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Review - Fresh Law - Adequate Evidence Record Required. Brisco v. Ontario Civilian Police Commission
In Brisco v. Ontario Civilian Police Commission (Ont Divisional Ct, 2025) the Divisional Court dismissed a police officer's JR, here against "a decision of the Ontario Civilian Police Commission, which upheld a hearing officer’s finding that he engaged in misconduct for making a donation to what the hearing officer found to be illegal protests in Ottawa and Windsor" and related penalty.
The court considers a 'fresh law' issue, here the applicant's argument that their abuse of process argument should have been considered at the OCPC administrative level:[9] ... I further conclude the Commission’s decision not to hear the abuse of process argument for the first time on appeal was reasonable. ....
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Did the Commission err in failing to address Mr. Brisco’s abuse of process argument?
[23] Mr. Brisco submits the Commission erred in failing to address his argument that the prosecution against him constituted an abuse of process. He argues the investigation into his alleged misconduct was based on illegally obtained evidence that ought never to have been used, specifically his anonymous donation that was revealed by a hacker. In his submission, the Commission erred in its assessment of the test for raising a new issue on appeal.
[24] I disagree that the Commission was required to address the merits of this argument. There is no dispute the Commission cited the correct test for introducing a new issue on appeal. The Commission first referred to R. v. J.F., 2022 SCC 17, 468 D.L.R. (4th) 216, which emphasizes that a new issue will only be dealt with for the first time on appeal in “exceptional circumstances”. The Commission then cited the factors to consider as set out in Gangadeen v. Peel Regional Police Service, 2023 CanLII 5919 (ON CPC), at para. 39, citing R. v. Reid, 2016 ONCA 524, 132 O.R. (3d) 26, at paras. 37-44, namely: (1) the evidentiary record must be sufficient to permit the appellate court to fully, effectively, and fairly determine the issue raised on appeal; (2) the failure to raise the issue at trial must not be due to tactical reasons; and (3) the court must be satisfied that no miscarriage of justice will result from the refusal to raise the new issue on appeal.
[25] It was reasonable for the Commission to conclude the test was not met because the evidentiary record was insufficient. Mr. Brisco disputes the Commission’s comment that the relevant evidence at the hearing was not elicited in the context of an abuse of process argument. He submits that the comment is illogical and does not justify the decision, since the nature of a new issue on appeal is that the evidence will always have been elicited in connection with other issues. . Paracha v. Naqi Construction Ltd.
In Paracha v. Naqi Construction Ltd. (Ont CA, 2024) the Ontario Court of Appeal dismissed an appeal, here holding that a fresh law motion should not be granted if the evidentiary record is inadequate:[23] ... the appellants’ argument is a new issue that was not raised at trial and, as mentioned above, the appellants have not filed the complete record of transcripts from the trial.[2] It is incumbent on the party seeking to raise a new argument before this court to persuade us that “the facts necessary to address the point are before the court as fully as if the issue had been raised at trial” (internal quotations omitted): Svia Homes Limited v. Northbridge General Insurance Corporation, 2020 ONCA 684, 7 C.C.L.I. (6th) 1, at para. 25. The appellants have put before this court only a subset of the transcripts of the evidence. Portions of the evidence related to the CedarOaks transaction including the Parachas’ evidence is missing. The absence of this material without any explanation is fatal to this new ground of appeal and we decline to consider it.
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