about the Highway Traffic Act definition of dangerous driving did not indicate confusion about the instructions.

The sentence appeal was dismissed as abandoned.

The Court of Appeal for Ontario dismissed Arsenije Lojovic’s conviction appeal but allowed his sentence appeal, reducing his sentence from 10 years to 8 years (less pre-trial custody).

The court found that the trial judge erred by treating Lojovic’s bipolar disorder as an aggravating factor rather than a mitigating one.

The decision reviews the proper approach to NCR (not criminally responsible) assessments and the role of mental illness in sentencing, emphasizing that mental health conditions can reduce moral blameworthiness and the weight of deterrence and denunciation.

The Court of Appeal for Ontario granted Morthaza Amirdad’s application for bail pending appeal after his conviction for 50 firearms offences.

The court found that the applicant’s argument regarding the trial judge’s failure to properly apply the Supreme Court’s guidance in R. v. Debot to confidential informant information was a credible ground of appeal.

The court also considered public safety and public confidence in the administration of justice, ultimately concluding that the applicant’s strict compliance with bail conditions, strong proposed bail plan, and status as a first-time offender justified release pending appeal, despite the seriousness of the offences.

The Crown appealed the respondent's acquittals on charges of causing death while driving with excess blood-drug concentration (THC) and dangerous driving causing death, following a fatal collision with a horse and buggy.

The trial judge had acquitted the respondent on the basis that the Crown failed to prove a causal nexus between the respondent's impairment and the collision, and failed to establish a marked departure from the standard of care.

The Court of Appeal allowed the appeal, holding that section 320.14(3) of the Criminal Code does not require proof that the impairment itself caused the death, only that the accused caused the death while committing the predicate offence.

The Court also found the trial judge erred in applying the modified objective standard for dangerous driving.

A new trial was ordered.

The appellant appealed his conviction for impaired operation of a conveyance and driving with a blood alcohol level over 80 mgs/100 mL.

The Crown conceded a s. 8 Charter breach because the arresting officer did not have an approved screening device (ASD) on scene when making the breath demand, as per R. v. Breault.

The trial judge found consequential s. 9 and 10(b) breaches but declined to exclude the evidence under s. 24(2) of the Charter, citing the officer's good faith error due to a change in law.

On appeal, the court re-evaluated the s. 24(2) Grant analysis, excising the ASD result as required by R. v. Zacharias, which led to findings of unlawful arrest, detention, and breath samples.

Despite these breaches, the court upheld the trial judge's decision not to exclude the evidence, finding that the seriousness of the state conduct and impact on the appellant's rights were outweighed by society's interest in adjudication on the merits, particularly in impaired driving cases.

The appeal was dismissed.

This is an appeal of a conviction for operating a motor vehicle with a blood alcohol concentration exceeding 80 mg.

The appellant alleged multiple Charter breaches, including an invalid Approved Screening Device (ASD) demand due to the officer not having the device present, delays in informing and facilitating the right to counsel, and a privacy breach during washroom use at the police station.

The appeal court, applying the Supreme Court of Canada's decision in R. v. Breault, found the ASD demand invalid, leading to cascading Charter breaches (sections 8, 9, 10(b)).

Despite these breaches, which were deemed unintentional and situational, the court dismissed the appeal, concluding that the highly reliable breathalyzer evidence should not be excluded under section 24(2) of the Charter, given the strong societal interest in prosecuting impaired driving.

Correy Dunn was charged with Over 80 and impaired driving following a motor vehicle accident.

The defence argued for exclusion of evidence due to Charter breaches, specifically concerning a delay in the Approved Screening Device (ASD) demand and the muting of police body-worn cameras (BWCs), and challenged the Crown's proof of driver identity.

The court found that the accused was not detained prior to the ASD demand, thus the "forthwith" requirement for the demand was applied flexibly and not breached.

The BWC muting, while an erroneous interpretation of policy, did not prejudice the accused's right to make full answer and defence or constitute an abuse of process, as the muted conversations were not material to the grounds for the ASD demand.

The court also found that the Crown proved beyond a reasonable doubt that the accused was the driver based on circumstantial evidence.

Consequently, all evidence was admissible, and the accused was found guilty on both counts.

The Crown appealed an acquittal on "over 80" charges, where the trial judge excluded breath samples under s. 24(2) of the Charter, finding a s. 8 breach due to police delay in taking samples "as soon as practicable." The Superior Court found the trial judge erred in law by holding that s. 320.28(1) of the Criminal Code imposes a Charter-protected requirement for samples to be taken "as soon as practicable." The court clarified that this phrase relates to an evidentiary shortcut, not a Charter right.

Even if such a requirement existed, the police complied.

The court also found the trial judge's s. 24(2) analysis insufficient and incorrect, concluding that the seriousness of the state conduct was low, the impact on the accused's Charter rights was minimal, and society's interest in adjudication on the merits favored admission.

The appeal was allowed, and a new trial ordered for the "over 80" charge.

The Crown appealed the respondent's acquittal on a charge of operating a conveyance with a blood alcohol concentration equal to or exceeding 80 mg.

The trial judge had acquitted the respondent on the basis that a 'deficient sample' registered by the approved instrument constituted a 'sample' under s. 320.31(1)(a) of the Criminal Code, thereby requiring a new system calibration check before the next sample.

