Philip A. Perlmutter

The accused was charged with impaired operation of a vessel causing death.

The trial judge excluded breath test evidence under s. 24(2) of the Charter, finding breaches of ss. 8, 9, and 10(b) due to delays in making and facilitating an approved screening device demand, and acquitted the accused.

The Crown appealed.

The Court of Appeal held that the trial judge erred in finding the accused was detained before the demand was made and in his application of the s. 24(2) Grant framework.

The Court concluded that the admission of the breath test evidence would not bring the administration of justice into disrepute.

The appeal was allowed and a new trial ordered.

The appellant appealed his conviction and sentence for wounding following a jury trial.

He argued the trial judge erred in the jury charge regarding consent, party liability under sections 21(1) and 21(2) of the Criminal Code, and the offence of assault.

The Court of Appeal dismissed the conviction appeal, finding any error regarding consent was harmless as it was unavailable on the facts, and the party liability instructions were unobjectionable.

The sentence appeal was also dismissed, as the sentence properly reflected the appellant's significant record for violence.

The Crown appealed a conditional sentence of two years less a day imposed on an offender with 14 prior convictions for drinking and driving.

The Court of Appeal held that a conditional sentence is not statutorily foreclosed where the Crown fails to serve notice of increased penalty under s. 727 of the Criminal Code.

However, the trial judge erred in imposing a conditional sentence given the offender's extensive record.

The Court found a fit sentence would be 12 months in custody, but given the pre-trial custody and the 14 months of the conditional sentence already served under strict conditions, the sentence was varied to time served, plus a lifetime driving prohibition and three years' probation.