David Craig Mitchell

The Crown appealed an acquittal on an “over 80” impaired driving charge.

The trial judge had acquitted the accused based on concerns about the misidentified serial number of an approved screening device and the officer’s failure to ask when the accused last consumed alcohol.

The appellate court held these considerations were legally irrelevant to the elements of the offence and could only have been relevant in the context of a Charter application, which had not been advanced at trial.

Applying the standard for Crown appeals from acquittals, the court found the legal error could have materially affected the verdict.

The acquittal was set aside and a new trial ordered.

The appellants appealed their summary convictions and sentences arising from a group assault and robbery at a massage parlour.

Liang argued his conviction was unreasonable and his sentence unfit; his appeal was dismissed as the verdict was supported by evidence and the sentence was appropriate for a violent group attack.

Loi argued he received ineffective assistance of counsel because his trial lawyer conceded his liability without instructions.

The court found that Loi's counsel made an unauthorized concession equivalent to a guilty plea, resulting in a miscarriage of justice.

Loi's appeal was allowed and a new trial ordered.

The Crown appealed the accused's acquittals on charges of impaired driving and operating a motor vehicle with a blood alcohol concentration over 80.

The trial judge had excluded the Intoxilyzer certificate, finding the tests were not conducted 'as soon as practicable' due to an unexplained 14-minute delay.

The Superior Court of Justice allowed the appeal, holding that the trial judge erred in law by treating the 'as soon as practicable' requirement as a precondition to admissibility rather than the presumption of identity, and by misinterpreting the requirement to demand an exact accounting of every minute.

A new trial was ordered.

The appellant appealed a summary conviction for operating a motor vehicle with a blood alcohol level over 80 mg, arguing the police lacked reasonable and probable grounds to arrest him and demand breath samples, contrary to s. 8 of the Charter.

The arrest followed observations of excessive speeding, a dangerous ramp maneuver, the odour of alcohol, bloodshot eyes, and an admission of recent drinking.

The court held that the trial judge correctly concluded that the officer had objectively reasonable and probable grounds based on the totality of the circumstances.

Even if a Charter breach had occurred, the breath sample evidence would have been admissible under s. 24(2) applying the Grant framework.

The appeal was dismissed.

The appellant appealed convictions for two counts of assaulting police following a seven-day summary conviction trial.

He alleged misapprehension of evidence, unreasonable verdicts based on inconsistencies in officers’ testimony, and misapplication of the burden of proof under the W.D. framework.

The appeal court held that the inconsistencies identified were minor matters of detail typical of rapidly unfolding events and did not undermine the credibility findings of the trial judge.

The court further found the trial judge correctly applied the analytical framework from W.D. and properly assessed credibility and reasonable doubt.

The appellant’s application to admit fresh evidence was also dismissed for failing to meet the Palmer test.

The appellant appealed a conviction for impaired driving arising from a trial in the Ontario Court of Justice.

The appeal challenged the trial judge’s findings regarding indicia of impairment and argued that the arresting officer lacked objectively reasonable and probable grounds to arrest and demand breath samples, allegedly resulting in breaches of ss. 8 and 9 of the Charter.

The Superior Court held that the trial judge did not misapprehend the evidence and that the officer’s observations—including speeding, poor driving manoeuvres, unsteadiness, odour of alcohol, and glossy red eyes—collectively provided reasonable and probable grounds.

Applying the governing principles for impaired driving investigations, the court emphasized that the grounds assessment must consider the totality of circumstances rather than isolated factors.

The appeal was dismissed and the conviction upheld.

The appellant appealed his convictions entered following guilty pleas to criminal harassment, assault police, and failure to comply with a recognizance, arguing ineffective assistance of counsel.

He alleged that his lawyer instructed him to plead guilty while assuring him he could still proceed to trial.

The court applied the established three-part test for ineffective assistance of counsel, requiring proof of the material facts, deficient performance, and resulting miscarriage of justice.

The court found the appellant failed to establish the factual basis for the allegation and concluded counsel’s representation was competent and professionally reasonable.

As no miscarriage of justice was demonstrated, the convictions were upheld.

The appellant appealed a conviction for operating a motor vehicle with blood alcohol exceeding the legal limit.

