Brian Osler

An appeal from a conviction under the Motor Vehicle Dealers Act, 2007 for acting as a motor vehicle dealer without being registered.

The trial was conducted ex parte in the absence of the defendant.

The appellate court allowed the appeal and set aside the conviction, finding that the trial judge failed to conduct the required inquiry into whether an ex parte trial was appropriate, particularly given the prosecution's intention to seek a custodial sentence.

The court found that the procedural history demonstrated inadequate notice to the defendant and no proper consideration of the defendant's right to be present at trial, amounting to a miscarriage of justice.

The applicant sought release from custody pending appeal of his convictions for engaging in an unfair practice contrary to the Consumer Protection Act and carrying on business as a motor vehicle dealer without registration contrary to the Motor Vehicle Dealers Act.

The applicant was sentenced to consecutive jail terms totalling approximately 15 months.

The court applied the three-pronged test for release pending appeal: whether the appeal is frivolous, whether the applicant would surrender into custody, and whether detention is necessary in the public interest.

The court found the grounds of appeal were not viable, the applicant presented a flight risk given his history of using aliases and false documents, and detention was necessary in the public interest given the applicant's pattern of repeated offences and lack of diligence in pursuing the appeal.