David Anber

The applicant, a former provincial legislator charged with offences related to the Freedom Convoy protest, applied for a change of venue from Ottawa, arguing pervasive bias prevented a fair trial.

The Crown argued the court was bound by a prior coordinate decision denying a change of venue for another convoy participant.

The court found it was not bound by the prior decision due to significant differences in evidence, notably a targeted social media campaign against the applicant.

However, the court dismissed the application, concluding that existing procedural safeguards, including robust jury screening, were sufficient to ensure a fair trial.

The appellant appealed his conviction for driving with a blood alcohol concentration over 80mg%.

He argued that the trial judge erred in finding that the breathalyzer technician had formed his own reasonable and probable grounds for the breathalyzer demand, and that he was arbitrarily detained between his arrest and the breathalyzer demand.

The Superior Court of Justice dismissed the appeal, finding no misapprehension of evidence regarding the technician's grounds and concluding that the detention was lawful under s. 497(1.1) of the Criminal Code to secure evidence.

The Crown appealed the respondent's acquittal on impaired driving charges, arguing the trial judge erred in finding a breach of s. 10(b) of the Charter and in excluding breathalyzer evidence under s. 24(2).

The trial judge had found breaches of ss. 8, 9, and 10(b) due to a four-minute delay in making an ASD demand and a six-minute delay in reading rights to counsel.

The Superior Court upheld the s. 10(b) breach finding but concluded the trial judge erred in her s. 24(2) analysis by failing to assess the specific impact of the ss. 8 and 9 breaches on the respondent's Charter-protected interests, instead relying solely on the cumulative effect of multiple breaches.

The appeal was allowed and the matter remitted for a limited trial on the s. 24(2) analysis.

The appellant appealed her conviction for fleeing the scene of an accident.

At trial, the only evidence identifying her as the driver was her confession to the arresting officer.

The Crown did not hold a voir dire to prove the voluntariness of the confession, and the defense moved for a non-suit after the Crown closed its case.

The trial judge dismissed the motion, relying on evidence from a pre-trial application that was not blended into the trial.

The Superior Court of Justice allowed the appeal, finding that admitting the confession without a voir dire was a fundamental error and that the conviction was unreasonable without admissible evidence identifying the appellant as the driver.

An acquittal was ordered.

The appellant appealed his convictions for assault causing bodily harm and breach of recognizance arising from a parking lot altercation.

The trial judge had ruled that the complainant could not have consented to a fight because of the nature of the injuries sustained.

The appeal court found this was an error of law, as one cannot consent to the intentional infliction of bodily harm, but the mere fact that bodily harm resulted does not automatically vitiate consent.

The court declined to apply the curative proviso under s. 686(1)(b)(iii) of the Criminal Code, set aside the convictions, and ordered a new trial.

The offender was convicted of human smuggling under the Immigration and Refugee Protection Act for his role as a courier transporting undocumented individuals from the US border to Toronto.

The Crown sought a 12-month custodial sentence, while the defence sought a 15-month conditional sentence.

The court weighed the aggravating factors of the organized nature of the scheme and the exploitation of his brother against mitigating factors including a positive pre-sentence report, financial desperation, and lack of related criminal record.

The court concluded that a 15-month conditional sentence, followed by two years of probation, would adequately address denunciation and deterrence.

The appellant appealed her conviction for dangerous operation of a motor vehicle, arguing the trial judge erred in assessing eyewitness identification evidence, rendered an unreasonable verdict, and provided insufficient reasons.

The Superior Court of Justice dismissed the appeal, finding the trial judge's reasons were clear, logical, and demonstrated an awareness of the frailties of eyewitness evidence.

The court concluded the identification evidence, supported by circumstantial factors such as the driver's physical description and a distinct limp, reasonably supported the conviction.

The accused was sentenced following jury convictions for assault causing bodily harm and two counts of forcible confinement, along with a guilty plea to assault.

The offences arose from a vigilante-style attack in which the accused and several associates forcibly removed two individuals from a nightclub and violently assaulted them in an alley after suspecting them of vandalizing a vehicle.

The assault resulted in severe and permanent injuries, including a traumatic brain injury and significant psychological disorders.