The Summary Conviction Appeal Court allowed the appeal, holding that a deficient sample is not a 'sample' within the meaning of the provision and that there is no implied requirement for a calibration check immediately before each sample.

The court also rejected the respondent's argument that the certificate of qualified technician was inadmissible hearsay, finding itself bound by horizontal stare decisis.

A new trial was ordered.

This is a ruling on a challenge to the mandatory minimum sentence provisions of the Criminal Code for a drinking and driving offence.

The applicant, Ali Haider Cheema, was found guilty of having care or control of a motor vehicle with excess alcohol and challenged the constitutionality of the mandatory minimum sentence (conviction and $1500 fine) under s.12 of the Charter, arguing it constituted cruel and unusual punishment due to the risk of removal from Canada under the Immigration and Refugee Protection Act (IRPA).

The court found that a conditional discharge was not a fit sentence for the offence, considering the gravity of drinking and driving offences and the public interest in deterrence and denunciation, even with the sympathetic personal circumstances and serious immigration consequences.

The application was dismissed, and the mandatory minimum sentence was imposed.

The appellant appealed her conviction for operating a motor vehicle with excess blood alcohol, challenging the trial judge's decision to admit breath test evidence under s.24(2) of the Charter and the admissibility of a qualified technician's certificate.

The appellant argued errors in assessing the seriousness and impact of Charter breaches (s.8, 9, 10(b), and a newly raised s.10(a) issue) and in balancing the factors for exclusion.

She also argued that the certificate contained inadmissible hearsay regarding the alcohol standard solution.

The court dismissed the appeal, upholding the trial judge's s.24(2) analysis, finding no error in the assessment of the seriousness or impact of the breaches, nor in the balancing of factors.

The court refused to allow the appellant to raise the s.10(a) and hearsay issues for the first time on appeal, citing an insufficient evidentiary record, presumed tactical omission, and no resulting miscarriage of justice.

The accused was charged with impaired driving and refusing to provide a breath sample following a traffic stop in Toronto.

The Crown alleged the accused was driving erratically and showed signs of impairment.

The accused was arrested at gunpoint after the officer believed he was attempting to flee.

The accused requested counsel but was not afforded the opportunity to consult before being charged with refusing the breath demand.

The court found the accused not guilty on the refusal charge because his refusal was provisional pending consultation with counsel, which was never provided.

The court also found the accused not guilty of impairment as the evidence did not establish impairment beyond a reasonable doubt based on video evidence.

The court additionally found the police violated the accused's Charter rights through arbitrary detention.

The accused was charged with impaired care or control, over 80 care or control, and possession of crack cocaine following a police investigation that began when officers observed him and a woman in a truck in a laneway.

The accused brought a Charter application seeking exclusion of evidence based on alleged breaches of sections 8, 9, and 10(b) of the Charter.

The court found multiple Charter breaches: an unjustified flashlight search violating section 8; an arrest without reasonable and probable grounds violating section 8; and multiple violations of the right to counsel under section 10(b), including delayed notification of rights, questioning after invocation of counsel, and failure to re-advise on a new charge.

The court excluded all evidence and acquitted the accused on all charges.

The accused was charged with care or control of a motor vehicle with an excessive blood alcohol level contrary to section 253(1)(b) of the Criminal Code.

The accused claimed he was in his parked car in a private lot behind his apartment building to smoke, having moved it only to access a Wi-Fi signal.

He fell asleep in the driver's seat with the engine running.

The court found that the accused occupied the driver's seat, triggering a rebuttable presumption of care or control under section 258(1)(a).

The accused failed to rebut this presumption on a balance of probabilities.

The court also found that even absent the presumption, a real risk of danger existed given the circumstances.

The breath tests were taken approximately 1.5 hours after the alleged offence, raising concerns about compliance with the "as soon as practicable" requirement, but the court found the delay was reasonable in all the circumstances.

The accused was convicted.

The defendant was charged with care and control of a motor vehicle with a blood alcohol count exceeding 80 milligrams per 100 millilitres of blood.

Police found the defendant asleep in the driver's seat of his vehicle with the engine running.

The defence raised three issues: (1) whether a 30-minute delay in administering the roadside screening device breached Charter rights; (2) whether the defendant's right to counsel of choice was violated; and (3) whether the Crown proved a realistic danger that the vehicle could be put in motion.

The court found no Charter violations and determined that while the defendant rebutted the statutory presumption of care and control, the Crown failed to prove beyond a reasonable doubt that there was a realistic risk of danger.

The defendant was acquitted.

The accused was charged with driving over 80 following a police investigation.

The Crown sought to rely on breath sample readings of 170 mgs obtained at a police station.

The defence challenged the admissibility of the breath evidence on three grounds: (1) the time of driving was not accurately recorded to satisfy the two-hour requirement; (2) the breath samples were not taken as soon as practicable; and (3) the accused's right to counsel under the Charter was violated.

The court found no violations regarding the timing of the breath samples.

However, the court found that a police officer interrupted and curtailed the accused's consultation with duty counsel by making hurry-up gestures through a window, thereby violating s. 10(b) of the Charter.

Applying the s. 24(2) analysis from R. v. Grant, the court excluded the breath evidence as the seriousness of the Charter breach and its impact on the accused's protected right outweighed society's interest in adjudicating the case on its merits.

The accused was acquitted.