R. v. Anderson
Because the defence expressly conceded at trial that there were no Charter issues and raised no objection to admissibility, the Charter argument was not open on appeal; the remaining non‑Charter challenge was resolved by R. v. Rilling, and therefore, although leave to appeal was granted, the appeal must be dismissed.
Source-derived case information.
- Citation
- C39996
- Parties
- Appellant: John Anderson; Respondent: Her Majesty the Queen
- Court
- Court of Appeal for Ontario
- Jurisdiction
- Canada
- Judgment Date
- 13 May 2005
- Procedural Posture
- Criminal Appeal (summary Conviction) / Decision on Appeal From Superior Court (summary Conviction Appeal Court)
- Outcome
- Leave to appeal granted; appeal dismissed.
- Legal Topics
- Search and Seizure, Reasonable Grounds, Breath Screening Devices, Admissibility of Evidence, Section 254(3) Criminal Code, Section 258(1)(c) Criminal Code, Leave to Appeal
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
John Anderson
Appellant
Her Majesty the Queen
Respondent
Procedural Posture
Criminal Appeal (summary Conviction) / Decision on Appeal From Superior Court (summary Conviction Appeal Court)
Legal Issues
- 1 Whether the defence could raise a Charter issue on appeal after expressly conceding there were no Charter issues at trial
- 2 Whether the arresting officer had reasonable grounds under s.254(3) of the Criminal Code to believe the appellant had committed an offence
- 3 Whether the presumption in s.258(1)(c) of the Criminal Code applied and could affect admissibility under the Charter
Ratio Decidendi
Because the defence expressly conceded at trial that there were no Charter issues and raised no objection to admissibility, the Charter argument was not open on appeal; the remaining non‑Charter challenge was resolved by R. v. Rilling, and therefore, although leave to appeal was granted, the appeal must be dismissed.
Court Disposition
Leave to appeal granted; appeal dismissed.
Orders
- Leave to appeal granted
- Appeal dismissed
Full Case Text
Judgment text and source record
1 paragraphs
R. v. Anderson Collection Decisions of the Court of Appeal Date 2005-05-13 Docket numbers C39996 Judges Rosenberg, Marc; Blair, Robert Ashley; Juriansz, Russell G. Subject Criminal Decision Content DATE: 20050513 DOCKET: C39996 COURT OF APPEAL FOR ONTARIO RE: HER MAJESTY THE QUEEN (Respondent) – and – JOHN ANDERSON (Applicant (Appellant) BEFORE: ROSENBERG, BLAIR and JURIANSZ JJ.A. COUNSEL: Robert Sheppard for the appellant Susan Chapman for the respondent HEARD & ENDORSED: May 11, 2005 On appeal from the order of Justice R. Jeffrey Flinn of the Superior Court of Justice (Summary Conviction Appeal Court) dated January 13, 2003. APPEAL BOOK ENDORSEMENT [1] We agree with Flinn J. that it was not open to the defence to raise the Charter issue in the manner in which it was raised at the trial court. The defence expressly conceded at the opening of the trial that there were no Charter issues and raised no objection to the admissibility of the evidence. The appellant concedes that, in any event, the basis upon which the trial judge dismissed the charge (i.e. the description of the screening device) would not affect the lawfulness of the demand. However, in this court the appellant argues that the appeal judge should have considered whether the officer had reasonable grounds to believe the appellant committed an offence within the meaning of s. 254(3) of the Code. The appellant submits that this affects the application of the presumption in s. 258(1)(c) and was an additional ground for excluding the evidence under the Charter. In light of the position taken by the defence at trial, this Charter argument was not open to the defence. The non-Charter argument is answered by the decision of the S.C.C. in R. v. Rilling (1975), 24 C.C.C. (2d) 81 (S.C.C.). [2] Accordingly, while leave to appeal is granted, the appeal is dismissed.