Peter N. Bourque

The Crown appealed a decision by a Justice of the Peace who granted a stay of a careless driving charge under section 11(b) of the Canadian Charter of Rights and Freedoms due to delay in bringing the matter to trial.

The appeal was conducted as a review under section 136 of the Provincial Offences Act.

The court found that the delay of approximately 12-13 months from the notice of intention to appear to trial completion significantly exceeded the guidelines established in R. v. Morin.

The Crown's argument that the defence was not ready for trial because it did not request disclosure until June 24, 2014 was rejected.

The court found that the inferred prejudice from such delay outweighed any societal interest in prosecution of the highway traffic offence, and the appeal was dismissed.

The defendant was charged with dangerous driving, impaired driving, and refusal to provide a breath sample following a motor vehicle collision in Markham.

The Crown's case established that the defendant's vehicle drove directly off the road and crashed into a retail building with significant force.

The defendant testified that he had consumed three beers at a restaurant and had no memory of the accident.

The trial judge rejected the defendant's evidence regarding alcohol consumption and his claim of retrograde amnesia.

The court found the defendant guilty on all three counts based on the circumstances of the accident, observations of impairment by officers, and the defendant's unequivocal refusal to provide a breath sample.

The defendant, a personal support worker at a nursing home, was charged with assault for allegedly pushing the head of an elderly patient with Alzheimer's disease three times while showering her.

The Crown's case relied on the testimony of a fellow PSW worker who claimed to have witnessed the alleged pushes.

The defendant testified that she was simply washing the patient's face and hair to remove feces and did not assault the patient.

The court found the defendant not guilty, concluding that the Crown failed to prove the charge beyond a reasonable doubt due to significant frailties in the eyewitness testimony and the consistency of the defendant's account with the physical evidence.

R.M. and S.T. both brought applications under section 490(10) of the Criminal Code for the return of $2,105.00 seized by police from S.T. upon her arrest for allegedly breaking into R.M.'s home.

The criminal charges against S.T. were withdrawn.

The court assessed the credibility of both parties and found S.T.'s explanation for possessing the cash and her actions on the night of the break-in to be implausible.

On a balance of probabilities, the court concluded the seized funds were the proceeds of the break-in at R.M.'s home and ordered the money returned to R.M.

The accused was charged with multiple counts of assault and sexual assault against his former romantic partner over a period of approximately one year ending in February 2013.

The Crown alleged that the defendant assaulted the complainant on several occasions, including breaking her nose, choking her, striking her with various objects, and sexually assaulting her.

The defendant testified in his own defence, denying all allegations and providing alternative explanations for the incidents.

The court found significant credibility issues with the complainant's testimony, including multiple contradictions between her police statement and courtroom evidence, inconsistent accounts given to different people, and implausible details regarding the alleged incidents.

The court acquitted the defendant on all counts, finding that the Crown had not proven its case beyond a reasonable doubt.

The accused was sentenced for possession of marijuana contrary to section 4(1) of the Controlled Drugs and Substances Act.

The accused had previously been sentenced to a conditional sentence of two years less a day for trafficking in cocaine.

Within two weeks of the conditional sentence order, the accused breached two conditions: failing to remain in his residence and breaching the condition to keep the peace and be of good behaviour by possessing marijuana.

The accused acknowledged both breaches and pled guilty to the possession charge.

The court imposed a fine of $150 plus victim fine surcharge for the possession offence and suspended the conditional sentence order, directing the accused to serve 87 days in custody (90 days less 3 days pre-trial custody credit), with amended conditions upon release including 75 hours of community service.

The accused was charged with driving a motor vehicle with excess alcohol.

The Crown presented evidence from a police officer and breath technician regarding the arrest and breath testing procedures conducted on September 9, 2014.

The defence challenged whether the breath samples were taken as soon as practicable, arguing that delays in obtaining a breath technician resulted in the presumption of identity not applying.

The court rejected this argument, finding that the delay was reasonable and that the Crown could rely on the presumption of identity.

