Nicholas Xynnis

The Crown appealed the respondent's acquittals for impaired driving and operating a motor vehicle with a blood alcohol concentration over 80.

The trial judge had found a section 9 Charter breach due to a lack of reasonable grounds for arrest and excluded the breath samples under section 24(2).

The Superior Court of Justice allowed the appeal on the over 80 charge, finding the trial judge's reasons were insufficient to explain why the officer lacked reasonable grounds or why the evidence was excluded, thereby foreclosing appellate review.

A new trial was ordered for the over 80 charge, while the acquittal for impaired driving was upheld.

The Crown appealed the accused's acquittal on a charge of driving over 80.

At trial, the accused raised a 'bolus drinking' defence, testifying she rapidly consumed a large beer shortly before driving.

The Crown requested an adjournment to call a toxicologist in reply to calculate the impact of this consumption on her blood alcohol concentration.

The trial judge denied the adjournment, treating the request as an attempt to reopen the Crown's case.

The Superior Court of Justice allowed the appeal, finding the trial judge erred in law by confusing reply evidence with reopening a case.

The Crown was entitled to call reply evidence to respond to a new matter put in play by the defence.

A new trial was ordered.

The appellant appealed a conviction for operating a motor vehicle with a blood alcohol concentration exceeding 80 mg.

After the Crown closed its case at trial, defence counsel argued that the accused had not been identified in court as the person arrested.

The trial judge, on his own initiative, reopened the Crown’s case, recalled the officer, elicited identification evidence, and convicted the accused.

On appeal, the court held that the trial judge’s conduct in reopening the case and personally eliciting the missing evidence created a reasonable apprehension of bias, as it appeared the judge had assumed the role of the prosecution.

Although the evidence already led could have established a prima facie case of identity, the appearance of partiality required that the conviction be set aside and a new trial ordered.