Terrance P. O'Connor

The Crown appealed an acquittal for impaired driving and operating a motor vehicle with blood alcohol exceeding the legal limit.

The trial judge had excluded evidence derived from hospital records after finding that a physician’s disclosure to police of an odour of alcohol breached the accused’s s. 8 Charter right against unreasonable search and seizure.

The appeal court held that the accused did not have a reasonable expectation of privacy in the smell of alcohol on her breath observed by a physician in a hospital emergency room.

The disclosure did not engage s. 8 protection, and even if it had, the evidence would have been admissible under the s. 24(2) analysis in R. v. Grant.

The acquittal was set aside and a new trial ordered.

The accused was charged with aggravated assault following a drunken fight outside a house party that left the complainant with skull fractures and other injuries.

The Crown alleged the accused punched and kicked the complainant in the head while he was on the ground.

The trial focused on credibility and causation, including conflicting witness accounts and the complainant’s severe intoxication.

The court found the only witness alleging a kick had credibility concerns and that no witness reported a kick to police at the scene.

Evidence that the complainant’s head struck the pavement while being moved by others raised a reasonable doubt as to whether the accused caused the injuries.

In a high-conflict family dispute involving competing motions for temporary custody of three children, the court was faced with extensive, untested affidavit evidence containing serious and conflicting allegations between the parents.

Investigations by police and child protection authorities did not result in charges or protection findings.

Given the imminence of a scheduled trial and the incomplete evidentiary record, the court declined to determine the temporary custody issues on the motion.

The court held that credibility assessments and a full evidentiary record were required and therefore left the issues for determination by the trial judge.

The appellant appealed a conviction for refusing to provide a breath sample contrary to s. 254(5) of the Criminal Code.

The appeal alleged that the trial judge failed to address whether the accused was given a final opportunity to provide a breath sample, misapprehended evidence regarding the accused’s attempts to blow into the approved screening device, and misapplied the credibility analysis from R. v. W.(D.).

The summary conviction appeal court held that the trial judge made clear credibility findings, reasonably rejected the accused’s evidence, and properly placed the burden of proof on the Crown.

Applying the deferential standard owed to findings of fact and credibility, the court found no reversible error in the trial decision.

The conviction was upheld.

The moving defendants sought summary judgment dismissing a personal injury action arising from a motor vehicle collision.

The motion judge considered the enhanced summary judgment powers under Rule 20 of the Rules of Civil Procedure and applied the “full appreciation test” articulated in Combined Air Mechanical Services v. Flesch.

Evidence included affidavits, cross‑examinations, and a prior guilty plea by one defendant to disobeying a red traffic signal.

The court held that the plea and consistent witness evidence established that the responding driver entered the intersection against a red light and was solely responsible for the collision.

Finding no genuine issue requiring a trial and no real chance of success against the moving defendants, the court granted summary judgment dismissing the action against them.

Following a property dispute between rural neighbours concerning the scope of a registered right-of-way, the successful applicants sought partial indemnity costs after obtaining a declaration confirming they could access their lands at any point along the right-of-way.

The respondents argued there was divided success because the applicants failed to prove a prescriptive right and contended the case was close.

The court rejected the respondents’ characterization of the dispute and found that both parties, particularly the respondents, had taken intransigent positions that prolonged the litigation.

Although the applicants were entitled to costs, the court found the time spent by counsel excessive given the narrow issues and limited attendances.

Costs were reduced and fixed at a lower amount.

In a family law proceeding following a motion addressing spousal support, the respondent wife sought costs from the commencement of the proceeding after obtaining a consent order for ongoing support.

The court held that under Rule 24(10) of the Family Law Rules, costs must generally be sought and determined promptly after each step in the proceeding.

Relying on appellate authority, the court found that costs relating to earlier steps where no costs were requested or reserved could not later be claimed.

The wife was therefore limited to seeking costs for the motion heard on December 9, 2011.

Given her success on the support issue and an unaccepted offer to settle that was substantially matched by the result, the court awarded full indemnity costs for the motion.