Philip Hsiung

This is a sentencing decision following convictions for dangerous driving causing bodily harm and refusing to provide a breath sample.

The defendant caused a collision by speeding and running a red light, resulting in significant injuries to an elderly passenger, though causation of death was not proven.

The jury acquitted the defendant of impaired driving.

The court considered the defendant's pro-social background and remorse against the serious nature of the offences and his poor driving record, including recent breaches of court orders.

The Crown sought a three-year prison sentence, while the defence proposed a conditional sentence.

The court imposed an 18-month custodial sentence for dangerous driving causing bodily harm, a $2,000 fine for the refusal offence, and a total driving prohibition of 2 years and 9.5 months, rejecting a conditional sentence due to the need for denunciation and general deterrence.

The defendant, Gianmarco Di Luciano, was charged with refusal to provide a breath sample causing bodily harm following a motor vehicle collision.

The court, in a judge-alone trial, considered the requisite mens rea for refusal offences under s. 320.15(1) and (2) of the Criminal Code.

The court found that Parliament's 2018 amendment clarified the mens rea to be knowledge that a demand has been made.

The defendant was found to have known a demand was made and refused to comply, thus satisfying the mens rea for refusal simpliciter.

However, the court acquitted the defendant of the aggravated offence of refusal causing bodily harm, finding that the Crown failed to prove beyond a reasonable doubt that the defendant knew or was reckless as to whether the collision resulted in bodily harm, as the risk of injury did not rise above mere speculation given the information available to him at the time of refusal.

The Appellant appealed a conviction for "80+" (over 80 mg of alcohol per 100 mL of blood) under the Criminal Code, challenging the validity of breath demands and alleged violations of Charter rights (s. 8 and s. 10(b)).

The Appellant argued that breath samples were not taken "as soon as practicable," that demands were invalid due to her panicked state, and that her right to counsel was breached (informational and implementational components, including denial of direct third-party contact and "steering" to duty counsel).

The Superior Court dismissed the appeal, upholding the trial judge's findings that the samples were taken reasonably promptly, the demands were valid, and the Charter rights were not violated, deferring to the trial judge's factual determinations based on video evidence.

The defendant, Gianmarco Di Luciano, brought a motion to re-open a pre-trial Charter application, seeking to exclude evidence of his refusal to provide a breath sample.

The basis for the motion was an alleged material change in circumstances, specifically that the arresting officer, PC Shannon Swiderski, had embellished her testimony at trial regarding the odour of alcohol, thereby undermining her credibility and the lawfulness of the initial arrest and subsequent breath demand.

The court found that while the officer's trial testimony was indeed an embellishment, it did not constitute a material change that would have likely altered the original finding that she had honest, subjective, and objectively reasonable grounds for the arrest and breath demand.

Consequently, the motion to re-open the Charter application was dismissed.

The accused, charged with multiple counts including impaired operation and refusing to provide a breath sample causing death and bodily harm, brought a pre-trial application seeking to quash, amend, or sever the refusal counts.

The court dismissed the request to quash the counts based on issue estoppel and rejected the argument that the Crown was limited to a single refusal count under s. 320.15(4) of the Criminal Code.

However, the court granted the application to sever the refusal counts from the impaired and dangerous operation counts, finding that the interests of justice favoured severance to allow the accused to testify on the refusal counts without prejudice to the remaining charges.

The defendant, Gianmarco Di Luciano, on trial for dangerous and impaired operation of a motor vehicle causing bodily harm and death, applied for a directed verdict on the counts alleging bodily harm to two victims.

The Crown's case was in, and the defence argued that the evidence of soft tissue injuries and psychological sequelae was insufficient to establish 'bodily harm' as defined in the Criminal Code, and that objective foreseeability of injury was required.

The court dismissed the motion, finding that objective foreseeability of bodily harm is not an essential element for dangerous or impaired driving causing bodily harm offences, citing R. v. Creighton and R. v. K.L. While agreeing with the Crown that psychological injuries would not be considered for this ruling, the court found sufficient evidence from the victims' self-reports of physical injuries to allow the jury to consider the bodily harm counts.

The accused was charged with impaired operation causing death and refusing to provide a breath sample following a serious motor vehicle collision.

