Robert W. Beninger

The accused was charged with operating a motor vehicle while having over 80 milligrams of alcohol in 100 millilitres of blood.

Following a roadside screening device failure, the accused was arrested and requested access to French-speaking duty counsel.

A two-hour delay occurred before a French-speaking duty counsel became available.

The court found this delay constituted a breach of the accused's section 10(b) Charter right to retain and instruct counsel without delay.

Applying the Grant test, the court excluded the breath sample evidence as admission would bring the administration of justice into disrepute.

The charge was dismissed.

The accused was originally charged with second-degree murder in the death of his son but pleaded guilty to manslaughter.

The Crown sought a penitentiary sentence, while the defence sought a non-custodial sentence.

The court found that the accused's wrongful conduct was in mixing alcohol with prescription sleeping pills, which he knew he should not do.

The court determined this was an exceptional case where denunciation and general deterrence could be achieved without further custody, given the accused's approximately one year of pre-trial credit, his lack of criminal record, his remorse, and the absence of any history of conflict with the victim.

The court imposed a suspended sentence with maximum probation and community service.

The accused entered a guilty plea to trafficking fentanyl under s. 5(1) of the Controlled Drugs and Substances Act.

The Crown sought 30 months imprisonment, while the defence sought a time-served disposition.

The court imposed a time-served sentence (434 days pre-trial custody credited at 1.5:1 ratio = 651 days or 21.75 months), 12 months probation, and ancillary orders under s. 109 and DNA.

The court considered the extreme dangers of fentanyl, the accused's criminal history including prior drug trafficking convictions, but also the mitigating factors of guilty plea and the fact that only one patch was trafficked on one occasion.

The applicants challenged the constitutionality of amendments to section 737 of the Criminal Code that removed judicial discretion and made the victim surcharge mandatory.

The court found that the mandatory imposition of the surcharge, where no fine is imposed, violates section 7 of the Charter by negatively impacting security of the person.

The removal of judicial discretion was found to be arbitrary, overreaching, and grossly disproportionate to the legislative goal of increasing offenders' accountability to victims.

The violation could not be justified under section 1 of the Charter.

The court declared the mandatory surcharge provisions to be of no force and effect.