P. Willis

The accused, L.S., brought a pre-trial application for disclosure and production of third-party records from the Hamilton Police Service (HPS) and the Catholic Children’s Aid Society (CCAS) in a sexual assault and sexual interference prosecution.

The application sought HPS occurrence reports, CCAS records related to the current investigation and prior investigations, and exchanges of information between the Crown, HPS, and CCAS.

The court dismissed the request for HPS records, prior CCAS records, and inter-agency exchanges due to insufficient evidentiary basis and lack of likely relevance.

However, the court ordered the CCAS records already in the Crown's possession, related to the current investigation and specifically concerning the complainant's disclosure of a video of the child, to be produced to the court for review under section 278.5 of the Criminal Code, finding them likely relevant to the complainant's credibility and necessary in the interests of justice.

The accused was charged with impaired driving and operating a motor vehicle with a blood alcohol concentration exceeding 80 milligrams per 100 millilitres of blood.

The defence conceded the necessity of a blood demand and raised a Charter section 8 violation claim, which was abandoned.

The accused advanced a "last drink defence" arguing that her blood alcohol concentration was below the legal limit at the time of driving but rose to illegal levels by the time of testing.

The court rejected the accused's testimony regarding her alcohol consumption pattern and timing, finding it unreliable and inconsistent with her prior statements to police.

The court accepted the toxicologist's evidence that the accused's blood alcohol concentration at the time of driving was between 203 and 251 milligrams per 100 millilitres of blood.

The court found the accused guilty on both counts and stayed one count.

The defendant, an Aboriginal member of the Lac Des Milles Lac First Nation, was found guilty of driving while suspended contrary to s. 53(1) of the Highway Traffic Act.

With 20 prior convictions for the same offence, the Crown sought 30 to 60 days in custody.

The defence argued that Gladue principles should apply to preclude incarceration.

The court found the pre-sentence report with Gladue considerations to be insufficient and deficient in addressing the unique systemic and background factors affecting the Aboriginal offender and the impact of those factors on the defendant.

The court ordered that a stand-alone Gladue report or supplementary report be provided before sentencing could proceed.