Richard John Garrett

The accused, Jessica Werpny, was charged with impaired operation of a motor vehicle and operating with a blood alcohol concentration (BAC) over 80 mg per 100 ml of blood.

The key issues were whether the Crown could prove beyond a reasonable doubt that the accused was operating the vehicle and whether the accused could rely on the statutory exception under section 320.14(5) of the Criminal Code, which applies if alcohol was consumed after ceasing to operate the vehicle.

The court found that the accused remained in care and control of the vehicle and did not cease operating it, despite being stuck and consuming alcohol while seated in the driver's seat.

The presumption under section 320.35 applied and was not rebutted.

The accused was found guilty of the over 80 offence but not guilty of impaired operation, as the Crown failed to prove impairment beyond a reasonable doubt.

The appellants were convicted of offences arising from a residential break-in involving assault and property damage.

They appealed on four grounds: conflict of interest of trial counsel for one appellant, erroneous evidentiary rulings regarding prior inconsistent statements, reliance on inadmissible identification and hearsay evidence, and trial proceedings conducted in the absence of one appellant.

The Crown conceded all grounds of appeal and acknowledged that a miscarriage of justice occurred due to cumulative legal errors and the conflict of interest.

The appellate court allowed the appeals, set aside the convictions, and ordered a new trial, expressing trust that the Crown would exercise discretion to enter a stay of proceedings.