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.

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 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 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 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.

An appeal from a conviction under section 159(3) of the Highway Traffic Act for failing to move into another lane for an emergency vehicle if safe to do so.

The appellant argued that the offence could only be committed upon passing a stopped emergency vehicle, not upon approaching it.

The trial justice found the appellant guilty based on the interpretation that the obligation to move lanes is triggered "upon approaching" a stopped emergency vehicle.

The appeal court upheld the conviction, finding the statutory language clear and unambiguous.

The appellant appealed his conviction for impaired care and control of a motor vehicle.

He was found passed out in the driver's seat of a running vehicle with a high blood alcohol content.

The trial judge rejected his defence that he intended only to sleep in the vehicle, finding he failed to rebut the presumption of care and control under s. 258(1)(a) of the Criminal Code.

The trial judge also found a realistic risk of danger even without an intention to drive.

The appeal court upheld the trial judge's factual findings and application of the law, dismissing the appeal.

The applicant brought a motion to stay charges of impaired driving and "over 80" on the basis of a breach of his right to be tried within a reasonable period of time under Section 11(b) of the Canadian Charter of Rights and Freedoms.

The charges were laid on June 24, 2014, with the information sworn on July 9, 2014.

The trial was scheduled for one day but was not completed until April 13, 2016, with judgment delivery delayed until February 7, 2017.

The total delay was 26 months, or 24 months after deducting defence delay.

The court found that the net delay of 24 months exceeded the 18-month presumptive ceiling established in R. v. Jordan and that the Crown failed to establish exceptional circumstances to rebut the presumption.

The court granted the stay of proceedings.

The applicant brought a motion for an order declaring a mistrial due to ineffective assistance of counsel following her conviction on charges of impaired operation of a motor vehicle, operating a motor vehicle with blood alcohol concentration exceeding 80 milligrams per 100 millilitres of blood, dangerous operation of a motor vehicle, and failing to remain at the scene of an accident.

The court examined whether counsel's conduct fell below the standard of reasonable professional assistance and whether such conduct resulted in a miscarriage of justice.

The court found that while certain trial strategy decisions were reasonable, critical failures in file preparation and transfer, inadequate disclosure of key evidence to trial counsel, and insufficient preparation for cross-examination of expert witnesses fell below the standard of care.

The court determined that the reliability of the verdict was called into question and declared a mistrial.

The accused was charged with two alcohol driving offences under section 253(1) of the Criminal Code: impaired operation and operation with blood alcohol exceeding the legal limit.

The Crown alleged the accused had care and control of a motor vehicle on May 19, 2013.

The accused admitted to being too impaired to drive but contested whether he was in care and control.

The trial judge found that the accused did not occupy the driver's seat for the purpose of setting the vehicle in motion, there was no realistic risk he would change his mind and drive, and there was no realistic risk of unintentional motion creating danger.

The accused was acquitted of both charges.