The court also considered a toxicologist's report and rejected the defence argument regarding bolus drinking.

The accused was found guilty of driving with excess alcohol.

The appellant appealed his convictions for three Highway Traffic Act offences.

The Crown withdrew two charges during oral argument, leaving only the charge of disobeying a sign under section 182(2) of the HTA.

The appellant's defence was that the prohibition signs at the intersection were not visible to him and he was unaware he was breaking the law.

At trial, the Justice of the Peace refused to grant an adjournment to allow the appellant to print photographs from his cell phone showing the sign placement and visibility.

The appellate court found this refusal to be an overriding and palpable error.

Upon review of the photographic evidence, the court concluded that no reasonable driver in the appellant's position would have seen the signs and allowed the appeal, setting aside the conviction and substituting a finding of not guilty.

The defendant was charged with impaired care and control and over 80 care and control following a report of a potential impaired driver at an LCBO.

The Crown's case relied on observations of impairment by three police officers and breath test readings of 140 milligrams of alcohol in 100 millilitres of blood.

The court found that the Crown failed to prove beyond a reasonable doubt that the first breath test was completed within the two-hour statutory requirement due to uncertainty regarding the precise time of the offence.

Additionally, the court found that the Crown failed to prove impairment beyond a reasonable doubt based on the totality of the evidence, including inconsistencies in officer observations and the defendant's cooperative demeanor.

The defendant was acquitted on both counts.

The accused was charged with driving with excess alcohol contrary to section 253(1)(b) of the Criminal Code.

The accused brought a Charter application alleging that he was not provided his rights to counsel in a timely manner and was unable to consult with his counsel of choice.

The court found a technical breach of section 10(b) regarding the delay in providing rights to counsel (14 minutes from arrest to provision of rights), but determined that the evidence should be admitted under section 24(2) analysis.

The court also found no breach regarding the failure to provide counsel of choice, as the officer acted with reasonable diligence and the accused failed to act diligently in exercising his rights.

The accused was found guilty.

The accused was charged with impaired driving and driving with excess alcohol.

The accused brought a Charter application challenging the lawfulness of the police entry onto her property.

The officer attended at the accused's residence in response to a dispatch report of a possible impaired driver.

The property was secured by a motorized metal gate at the end of a 200-metre driveway, with intercom and security camera systems.

The officer entered the property by following a security guard through the gate without explicit permission.

The court found two Charter breaches: an unlawful entry onto the property in violation of section 8 rights, and an arrest without reasonable and probable grounds.

The court excluded all evidence obtained after the officer passed through the gate, finding that admission would bring the administration of justice into disrepute.

The Crown appealed the acquittal of a defendant charged with permitting fill to be placed on property without a permit, contrary to the Town of Whitchurch-Stouffville By-Law No. 2008-016-RE.

The trial justice misdirected himself on the applicable legal issue, focusing on whether the defendant transported new fill rather than whether fill was placed or dumped.

Both parties agreed the decision should be set aside.

The appellate court declined to amend the information to substitute "dumping" for "placing" and enter a conviction, finding that the defendant would be prejudiced by such an amendment at the appellate stage.

The court remitted the matter for retrial and permitted the Crown to amend the information to include the alternative means of committing the offence.

The defendant was charged with assault causing bodily harm following an incident on a Keswick street where he struck the complainant, causing serious head injuries requiring brain surgery.

The defendant admitted striking the blow but claimed self-defence, asserting he believed the complainant was about to strike him.

The incident followed a confrontation at a local bar the previous evening where the complainant made threats and displayed aggressive behaviour.

The court examined conflicting eyewitness accounts and found the defendant's evidence, while not without blemish, raised a reasonable doubt regarding his guilt.

The court acquitted the defendant on the basis that the Crown failed to prove beyond a reasonable doubt that the defendant did not act in self-defence.

The accused was charged with refusal to provide an adequate sample into an approved screening device (ASD) following a RIDE stop.

