Breana Vanderbeek

The defendant, charged with first-degree murder, brought a pre-trial motion (voir dire) to exclude a statement given to police, arguing a violation of his s.10(b) Charter right to counsel.

The police denied his request to contact his stepmother to arrange counsel of choice, instead directing him to duty counsel.

The court found that the police officer's denial was a clear violation of the well-established duty to facilitate access to counsel, even through a third party, and that the defendant was not reasonably diligent in renewing his request because the officer's initial response was a clear "no." Applying the R. v. Grant factors under s.24(2) of the Charter, the court found the breach serious, the impact on the defendant's Charter-protected interests significant (as it affected his ability to make an informed choice with trusted counsel), and the societal interest in adjudication on the merits did not outweigh the breach given the statement's questionable necessity.

Consequently, the January 25, 2018 statement was excluded.

The appellant appealed his convictions for sexual interference, invitation to sexual touching, and sexual assault of his step-granddaughter, who was approximately nine years old at the time of the offences.

The trial judge admitted similar fact evidence from two adult nieces of the appellant who testified to similar inappropriate touching when they were children.

The appellant raised four grounds of appeal: (1) erroneous admission of similar fact evidence due to collusion; (2) failure to properly address material inconsistencies in the complainant's testimony and over-reliance on demeanour; (3) impermissible inference of guilt from rejection of the appellant's testimony; and (4) unsafe and unreasonable verdict.

The Court of Appeal dismissed all grounds of appeal and upheld the convictions.

The detainee applied for habeas corpus with certiorari in aid seeking release from immigration detention pending execution of a deportation order under the Immigration and Refugee Protection Act.

The Attorney General of Canada moved to stay the application under s. 106 of the Courts of Justice Act on the basis that the matter should proceed in the Federal Court.

The court held that the Federal Court was the appropriate forum because Parliament created a comprehensive statutory scheme for review of immigration detention decisions, including judicial review in that court.

The detainee already had an active Federal Court proceeding seeking similar relief, and the Federal Court possessed expertise and comparable ability to address the issues.

The Ontario Superior Court therefore exercised its discretion to decline jurisdiction and stayed the habeas corpus application.

The court considered whether to award costs to the Attorney General following proceedings involving a detained individual seeking relief relating to immigration detention.

Although the court accepted it had jurisdiction to award costs to the Attorney General, it declined to do so.

The judge found the application was not an instance of forum shopping and acknowledged the applicant’s frustrations arising from dealings with the Immigration Division.

Given the circumstances surrounding detention and the applicant’s attempt to seek relief, the court exercised its discretion not to award costs.