David Ian Anber

The Ontario Court of Justice dismissed Nathaniel McCausland's application for a stay of proceedings alleging abuse of process due to the Crown's alleged reneging on a plea agreement.

The court found no evidence of a formal plea agreement, only vague discussions initiated by a bail Crown attorney without proper authorization or detailed terms.

The burden of proving an abuse of process was not met, as there was no misconduct or bad faith by the Crown.

The decision clarifies the distinction between plea discussions and binding plea agreements, emphasizing the necessity of clear, authorized, and detailed terms for a plea agreement to be enforceable.

The applicant sought judicial review of a decision by the Office of the Independent Police Review Director, which confirmed the Ottawa Chief of Police's findings regarding her complaint against three officers during the February 2022 'Freedom Convoy'.

The officers had directed the applicant to leave a secured area, cautioned her about arrest, and briefly seized her phone while she was filming them.

The Director upheld the finding that the brief seizure was minor misconduct, but that the officers had lawful authority under the Emergency Measures Regulations to direct her to leave.

The Divisional Court dismissed the application, concluding that the Director's decision was reasonable.

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.

This endorsement addresses the summary dismissal of an applicant's change of venue application.

The initial dismissal was based on the application having no reasonable prospect of success, similar to a prior decision.

However, a subsequent Supreme Court of Canada decision, R. v. Haevischer, established a new, higher threshold for summary dismissal of criminal applications, requiring them to be "manifestly frivolous." The court found that the applicant's case, which involved factual assertions rather than a pure question of law, could not be deemed "manifestly frivolous" under the new standard.

Consequently, the original summary dismissal was set aside, and the applicant was granted the opportunity to renew his application before another justice.

The appellant appealed her conviction for driving with more than 80mg/100ml of alcohol, arguing a breach of her s. 10(b) Charter right to counsel due to a three-minute delay in being informed of her rights after arrest.

The court found no breach, determining the delay was justified by safety protocols (calling for a female officer, tow truck, and seating the appellant in the cruiser) and consistent with the contextual analysis required for "without delay" in s. 10(b).

The appeal was dismissed.

The court also noted that even if a breach had occurred, the evidence would likely not have been excluded under s. 24(2) of the Charter.

This endorsement addresses a prior decision summarily dismissing the applicant's change of venue application.

Following the Supreme Court of Canada's release of R. v. Haevischer, 2023 SCC 11, which established that criminal applications should only be summarily dismissed if "manifestly frivolous" the presiding judge invites submissions from the parties.

The purpose of these submissions is to determine whether the earlier dismissal should be set aside in light of the new jurisprudential standard, potentially allowing the applicant to re-present the application before another justice.

This decision addresses an application for a change of venue brought by the applicant, Randall Hillier.

The court summarily dismissed the application, citing its reasons articulated in previous decisions, specifically R. v. King and R. v. Bauder.

The accused, Neville Brisson, was charged with failing to comply with a demand by a peace officer under the Criminal Code after a single motor vehicle collision.

The court addressed the lawfulness of the Approved Screening Device (ASD) demand and Standard Field Sobriety Tests (SFSTs), and a Charter s. 10(b) breach regarding the right to counsel.

The court found the ASD demand and SFSTs lawful, and while a s. 10(b) breach occurred due to a brief delay in informing the accused of his rights post-arrest, the evidence of his refusal to comply with the DRE demand was admissible under s. 24(2) of the Charter.

Ultimately, the Crown proved beyond a reasonable doubt that the DRE demand was valid and the accused unequivocally refused it, leading to a finding of guilt.

The appellant, V.N., appealed his conviction for possessing and accessing child pornography, arguing his guilty plea was uninformed due to unawareness of collateral consequences: a lifetime SOIRA order and ineligibility for a criminal record suspension.

The Court of Appeal dismissed the appeal, finding that V.N. failed to present credible evidence establishing a reasonable possibility that he would not have pleaded guilty had he been aware of these consequences, as his primary concerns at the time of the plea were addressed.

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 applicant, charged with impaired driving, brought a motion seeking permission for his counsel to conduct the trial without a mask and for witnesses to testify unmasked.

Counsel argued that masks impeded his ability to effectively cross-examine witnesses by obscuring non-verbal cues, muffling his voice, and causing distraction.

The court dismissed the motion, finding that counsel's effectiveness would not be meaningfully reduced and that public health concerns, supported by existing regulations and guidelines, justified the masking requirement.

The judge emphasized judicial discretion in balancing fair trial rights against public health measures and the importance of consistency in court procedures.

The appellant appealed his conviction for sexual assault following a judge-alone trial.

The complainant, who was heavily intoxicated and found to be unconscious at the start of the sexual activity, testified that he awoke to being fellated by the appellant and did not consent.

