Robert B. McGee

The appellant appealed his conviction and sentence, arguing that the trial judge erred in assessing credibility and that a mistrial should have been granted because the trial judge had also presided at the pretrial conference.

The Court of Appeal dismissed the conviction appeal, finding sufficient evidence to support the verdict and noting that no prohibited discussions occurred during the pretrial.

The sentence appeal was also dismissed, with the court upholding the restitution order as a fit component of the sentence.

The appellant was convicted of driving over 80 after registering breathalyzer readings of 229 and 235.

At trial, the defence adduced a toxicologist's report estimating the appellant's blood alcohol concentration at the time of the offence was between 0 and 95 milligrams, depending on his elimination rate.

The trial judge and summary conviction appeal court rejected this as evidence to the contrary.

The Court of Appeal dismissed the appeal, holding that under the amended s. 258(1)(d.1) of the Criminal Code, evidence must show the blood alcohol level was below the legal limit, and evidence that merely straddles the limit is insufficient to rebut the presumption of identity.

The appellant pleaded guilty to impaired driving causing bodily harm and failing to remain at the scene of an accident, receiving an 18-month custodial sentence and a five-year driving prohibition.

The appellant appealed the sentence, arguing for a conditional sentence.

The Court of Appeal dismissed the appeal, holding that the sentence was fit given the appellant's prior impaired driving conviction, high blood alcohol level, and the serious injuries sustained by the victim.