Parfett

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

The trial judge had acquitted the accused after finding the Crown failed to prove identity and that the accused's section 8 and 9 Charter rights were breached because the arresting officer misspoke the blood alcohol formula.

The Superior Court of Justice allowed the appeal, finding the trial judge made a palpable and overriding error by ignoring agreed statements of fact regarding identity, and erred in law in her section 24(2) analysis by excluding the breathalyzer evidence for a minor technical breach.

The accused's cross-appeal alleging a section 10(b) breach was dismissed, as the police exercised reasonable diligence in attempting to contact his counsel of choice.

A new trial was ordered.

The parties, who are family members, disputed which real estate agent should list the matrimonial home for sale.

The respondents were successful on the motion and sought costs.

The applicant argued costs should be postponed until ancillary issues were resolved by a Master.

The court declined to postpone costs and awarded partial indemnity costs to one respondent and substantial indemnity costs to the other respondent from the date of her Rule 49 offer to settle.

The Crown brought a motion for the summary dismissal of the respondent's appeal of her impaired driving conviction.

The respondent had pleaded guilty but appealed on three grounds: ineffective assistance of counsel, lack of understanding of the plea due to language difficulties, and insufficient evidence.

The court dismissed the ineffective assistance and insufficient evidence grounds, finding that the respondent received appropriate advice and that the admitted facts supported the conviction.

However, the court allowed the appeal to proceed solely on the issue of whether the respondent's language difficulties rendered her guilty plea uninformed or involuntary.

The defendants sought clarification of a trial decision regarding the quantum of overtime payable to the plaintiff, arguing that business closures and vacations should reduce the amount.

They also asked the court to revisit a finding regarding a fraudulent withdrawal of cheques.

Applying Rule 59.06(1), the court held it could only correct accidental slips or omissions.

The court found no evidence to support reducing overtime for business closures or family vacations, as the plaintiff was not cross-examined on these points.

However, the court corrected its original decision to exclude overtime for two specific vacation periods taken by the plaintiff.

The court declined to change its finding on the fraudulent cheques, noting the timeline of the cheques supported the original conclusion.