The appellant argued the trial judge erred in applying the rule in Browne v. Dunn, that the verdict was unreasonable, and that the reasons were insufficient.

The Court of Appeal dismissed the appeal, finding that any error regarding Browne v. Dunn was immaterial, as the appellant's own evidence showed he took no reasonable steps to ascertain consent, depriving him of the defence of mistaken belief in communicated consent.

The defendant was charged with sexual assault alleged to have occurred between December 30, 2018 and January 6, 2019.

Both the defendant and complainant were hospital employees.

The defendant brought a motion under sections 278.3 and O'Connor of the Criminal Code seeking production of documents held by the hospital and a workplace investigator relating to the complainant's allegations and the investigation conducted.

The court determined whether the documents constituted "records" under section 278.1 of the Criminal Code and whether they should be produced to the court for review.

The court addressed the definition of "records" the reasonable expectation of privacy, the exemption for records made by persons responsible for investigation or prosecution, and the test for likely relevance under section 278.5.

The defendant was charged with operating a conveyance while impaired by alcohol and having a blood alcohol level of 80 mg or more within two hours of operating a conveyance.

The trial proceeded as a blended voir dire.

The defendant challenged the admissibility of breath test evidence on multiple grounds: that the approved screening device demand was not made immediately; that his s. 10(b) right to counsel was breached by an eight-minute delay in informing him of that right; and that the Intoxlyzer test was not administered as soon as practicable.

The court found a breach of s. 10(b) rights and excluded the breath test evidence under s. 24(2) due to a pattern of systemic failures by the Ottawa Police Service to immediately advise detainees of their right to counsel.

However, the defendant was found guilty of impaired operation of a conveyance based on evidence of his driving pattern, physical observations, and the presence of alcohol in the vehicle.

The appellant, Ferid Retta, appealed his conviction for impaired operation of a motor vehicle.

The appeal was based on two grounds: first, that the trial judge's finding of Constable Connolly's credibility was unreasonable given the officer's compromised credibility on a Charter issue; and second, that the breath technician's observations of impairment should have been excluded due to a Charter breach, and the trial judge's reasons were insufficient.

The court dismissed the appeal, finding that the trial judge's credibility assessment was reasonable as it was confined to a specific issue, and that the exclusion of the breath technician's observations was not a live issue at trial.

The court affirmed that non-conscriptive observations of impairment are generally admissible despite Charter breaches.

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 his conviction for operating a motor vehicle with over 80 mgs of alcohol in 100 mls of blood ("Over 80"), asserting breaches of his ss. 8 and 10(b) Charter rights and insufficient trial judge reasons.

The court dismissed the appeal, finding no breach of the section 8 Charter right regarding the "forthwith" Approved Screening Device (ASD) demand, and either no breach or only a technical breach of the section 10(b) right to counsel, which would not warrant exclusion of evidence under s. 24(2).

The court also found the trial judge's reasons sufficient regarding reasonable and probable grounds for arrest"as soon as practicable" breath testing, and the destruction of dash-pad notes.

Donald Mackey appealed his conviction for operating a motor vehicle with a blood alcohol level above the legal limit, contrary to section 253(1)(b) of the Criminal Code.

The appeal raised several Charter arguments, including whether the roadside screening device demand was made forthwith, the reasonableness of the breath sample seizure, the destruction of police scratch notes, and compliance with the right to counsel without delay.

The court dismissed all grounds of appeal, finding no error in the trial judge's conclusions that the demand was made forthwith, the breath samples were reasonably taken, the destruction of notes caused no prejudice, and the three-minute delay in providing the right to counsel was justified by public safety concerns for a child passenger.

The conviction was upheld.

The accused was charged with refusing to provide an Intoxilyzer sample and impaired operation of a motor vehicle.

The court examined multiple Charter breach allegations including sections 7, 8, 9, and 10(b).

The court found that the Alcohol Screening Device demand was made forthwith despite a 5-6 minute delay, that reasonable and probable grounds existed for arrest based on the ASD fail result, and that there was no arbitrary detention.

However, the court found a serious breach of the right to counsel at the police station where the accused's waiver was not properly established due to altered police notes and insufficient documentation.

The evidence of refusal was excluded as a remedy.

The appellant appealed a decision of the Superior Court of Justice dismissing his application for certiorari to quash a committal to trial for robbery.

The Court of Appeal upheld the lower court's decision, finding that the preliminary inquiry judge properly concluded there was sufficient evidence for a trier of fact to infer the appellant was the robber.

The video evidence of the robbery combined with DNA evidence linking the appellant to t-shirts worn during the robbery was found to be sufficient to support the committal.