Robert Daniel Wulkan

The Ontario Court of Justice considered whether the failure of a police officer to specify the exact model number of an approved screening device (ASD) used to test blood alcohol content undermined reasonable grounds for arrest.

The Court relied on precedent from R. v. Gundy to hold that the officer’s testimony that an approved device was used, absent credible contradictory evidence, suffices to establish reasonable grounds.

The Court also addressed whether the arrest was unlawful because it was made for impaired driving rather than excess blood alcohol, concluding the arrest was lawful given the totality of circumstances and the officer’s subjective belief.

Finally, the Court examined alleged breaches of the right to counsel under s. 10(b) of the Charter, finding no breach where the accused was promptly given access to duty counsel despite some problematic comments by the breath technician.

The accused was found guilty beyond a reasonable doubt.

The Appellant appealed a conviction for "80+" (over 80 mg of alcohol per 100 mL of blood) under the Criminal Code, challenging the validity of breath demands and alleged violations of Charter rights (s. 8 and s. 10(b)).

The Appellant argued that breath samples were not taken "as soon as practicable," that demands were invalid due to her panicked state, and that her right to counsel was breached (informational and implementational components, including denial of direct third-party contact and "steering" to duty counsel).

The Superior Court dismissed the appeal, upholding the trial judge's findings that the samples were taken reasonably promptly, the demands were valid, and the Charter rights were not violated, deferring to the trial judge's factual determinations based on video evidence.

The defendant, Adnan Alex Refaeh, was convicted by a jury of dangerous driving causing bodily harm and failing to remain at the scene of an accident where bodily harm was caused.

The Crown sought a penitentiary term of 30-36 months, while the Defence requested a conditional sentence or a short intermittent jail term.

The court found that Refaeh engaged in a prolonged high-speed street race, which was particularly dangerous given the urban setting, and that his subsequent actions were aimed at evading criminal liability, not driven by fear.

The victim, a 13-year-old at the time, suffered serious, long-lasting injuries.

Considering aggravating factors such as the prolonged street race, prior driving infractions, and post-offence cover-up attempts, alongside mitigating factors like youth, lack of prior criminal record, and remorse, the court rejected a conditional sentence.

A global sentence of 15 months imprisonment was imposed (12 months for dangerous driving causing bodily harm, 3 months consecutive for failing to remain), along with a 3-year driving prohibition, emphasizing denunciation and general deterrence.

This decision addresses the burden of proof for the statutory defence of "reasonable excuse" under s.320.16 of the Criminal Code, following a jury conviction for dangerous driving causing bodily harm and failure to stop after an accident.

The Crown argued the accused bore the persuasive burden, while the defence contended it was merely an evidential burden, with the Crown bearing the ultimate persuasive burden.

The court ruled that the Crown bears the ultimate persuasive burden of disproving the existence of a reasonable excuse beyond a reasonable doubt, finding that Parliament intended to remove the reverse onus with the repeal of s.794(2) of the Criminal Code.

The accused, Sethuraman Sarvanantharajah, was charged with impaired operation and operation over the legal limit after striking a parked car.

The court addressed several issues, including the time of driving, proof of impairment, reasonable grounds for arrest, and alleged breaches of Charter rights under sections 8, 9, and 10(b).

The court found that the Crown proved the time of driving and impairment beyond a reasonable doubt, and that the arresting officer had reasonable grounds.

Furthermore, the court determined there was no unreasonable delay in contacting counsel and that the police were not obligated to provide detailed grounds for arrest to counsel during the initial consultation, as such information could be obtained from the client or through disclosure.

The accused was found guilty of both charges, with a conditional stay on the impaired driving charge.

The accused, Liam McCudden, brought an application for a stay of proceedings under section 11(b) of the Charter, alleging unreasonable delay in his trial for impaired driving and stunt driving.

The court calculated the total delay from the date the informations were sworn (July 28, 2020) to the anticipated end of trial (March 23, 2022), totaling 19.9 months.

After deducting 35 days of defence delay attributed to a frivolous Charter application, the net delay was 18.7 months, exceeding the 18-month presumptive ceiling for provincial court cases.

The Crown failed to provide sufficient evidence to establish that the delay between the Crown pre-trial and the judicial pre-trial was an exceptional circumstance caused by the COVID-19 pandemic.

Consequently, the court found a breach of the accused's right to be tried within a reasonable time and entered a stay of proceedings.

The defendant was charged with impaired driving and driving with excess blood alcohol concentration following a traffic stop in the early morning hours.

The Crown proved beyond a reasonable doubt that the defendant's ability to operate a motor vehicle was impaired by alcohol to any degree, based on the totality of evidence including observations of physical signs of impairment, inconsistent statements regarding the route driven and alcohol consumption, and the defendant's own acknowledgment that he knew he had consumed too much alcohol to drive safely.

The Crown also established compliance with the statutory prerequisites under section 320.31 of the Criminal Code for relying on the Certificate of Qualified Technician to prove blood alcohol concentration.

The defendant was found guilty on both counts.

The defendant was charged with impaired operation of a motor vehicle by a drug.

The defendant requested rolling logs as part of disclosure.

The Crown denied the request on two grounds: (1) new evidence demonstrated the rolling logs were not relevant, and (2) new legislation prohibited their disclosure.

The court considered whether it could revisit binding precedent from R. v. Stipo, which held that rolling logs are relevant and must be disclosed.

The court applied the doctrine of stare decisis and the exceptions to revisiting binding authority, finding that neither the new evidence nor the legislative changes met the high threshold required to depart from precedent.

The court granted disclosure of the rolling logs.

The accused was charged with impaired driving (by alcohol) and over 80 mg/100 mL of blood.

The trial involved multiple Charter applications including a section 11(b) unreasonable delay application, sections 8 and 9 arbitrary detention and unreasonable search applications, and a section 10(b) right to counsel breach arising from the inadvertent audiotaping of the accused's call with duty counsel.

The court found no breach of section 11(b) rights, no breach of sections 8 and 9 rights, but did find a breach of section 10(b) rights.

However, applying the section 24(2) analysis, the court admitted the breath test evidence.

The accused was convicted of impaired care or control but acquitted of the over 80 charge due to reasonable doubt regarding the reliability of the breath technician's evidence concerning the alcohol standard used to calibrate the Intoxilyzer.

The accused was charged with operating a motor vehicle while impaired by alcohol and operating a motor vehicle with a blood alcohol concentration exceeding the legal limit.

The Crown alleged that on October 14, 2015, the accused operated a vehicle while impaired.

The court examined whether the arresting officer had reasonable and probable grounds to arrest the accused, whether any Charter violations occurred, whether the Crown could rely on the presumption of identity under section 258(1)(c) of the Criminal Code, and whether the Crown proved impairment beyond a reasonable doubt.

The court found the arresting officer had proper grounds based on poor driving, slurred speech, odour of alcohol, and bloodshot eyes.

The court admitted the breath sample evidence and found the approved instrument was functioning properly.

The accused was found guilty of both offences.

The accused was charged with operating a motor vehicle with over 80 mg of alcohol in 100 ml of blood.

Following a domestic incident call and traffic stop, police conducted a roadside approved screening device test which resulted in a fail.

The accused was arrested and provided two breath samples at the detachment with readings of 100 mg and 90 mg.

The defence challenged the admission of the certificate of analysis on multiple Charter and non-Charter grounds, including the timing of the roadside demand, the legality of the warrantless search and seizure, the proper operation of the intoxilyzer, and the availability of remedies under sections 24(1) and 24(2) of the Charter.

The court found no Charter violations and admitted the evidence, finding the accused guilty beyond a reasonable doubt.