He argued the trial judge erred in dismissing his application under s. 11(b) of the Charter based on unreasonable delay and further erred in concluding that police had reasonable grounds to make a breath demand.

The court held that approximately nine months of institutional delay did not justify a stay of proceedings and that additional delays were attributable to the inherent time requirements of the case and defence choices during the litigation.

The court also rejected the argument that the breath demand violated s. 8 of the Charter, finding no reviewable error in the trial judge’s credibility assessment of the arresting officer.

The appeal was dismissed.

The Crown appealed an Ontario Court of Justice decision quashing an information charging refusal to provide a roadside breath sample and impaired driving on the basis that a justice of the peace had not confirmed process under s. 508 of the Criminal Code for a replacement information.

The Superior Court held that confirmation of process was unnecessary for the duplicate refusal count because s. 523(1.1) applies where a new information charges the same offence as an earlier information for which process was already confirmed.

The court further held that even if there had been a defect in process, such defects do not deprive the trial court of jurisdiction once the accused appears and attorns.

Preferring the line of authority exemplified by R. v. Oliveira over R. v. Gougeon, the court concluded that deficiencies in process do not invalidate the information or bar prosecution.

The order quashing the information was set aside and a new trial directed.

The appellant appealed convictions for impaired driving and operating a motor vehicle with blood alcohol exceeding the legal limit, arguing the trial judge erred in refusing an adjournment to secure the attendance of a police supervisor whose evidence was said to relate to an alleged “over-holding” Charter breach.

The court held that trial judges possess broad discretion in trial management decisions such as adjournments and that the appellant failed to demonstrate what relevant evidence the missing witness could have provided.

The court further rejected the claim of ineffective assistance of counsel, finding no evidence that counsel’s failure to subpoena the officer resulted in prejudice or a miscarriage of justice.

Even if over-holding had occurred, the stringent standard for a stay of proceedings under s. 24(1) of the Charter was not met.

The appeal was therefore dismissed.

The Crown appealed an acquittal entered after a trial judge refused an adjournment where no qualified Tamil interpreter was available for the accused.

The trial judge declined to proceed with a conditionally accredited interpreter who had recently been found unqualified in another case and refused the Crown’s last-minute adjournment request.

The appellate court held the trial judge was entitled to accept defence counsel’s representation that an interpreter was necessary and that his refusal to adjourn was a discretionary decision owed deference.

The court further held that trial judges are not required to conduct a fresh inquiry into interpreter competence where recent findings of inadequacy exist.

The Crown failed to demonstrate any error in the exercise of discretion.

The appellant appealed convictions for impaired operation and operating a motor vehicle with a blood alcohol concentration over the legal limit.

At trial, the appellant brought an application under s. 11(b) of the Charter alleging unreasonable delay, which the trial judge dismissed with brief oral comments and a promise of written reasons.

Nearly three and a half years later, no written reasons were produced.

The appeal court held that the absence of reasoned reasons prevented meaningful appellate review of the s. 11(b) ruling.

The appeal was allowed and the matter remitted back to the trial court for proper determination.

The appellant appealed a conviction for operating a motor vehicle with blood alcohol exceeding the legal limit, arguing that the trial judge erred in dismissing a s. 11(b) Charter application alleging unreasonable delay.

The appellant also argued that the trial judge’s “unorthodox” approach to hearing the application created a reasonable apprehension of bias because the judge outlined his preliminary views after reviewing the written materials before hearing full submissions.

The appeal court held that the trial judge’s conduct reflected preparation rather than predisposition and that counsel had a full opportunity to make submissions.

The court further found no error in the trial judge’s attribution of delay or assessment of prejudice.

The conviction was upheld and the appeal dismissed.

The plaintiffs appealed a Master's decision refusing their motion to amend their Statement of Claim in a wrongful dismissal and share repurchase dispute.

The Master had denied the amendment on several grounds, including prejudice, election, and withdrawal of an admission.

The Divisional Court allowed the appeal, finding the Master was clearly wrong because he applied the wrong test for prejudice under Rule 26.01 and improperly weighed evidence and made factual findings, which is inappropriate on a motion to amend pleadings.

The court directed the plaintiffs to prepare an amended Statement of Claim, excluding certain paragraphs that offended the rule in Foss v. Harbottle.