S. Menzies

The appellant appealed his conviction for driving 'over 80'.

At trial, the evidence showed a 33-minute unexplained gap between the conclusion of the appellant's call to duty counsel and the taking of his first breath sample.

The trial judge held this gap did not defeat the 'as soon as practicable' requirement under s. 258(1)(c)(ii) of the Criminal Code.

On appeal, the Superior Court found that because there was no evidence or judicial findings explaining the 33-minute delay—which constituted one-third of the total time from the traffic stop to the first sample—the Crown failed to prove the police acted reasonably and promptly.

The appeal was allowed and an acquittal entered.

The appellant appealed summary conviction findings of guilt for impaired operation of a motor vehicle and operating with excess blood alcohol.

He argued the trial judge erred in finding the arresting officer had reasonable and probable grounds to arrest, misapprehended the evidence, and improperly assessed credibility in rejecting his testimony about the implementation of his right to counsel under s. 10(b) of the Charter.

The court held that the trial judge correctly applied the legal test for reasonable and probable grounds and did not misstate the evidence regarding observations of impairment.

The trial judge’s credibility findings were entitled to deference and disclosed no palpable or overriding error.

The evidence, including observations of impairment and intoxilyzer readings, supported the conviction beyond a reasonable doubt.

The appellant appealed convictions for impaired driving and operating a motor vehicle with blood alcohol exceeding the legal limit, arguing that the verdicts were unsupported by the evidence and that the trial judge erred in credibility findings, the application of the W.(D.) test, and the dismissal of a Charter application under ss. 10(b) and 24(2).

The appellant also argued that the absence of video recording equipment in the police breath room should have led to adverse inferences against the Crown’s evidence.

The appeal court held that the trial judge made no palpable or overriding errors of fact and correctly applied the relevant burdens and standards of proof.

The court found that credibility findings and the assessment of the absence of video evidence were matters within the trial judge’s discretion and entitled to deference.

The convictions were supported by the evidence, and no miscarriage of justice was established.