The court emphasized denunciation and general deterrence given the planned, group-based nature of the revenge attack and the profound harm to the victim.

After weighing aggravating and mitigating factors, the court imposed a global custodial sentence of three and a half years.

Following a jury verdict finding the accused guilty of assault causing bodily harm and forcible seizure, and a guilty plea to a further assault charge, the Crown applied under s. 523(1)(b)(ii) of the Criminal Code to revoke the accused’s bail pending sentencing.

The court considered the seriousness of the violent offences, the significant and permanent injuries suffered by the victim, and the prospect of a substantial custodial sentence.

The court also reviewed the accused’s prior criminal record, outstanding charges for a similar group assault while on recognizance, and concerns about the adequacy of a proposed surety.

While primary grounds for detention were minimal, the court held that secondary and particularly tertiary grounds justified detention to protect the public and maintain confidence in the administration of justice.

During a criminal jury trial, the court addressed whether defence counsel could use visual aids such as cartoons, stick-figure diagrams, and graphical illustrations during closing submissions.

The trial judge ruled that visual depictions created by counsel that were not admitted through witness testimony risked misleading the jury and effectively amounted to counsel giving evidence.

The court also rejected a proposed visual continuum illustrating the standard of proof beyond a reasonable doubt, relying on Supreme Court of Canada authority cautioning against analogies or illustrative scales for that standard.

The judge held that such materials could distort the fact‑finding process and improperly represent the evidence.

Defence counsel was therefore prohibited from using the proposed visual aids during closing address.

During a criminal jury trial, the accused brought a motion for a mistrial alleging a reasonable apprehension of judicial bias arising from various rulings and trial management decisions.

The motion relied on the judge’s handling of a juror scheduling issue, evidentiary rulings including a voluntariness voir dire and past recollection recorded, and discussions concerning possible modes of participation following the close of the Crown’s case.

The court applied the test for reasonable apprehension of bias from Committee for Justice and Liberty v. Canada (National Energy Board) and R. v. R.D.S. The court held that disagreements with rulings or expressions of difficulty understanding counsel’s arguments do not establish bias and that the judge’s conduct reflected ordinary trial management obligations.

The motion for a mistrial was dismissed.

During a criminal jury trial for assault causing bodily harm, the Crown brought an application to admit part of a witness’s prior written statement under the past recollection recorded exception to the hearsay rule.

The witness had prepared a statement within days of the incident but, at trial nearly three years later, lacked present memory of the accused’s detailed participation in the assault.

The court applied the criteria articulated in appellate jurisprudence requiring a reliable record, timeliness, absence of current memory, and the witness’s present confirmation of the statement’s accuracy.

Finding that the witness personally prepared the statement shortly after the event, had been sober, and vouched for its accuracy despite memory loss at trial, the court held the evidentiary requirements were satisfied.

The probative value of the statement was found to outweigh any prejudice, which could be mitigated through jury instructions and cross‑examination.

The Crown sought a ruling that a recorded telephone call made by the accused to the Ottawa Police Reporting Centre reporting vandalism to a vehicle was voluntary and admissible under the common law confessions rule.

The court considered whether there was some evidence that the accused made the call, whether the civilian police call-taker constituted a person in authority, and whether the statement was voluntary under the principles in R. v. Oickle.

The court found sufficient evidence from identifying information provided during the call to allow a jury to infer that the accused made the call.

Even assuming the call-taker could be considered a person in authority, the statement was voluntary because the accused initiated the call, provided information freely, and there were no threats, promises, oppressive circumstances, or police trickery.

The appellants appealed their convictions for assault causing bodily harm, arguing that the trial judge's verdict was unreasonable, that he erred in his assessment of eyewitness identification evidence, gave insufficient reasons, improperly relied on post-offence conduct, and failed to consider self-defence.

The Superior Court of Justice dismissed the appeal, finding that the trial judge's conclusions were reasonably supported by the evidence of independent eyewitnesses who observed the group assault.

The court held that the trial judge made no palpable and overriding errors in his credibility findings, properly applied the law regarding parties to an offence, and correctly assessed the post-offence conduct of fleeing the scene.