Background
Shane Ense appealed convictions entered by Justice Andrew Buttazzoni of the Ontario Court of Justice on April 5, 2022. The appeal concerned unanticipated collateral consequences following guilty pleas. Ense had pleaded guilty to two counts of impaired driving as part of a global resolution of driving and drug charges covering two offence dates. He and the Crown submitted a joint position on sentence, which the sentencing judge accepted. The sentence included a 12-month driving suspension.
Relying on fresh evidence, Ense submitted that he entered the guilty pleas on the erroneous assumption that the driving convictions would be his first. In fact, he had already been convicted of impaired driving in the United States. According to the court’s reasons, that earlier conviction triggered a mandatory indefinite suspension of his licence under s. 41(1)(h) of Ontario’s Highway Traffic Act. Ense therefore asked that one of the convictions be set aside. The Crown and Ense offered a joint position on how the appeal should be determined.
The appeal was heard and decided orally on November 5, 2026, by van Rensburg, Dawe and Harris JJ.A. Geoff Haskell acted for Ense, and Patrick Quilty acted for the Crown. The written decision was dated November 6, 2026, under docket numbers COA-26-CR-0061 and M57455.
The Court’s Holding
After reviewing the record and the parties’ factums, the Court of Appeal admitted the fresh evidence and allowed the appeal in part. It set aside the conviction for impaired operation with an offence date of June 23, 2021, identified as count #2 on information #21-40100824, and ordered a new trial. The court also set aside the Crown’s election to proceed by indictment in relation to that matter.
The court separately addressed agreed errors in the recording of two fentanyl-possession convictions. The parties agreed that convictions for two counts of possession of fentanyl contrary to s. 4(1) of the Controlled Drugs and Substances Act had been recorded as possession for the purpose of trafficking rather than simple possession. The court directed that the record be corrected to reflect convictions for simple possession of fentanyl contrary to s. 4(1) on count #2 on information #21-4010074 and count #4 on information #21-40100824.
The appeal was otherwise dismissed. The reasons do not set out a broader legal test for withdrawing guilty pleas or for admitting fresh evidence, nor do they state that every unanticipated collateral consequence will justify appellate intervention. The disposition was tied to the fresh evidence, the record, the parties’ factums and their joint position in this case.
Key Takeaways
- The Court of Appeal admitted fresh evidence concerning Ense’s prior impaired-driving conviction in the United States and its effect on his Ontario licence.
- Only the impaired-operation conviction dated June 23, 2021—count #2 on information #21-40100824—was set aside, with a new trial ordered; the Crown’s election to proceed by indictment was also set aside.
- The court directed correction of the record so that two fentanyl counts reflect simple possession under s. 4(1) of the CDSA, not possession for the purpose of trafficking.
- The appeal was otherwise dismissed, and the short reasons do not announce a general rule governing all guilty pleas entered without awareness of collateral consequences.
Why It Matters
The decision illustrates a case-specific appellate response to an unanticipated licensing consequence that, according to the fresh evidence, contradicted an assumption underlying guilty pleas and a jointly proposed sentence. The court’s remedy was limited: it ordered a new trial on one identified impaired-operation count rather than setting aside both driving convictions.
The decision also distinguishes that substantive appellate relief from correction of the court record. The fentanyl convictions were not set aside; instead, the recording errors were corrected by agreement to reflect simple possession. Because the reasons are brief and closely connected to the parties’ joint position, they provide limited general guidance beyond the particular orders made.