Court File and Parties

Court File No.: CR-23-11401993-00AP Date: 2024Nov12

Ontario Superior Court of Justice Summary Conviction Appeal Court

Between: His Majesty The King – and – Darrell Bartraw

Counsel: Michael P. Michaud, for the Appellant James Foord, for the Respondent

Heard: October 23, 2024

Before: Carey J.

Reasons for Decision

(on appeal from the decision of Crewe J. dated February 13, 2024)

[1] Counsel are agreed that the trial judge was in error in finding a s.10(b) breach, and therefore, the acquittal should be vacated. There is disagreement on whether there should be a conviction registered on the “80+” offense or a new trial ordered.

[2] It is agreed that this Summary Conviction Court is permitted to conduct a fresh s.24(2) analysis if the record is sufficient and is bound by the trial judge’s factual findings. The Crown asserts that the trial record is sufficient.

[3] The Respondent defendant asserts that as a result of the trial judge’s admitted error in excluding the evidence without notifying counsel or inviting them to make submissions, there is an insufficient record for review.

[4] Charter rights under s.10, unlike sections 7-9 which concern “everyone”, are limited to those “under arrest or detention”. Any finding that those rights were infringed or denied are contingent, as a starting point, on findings of fact made by the trier. These facts must include but are not limited to, a finding that a defendant seeking a remedy for a breach under s. 24 was under arrest or detention.

[5] A condition precedent to any remedy involving exclusion of evidence is “if it is established that, having regard to all the circumstances, the admission of it in the proceedings would bring the admission of justice into disrepute”.

[6] The Crown urges, among other things, that this court must consider the public interest in having the excluded evidence in this case admitted. It urges admission of the Breathalyzer reading and the registering of a conviction. Doing so would recognize the proven accuracy of breathalyzers and the seriousness of drinking and driving offences.

[7] The Crown Factum makes references to over 120 cases: the Defense Factum, to 33 cases. Some of the cases are familiar to this court, the majority are not.

[8] Based on my experience in practice and on this bench; most simple impaired driving, 80+ cases in Ontario proceed summarily in the Ontario Court of Justice. The Superior Court, when exercising its criminal jurisdiction, largely deals with more serious driving offences involving bodily harm or death, s. 469 offences with and without a jury, sexual crimes and serious drug offences under the CDSA.

[9] The Ontario Court of Justice has necessarily developed through the volume of drinking and driving cases it hears, an expertise in the analysis the Crown urges this Court to undertake here, and the Charter issues that arise. This expertise would, in my view, also result in a more efficient use of strained judicial resources.

[10] For the reasons argued by the Respondent and highlighted earlier, as well as my expertise and efficiency concerns outlined above, while the acquittal is ordered set aside, I decline to register a conviction and remand this case back to Ontario Court of Justice for a new trial.

Carey J. Released: November 12, 2024