He brought pre-trial applications alleging multiple Charter breaches and seeking to exclude evidence of his refusals to provide breath samples and data seized from his vehicle's Airbag Control Module.

The court found breaches of s. 8 (unlawful roadside breath demand), s. 9 (unjustified continued detention), and s. 10(b) (failure to hold off questioning).

Applying s. 24(2) of the Charter, the court excluded the accused's refusals at the roadside and in the booking area.

However, the court found that a subsequent demand by a breath technician constituted a 'fresh start' and admitted the final refusal.

The application to quash the search warrant for the vehicle data was dismissed.

This decision addresses a question of law that arose during a jury trial concerning the interpretation of causation under s. 320.14(3) of the Criminal Code, which pertains to impaired driving causing death.

The Crown argued for a temporal link between the impairment/illegal blood alcohol concentration (BAC) and the accident resulting in death, asserting that no causal link between the impairment itself and the accident was required.

The court rejected this interpretation, holding that the offence requires a causal link, meaning the impairment or illegal BAC must be a significant contributing cause of the accident that resulted in death.

The court emphasized the need for moral blameworthiness to be connected to the serious consequences of the offence.

The appellant appealed his conviction for 'Over 80', arguing that the trial judge erred in failing to find a breach of his s. 10(b) Charter right to counsel, misapprehended evidence, and failed to conduct a proper s. 24(2) analysis.

The appellant claimed his right to consult a third party (his wife) regarding counsel was infringed.

The Superior Court of Justice dismissed the appeal, finding no palpable or overriding error in the trial judge's conclusion that the police provided adequate opportunity for the appellant to consult his wife and did not interfere with his right to counsel of choice.

The court also held that even if a breach occurred, the evidence would not be excluded under the Grant framework.

The appellant was convicted of refusing to comply with an approved screening device demand at a RIDE check.

On appeal, he argued that the trial judge provided insufficient reasons by failing to address the investigating officer's failure to record the interaction, and that the trial judge misapplied the W.(D.) framework when assessing credibility.

The Superior Court of Justice dismissed the appeal, finding that the trial judge's reasons were sufficient when read in the context of the trial record, and that there was no error in the application of the burden of proof or the assessment of the evidence.

The accused, Ramsey Safieh, was charged with dangerous operation of a conveyance, failing to comply with probation, and operating a conveyance while prohibited, following a hit-and-run incident.

The sole issue at trial was the identification of the driver.

The court found that the Crown had not proved the identification of the driver beyond a reasonable doubt, despite the officers' credible testimony, due to factors such as brief viewing time in darkness, lack of detailed description, and absence of pre-trial identification procedures.

The circumstantial evidence, including the accused's past address and flight, was found to add little to the Crown's case.

Consequently, all charges were dismissed.

The appellant, De Shen, appealed his conviction for impaired driving.

The trial judge had found him guilty of impaired driving but not guilty of driving with a blood alcohol concentration over 80 mg.

On appeal, the appellant argued that his Charter rights under sections 10(a) and 10(b) were infringed, and that the trial judge erred in assessing the evidence of impairment by dismissing the possibility of illness as speculative.

The court found that the police lawfully detained the appellant under the Highway Traffic Act, suspending his s. 10(b) rights at the roadside.

It also found that the appellant failed to establish a proper evidential basis for his claim that his s. 10(b) rights were infringed at the police station regarding counsel of choice.

While the trial judge erred in law by dismissing the illness defence as speculative due to lack of evidence, the appellate court applied the curative proviso, concluding that there was no reasonable possibility the verdict would have been different given the overwhelming evidence of impairment by alcohol.

The appeal was dismissed.

The accused was charged with impaired operation and "over 80" operation of a motor vehicle following a traffic stop on Highway 404.

The Crown relied on breath test results showing blood alcohol concentrations of 150 mg/100ml and 140 mg/100ml.

The defence challenged the lawfulness of the arrest and breath demand under sections 8 and 9 of the Charter, alleging the arresting officer lacked reasonable grounds.

The defence also alleged a breach of section 10(b) rights regarding privacy during consultation with duty counsel.

The trial judge found the officer's testimony regarding grounds for arrest was riddled with anomalies, implausibilities, and internal inconsistencies, and rejected most of the officer's evidence concerning indicia of impairment.