The Crown alleged the accused failed to provide a sufficient breath sample during multiple attempts at the roadside.

The court found the accused not guilty, determining that the Crown failed to establish a valid demand based on reasonable suspicion and failed to prove beyond a reasonable doubt that the accused intentionally refused to provide a sample.

The officer's evidence was undermined by inconsistencies regarding the smell of alcohol, poor documentation of the testing procedures, failure to activate video recording, and subsequent unauthorized breath demand.

The accused was charged with driving with excess alcohol.

The Crown presented evidence from a York Regional Police officer and a breath technician regarding the investigation and breath testing procedures.

The defence challenged whether the breath tests were administered as soon as practicable, arguing that the officer completed the roadside sample at 02:28 and then delayed, and that the officer should have arrested for impaired driving without conducting an Approved Screening Device (ASD) test.

The court found that the police acted reasonably throughout the investigation, that the total elapsed time of approximately 1 hour and 15 to 22 minutes was reasonable, and that the officer's decision to conduct an ASD was justified.

The court found the accused guilty based on the breath test readings of 140 milligrams of alcohol in 100 millilitres of blood.

The accused was charged with assault causing bodily harm after an altercation in a parking lot resulted in the complainant suffering a broken jaw.

The Crown alleged the defendant struck the complainant with a glass bong.

The defendant claimed he acted in self-defence after being attacked by the complainant and his friend while sitting in his vehicle.

The court found the defendant not guilty, determining that the Crown failed to prove beyond a reasonable doubt that the defendant struck the complainant with the bong, and that even if the defendant caused the injury through punching, his response was reasonable self-defence under section 34 of the Criminal Code.

The defendant was charged with impaired driving and driving with excess alcohol following a motor vehicle collision.

The Crown's case relied on breath test results showing 160 milligrams of alcohol per 100 millilitres of blood.

The central issue was whether the defendant was in care and control of the vehicle at the time of the collision and whether the breath tests were taken within the required two-hour window.

The court found that the Crown failed to prove beyond a reasonable doubt the precise time of care and control, rendering the breath test evidence inadmissible.

Additionally, the court found insufficient evidence of impairment based on the officers' observations and the toxicologist's opinion alone.

The defendant was acquitted on both charges.

The accused was charged with impaired driving and driving with excess alcohol following observations of erratic driving on Highway 400.

The Crown sought to rely on breath test results taken approximately 113 minutes after the alleged offence.

The court addressed three key issues: whether the officer had reasonable and probable grounds to arrest for impaired driving; whether the first breath test was taken within two hours of the offence; and whether the Crown proved impaired driving beyond a reasonable doubt.

The court found reasonable and probable grounds existed, the two-hour requirement was satisfied, and the Crown proved impairment beyond a reasonable doubt based on civilian witness observations of repeated lane weaving, officer observations of physical signs of impairment, and breath test results.

The accused was convicted of sexual assault, sexual interference, and invitation to sexual touching involving a child victim between the ages of 11 and 14 over a period of approximately two years.

The trial judge found the accused guilty based on the credible evidence of the complainant and corroborating witness testimony.

The sexual interference charge was conditionally stayed pursuant to the Kienapple principle.

The accused was sentenced to five years imprisonment for sexual assault with eight months concurrent for invitation to sexual touching, less eight months pre-trial custody, resulting in a net sentence of four years and four months.

Ancillary orders included DNA sampling, lifetime reporting under SOIRA, a lifetime prohibition order under section 161, a contact prohibition, and weapons prohibition orders.

The accused pleaded guilty to assault causing bodily harm after pushing a taxi cab driver on December 31, 2012, causing the driver to fall and fracture his leg.

The Crown sought six months custody followed by probation, while the defence sought a conditional sentence of six to eight months followed by probation.

The court imposed a sentence of four months in custody followed by probation, finding that a conditional sentence was not appropriate given the vulnerability of the victim, the seriousness of the injuries, and the accused's prior assault conviction.

The court also ordered restitution of $2,000.