Mike Michaud

The Crown appealed the acquittal of the respondent on an "over 80" charge, while the respondent had been convicted of failing to stop after an accident.

The appeal focused on the trial judge's interpretation of the statutory defence under s. 320.14(5) of the Criminal Code (post-driving alcohol consumption) and the exclusion of Intoxilyzer evidence under s. 24(2) of the Charter.

The court found the trial judge erred in concluding there was an "air of reality" to the s. 320.14(5) defence without expert evidence and in characterizing the Charter breach as "egregious" for evidence exclusion.

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

The Crown appealed the acquittal of the accused, Dustin Matthews, on a charge of having an excess of blood alcohol concentration.

The trial judge had found breaches of sections 8 (unreasonable search) and 10(b) (right to counsel) of the Charter and excluded evidence under section 24(2).

The appeal court found no section 8 breach, ruling that police had an implied invitation to knock on the garage door during a hit-and-run investigation, which was not a pretextual search.

It also found no section 10(b) breach, as the brief delay in reading rights was permissible for driving offences.

Consequently, the section 24(2) analysis was deemed unnecessary.

The appeal was granted, and a conviction was registered.

Kyle Byrne pleaded guilty to impaired operation of a motor vehicle causing the death of Karli Chomick, contrary to s.320.14(3) of the Criminal Code of Canada.

The incident involved a high-speed collision while the offender's blood alcohol concentration was more than twice the legal limit.

The court accepted a joint submission for a sentence of five years imprisonment, an eight-year driving prohibition (totaling 13 years), a 10-year weapon prohibition, and a secondary DNA order.

The sentencing emphasized denunciation and deterrence, considering aggravating factors such as high blameworthiness, the victim's death, high BAC, excessive speed, and the offender's initial call to his mother instead of 9-1-1.

Mitigating factors included the guilty plea, first-time offender status, and the offender's serious injuries.

The applicant brought a directed verdict motion on two grounds: first, challenging the applicability of the prior section 258 presumption of identity (the Shaikh argument), and second, challenging whether the new section 320.31 presumption of accuracy could apply to the facts (the Flores-Vigil argument).

The court dismissed the application in whole.

The court found that there was sufficient evidence from which a trier of fact could apply the new presumption of accuracy under section 320.31, as the breath technician was trained and qualified, the alcohol standard was certified by an analyst as suitable for use, and the technician's knowledge of the target value was part of her training.

The court reserved written reasons on the Shaikh point.

The Crown appealed an acquittal for refusing an Approved Screening Device (ASD) demand.

The trial judge found a Charter breach of the right to counsel, reasoning that the officer's subjective belief of a potential delay triggered the right, and his actions suspended the usual suspension of counsel rights during a "forthwith" demand.

The appeal court held that the trial judge erred by overemphasizing the officer's subjective belief and incorrectly equating a chance to call a lawyer with a "realistic opportunity to consult counsel." The court reiterated that the right to counsel is suspended during a forthwith ASD demand if there is no realistic opportunity for consultation, regardless of the officer's subjective expectations.

The officer's gratuitous offer of counsel rights does not create a right where none exists.

The appeal was allowed, and a new trial ordered.

The accused was charged with operating a motor vehicle over the legal limit contrary to the Criminal Code of Canada.

The Crown proved the essential elements of the offence beyond a reasonable doubt.

The defence raised three Charter-based issues: two alleged breaches of section 9 (arbitrary detention) relating to placement in the police cruiser and overholding at the station, and one alleged breach of section 8 (unreasonable search and seizure) relating to a pat-down search.

The court found that placing the accused in the cruiser was reasonable and necessary for administering the ASD test.

The pat-down search was found to be unlawful and a breach of section 8, but evidence was not excluded under section 24(2) as the breach was not serious enough.

The court assumed a breach of section 9 regarding overholding for approximately three hours but declined to grant a stay of proceedings.

The accused was found guilty.

The appellant, Mohamed El Boury, appealed his conviction for operating a motor vehicle with a blood/alcohol level in excess of 80mg.

The primary ground of appeal was the admissibility of the certificate of a qualified technician, specifically whether a copy had been properly served on the appellant as required by s. 258(7) of the Criminal Code.

The trial judge found that the certificate had been served on a balance of probabilities, a finding upheld on appeal.

The appeal court agreed with the Alberta Court of Appeal's reasoning in R. v. Redford that physical retention of the certificate is not required for valid service.

Additionally, the court found that even if the certificate was inadmissible, the Crown had proven the offence through viva voce evidence from the breath technician.

The appeal was dismissed.

The appellant, Natalia Korzh, appealed her convictions for impaired driving and over 80, arguing violations of her Charter rights, including the right to trial within a reasonable time under s. 11(b).

The appeal court applied the new framework from R. v. Jordan, finding that the total delay of nearly 24 months (or just under 21 months after subtracting defence delay) exceeded the 18-month presumptive ceiling for provincial court cases.

The Crown failed to establish exceptional circumstances, largely due to its failure to provide timely disclosure of video evidence, which significantly extended the trial.

Consequently, the court granted the appeal and stayed the charges under s. 24(1) of the Charter.

The accused was charged with assaulting the complainant on June 15, 2015.

The Crown alleged that the accused pushed the complainant with both hands, causing her to fall, and then kicked her in the chest with significant force.

The accused denied the assault, claiming the complainant was attacking him and that he was attempting to leave the house to catch a bus for basketball training.

The trial judge found that the accused's evidence raised a reasonable doubt regarding his guilt and acquitted him of the charge.

The defendant was charged with impaired operation of a motor vehicle and operating a motor vehicle with a blood alcohol concentration in excess of the legal limit.

The defendant brought Charter applications alleging breaches of section 8 (warrantless search of breath samples) and section 10(b) (right to counsel).

The court found that the 45-minute delay at the roadside before transporting the defendant to the testing facility violated the statutory requirement that breath samples be taken "as soon as practicable," constituting a section 8 breach.

The court also found a section 10(b) breach because police failed to facilitate the defendant's expressed desire to contact counsel during the roadside delay.

However, under section 24(2) of the Charter, the court admitted the breath testing evidence, finding that while the breaches were serious, the impact on the defendant's Charter-protected interests was minimal, the evidence was highly reliable and discoverable, and society's interest in adjudicating impaired driving cases on their merits favoured admission.

The defendant was convicted on both counts.

The defendant was charged with operating a motor vehicle with an excessive blood alcohol concentration after failing a roadside screening test.

The defendant's BAC readings were more than twice the legal limit.

The defence argued that the arresting officer's seven-minute delay in making the approved screening device demand violated the defendant's Charter section 8 rights to be secure against unreasonable search and seizure.

The court found that the delay did breach the "forthwith" requirement under section 254(2) of the Criminal Code, rendering the searches and seizures unreasonable.

However, applying the section 24(2) analysis from R. v. Grant, the court determined that the evidence should be admitted as the balance of factors favoured admission.

The defendant was convicted.