R. Conway

The defendant was charged with operating a conveyance with a blood alcohol concentration exceeding 80 mg within two hours of ceasing to operate it, contrary to s. 320.14(1)(b) of the Criminal Code.

The defendant brought a Charter application, arguing a violation of his s. 10(b) right to counsel for being denied re-consultation after providing the first breath sample.

The court dismissed the Charter application, finding no objective change in circumstances (new procedure, change in jeopardy, or deficient initial advice) as per R. v. Sinclair and R. v. Tahmasebi.

On the merits, the defence conceded all elements except the Crown's failure to prove the time the defendant ceased operating the conveyance.

The court held that the Crown must establish, directly or indirectly, whether the first breath sample was taken within two hours of driving ceasing to satisfy s. 320.14(1)(b) or to rely on the presumption in s. 320.31(4).

As the Crown failed to prove the time of driving, the charge was dismissed.

The moving defendants sought dismissal of an action after the plaintiff failed to diligently pursue litigation that had been struck from the trial list.

The court considered whether the plaintiff’s motion to restore the action should be dismissed due to delay under the test articulated in prior jurisprudence.

The court found a total delay of approximately 4.5 years, including failure to follow up with the court, failure to comply with prior court orders regarding undertakings, and prolonged inaction following cross-examinations.

The delay was found to be intentional and contumelious, and also inordinate and inexcusable, giving rise to a presumption of prejudice which the plaintiff failed to rebut.

The motion to restore the action and the action itself were dismissed.