Richard G. Floyd

The appellant appealed his conviction for operating a motor vehicle with a blood alcohol concentration over 80 milligrams.

The trial took place after the Bill C-46 amendments to the Criminal Code came into force, making it a transitional case.

The Crown relied on the testimony of a breath technician but failed to provide a certificate of an analyst or sufficient viva voce evidence regarding the certification of the alcohol standard used to calibrate the breathalyzer.

The Superior Court of Justice held that the Crown failed to meet its evidentiary burden to rely on the presumption of accuracy under s. 320.31(1) or to prove the offence at common law.

The appeal was allowed and the conviction was set aside.

The accused was charged with sexual assault and choking to facilitate sexual assault following an encounter that began as a consensual meeting arranged through an online dating site.

The evidence showed the accused became increasingly intoxicated and engaged in escalating aggressive sexual behaviour, including slapping, choking, and threats, culminating in a final sexual encounter found to be non-consensual.

The court relied on the complainant’s testimony, corroborating text messages, medical evidence of bruising, and admissions in the accused’s police interview.

The court rejected the possibility of an honest but mistaken belief in consent, finding that any such belief would have arisen from recklessness and self‑induced intoxication and that the accused took no reasonable steps to ascertain consent.

The accused was found guilty of sexual assault and choking to assist sexual assault.