The court found the officer lacked reasonable grounds for the arrest and breath demand, constituting a Charter breach.

The court excluded the breath test results under section 24(2) of the Charter, finding the breach was serious and compounded by misleading testimony.

Without the breath evidence, the Crown could not prove impaired operation beyond a reasonable doubt.

Both charges were dismissed.

The accused was charged with operating a motor vehicle with a blood alcohol level in excess of the legal limit (Over 80) contrary to s.253(1)(b) of the Criminal Code.

The defence brought a Charter voir dire alleging multiple breaches of the accused's rights under sections 7, 8, 9, and 10(b) of the Canadian Charter of Rights and Freedoms, seeking exclusion of the breath test evidence.

The court found that while there was a minor breach of s.10(b) regarding the timing of right to counsel advice, this breach had no impact on the Charter protected rights of the accused and did not warrant exclusion of evidence under s.24(2).

The remaining alleged Charter breaches were not proven on the balance of probabilities.

The Crown proved the charge beyond a reasonable doubt.

The defendant was charged with driving with excess alcohol after failing an Approved Screening Device test and subsequently providing a breath sample of 160 milligrams per 100 millilitres of blood.

The defendant brought multiple Charter challenges, including challenges to the lawfulness of the traffic stop, the timing of the ASD demand, compliance with section 254(2)(b) of the Criminal Code, and alleged violations of rights to counsel.

The court rejected all Charter applications and found the defendant guilty of the offence.

The accused was convicted at trial of Impaired Operation Causing Bodily Harm and Dangerous Operation Causing Bodily Harm following a high-speed crash that resulted in life-threatening injuries to a front-seat passenger and serious injuries to another passenger.

The court rejected the defence argument that the Kienapple rule precluded multiple convictions, finding the offences distinct as they address different aspects of road safety.

The court imposed an 18-month custodial sentence for dangerous driving (with 12 months concurrent for impaired driving), followed by 18 months probation, a 3-year driving prohibition, and a DNA order.

The court balanced significant aggravating factors including the extreme speed, severity of injuries, and the accused's recent warning about drinking and driving against mitigating factors including his youth, good character, and low blood alcohol level.

The accused was charged with impaired operation causing bodily harm, dangerous operation causing bodily harm, and impaired operation following a serious motor vehicle collision that resulted in life-threatening injuries to passengers.

The Crown's case relied on expert toxicology evidence establishing a projected blood alcohol concentration of 66-96 mgs/100ml at the time of driving, the manner of driving, and accident reconstruction evidence.

The defence argued that the absence of physical indicia of impairment created reasonable doubt.

The court found that the accused's driving demonstrated mental impairment consistent with alcohol consumption, including failure to perceive the need to slow speed and failure to react to wet road conditions.

The court convicted on all three counts.

The accused was charged with operating a vehicle while impaired by alcohol and refusing to provide a breath sample.

The Crown proved beyond a reasonable doubt that the accused's ability to operate her vehicle was impaired by alcohol consumption based on credible evidence from police officers and an independent witness.

However, the Crown failed to prove the refusal charge.

The court found that given the extent of the accused's intoxication and resulting mental confusion and disorientation at the time of the breath demand, a reasonable doubt existed regarding the mental element of the refusal offence.

The accused was found guilty of impaired driving but acquitted of the refusal charge.

The court ruled on the admissibility of a statement given by the accused to police investigating a serious motor vehicle accident.

The Crown sought to establish that the statement was voluntary, while the defence challenged its admissibility on the grounds that the accused was detained without being advised of his Charter rights to counsel.

The court found that the statement was voluntary and that no detention occurred, making the statement admissible in evidence.

The accused was stopped at a mobile RIDE check, failed two Approved Screening Device tests, and was charged with driving with a blood alcohol concentration in excess of the legal limit.

The defence raised five Charter issues: whether the officer had reasonable suspicion for the ASD demand based on odour of alcohol; whether an informal demand satisfied s. 254(2); whether the officer's failure to wait the full 15 minutes before the second ASD test was objectively unreasonable; whether s. 10(b) requires expanded information about accessing private counsel; and whether the officer undermined solicitor-client privilege by referring to legal advice during the Approved Instrument demand.

The court dismissed all Charter applications and found the Crown proved the elements of the offence beyond a reasonable doubt.