Rick Nathanson

The accused applied for certiorari to quash a committal for trial following a preliminary inquiry on sexual assault charges involving a complainant under 16.

The application argued that the preliminary inquiry judge breached natural justice by refusing to require the complainant to enter the courtroom for cross‑examination after testifying via closed‑circuit television under s. 486.2(1) of the Criminal Code.

The reviewing court held that certiorari is limited to jurisdictional error and that restrictions on cross‑examination must constitute a substantial interference with the accused’s rights to amount to such an error.

The court found the accused had already conducted extensive cross‑examination, including on identification, and the refusal to require an in‑court identification did not substantially impair the defence.

The decision was a proper exercise of discretion and did not amount to a breach of natural justice.

The Crown appealed a decision of the Ontario Court of Justice finding that the court lacked jurisdiction to proceed on an “Over 80” charge under s. 253(1)(b) of the Criminal Code because the accused had not been served with process for that Information.

The appeal court reviewed transcripts of earlier appearances showing that counsel or agents appeared pursuant to a designation while the replacement Information was before the court.

The court held that appearances by designated counsel or agents were legally equivalent to the accused being present and constituted attornment to the court’s jurisdiction, even if formal process requiring attendance had not been issued.

Any defect in process affects jurisdiction over the person only and does not invalidate a facially valid Information charging an offence.

The trial judge erred in concluding that jurisdiction was lost.

The Crown appealed an acquittal for operating a motor vehicle with blood alcohol exceeding the legal limit.

The trial judge had excluded Intoxilyzer results under s. 24(2) of the Charter after finding a breach of s. 8 arising from the administering officer’s failure to consider the possibility of residual mouth alcohol when conducting an approved screening device test at a R.I.D.E. checkpoint.

The appeal court held the trial judge applied the wrong legal test for determining reasonable and probable grounds, failing to properly assess the subjective and objective components outlined in governing jurisprudence.

Given the accused had stated his last drink was 25 minutes earlier and no evidence suggested more recent consumption, a reasonable officer would regard the screening result as reliable.

The acquittal was therefore set aside and a new trial ordered.

The appellant appealed a conviction for impaired driving following a summary conviction trial.

At trial, the court found violations of ss. 8 and 10(b) of the Charter relating to an unlawful strip search and failure to provide an interpreter during the exercise of the right to counsel, and excluded the breath test results under s. 24(2), resulting in an acquittal on the “over 80” charge.

The appellant argued on appeal that the impaired driving conviction was unreasonable and that the proceedings should have been stayed due to the Charter breaches.

The appeal court held that the trial judge’s verdict was supported by the evidence, including eyewitness testimony of erratic driving and police observations of impairment.

The court also held that the trial judge did not err in refusing a stay, given the seriousness of the driving conduct, the availability of other Charter remedies, and the public interest in prosecuting impaired driving.

The appellant appealed his summary conviction for driving with a blood alcohol level over 80 mgs.

He argued the trial judge erred in rejecting his evidence regarding his alcohol consumption and in finding that the roadside screening demand was made forthwith.

The Superior Court of Justice dismissed the appeal, finding no misapprehension of evidence by the trial judge.

The court also held that the 13-minute delay for the arrival of the screening device was reasonable, and even if a section 10(b) Charter breach occurred, the breath sample evidence would not be excluded under section 24(2).

The appellant appealed convictions for sexual assault and sexual interference involving two incidents with a minor complainant, as well as the sentence imposed by the trial judge.

The appellant argued the trial judge improperly relied on similar fact reasoning across counts, failed to consider possible innocent collusion between witnesses, and imposed an excessive sentence.

The Superior Court rejected the conviction appeal, finding the trial judge did not improperly use similar fact evidence and that no evidentiary foundation existed for innocent collusion.

However, the court found an error in principle in sentencing where the trial judge treated the appellant’s exercise of the right to trial and lack of admission of guilt as aggravating factors.

Re‑sentencing afresh, the court reduced the custodial term to a 90‑day intermittent sentence while maintaining the probation and ancillary orders.

The appellant appealed his conviction for refusing to provide a roadside breath sample.

He argued that the trial judge erred in assessing police credibility, that he had a reasonable excuse for refusing the sample due to mistrust of the officer, and that his Charter rights under ss. 8 and 9 were violated by his detention and a strip search at the police station.

The Superior Court of Justice dismissed the appeal, finding no error in the credibility assessment, holding that his subjective mistrust was not an objectively reasonable excuse, and concluding that the detention and strip search were lawful and justified on safety grounds.