Andrew Clifford Burgess

The appellant, convicted of sexual assault and assault with choking, appealed his convictions, arguing the trial judge provided inadequate reasons for rejecting his main defence of fabrication and accepting the complainant's evidence.

The defence posited the complainant fabricated allegations to conceal a consensual encounter from her boyfriend, citing evidence like shared location data, friendly post-incident texts, and the complainant's shifting testimony on her boyfriend's potential reaction.

The Court of Appeal found the trial judge's reasons insufficient, noting a failure to grapple with key defence evidence, mischaracterization of text messages, and an inadequate assessment of the complainant's credibility regarding motive to fabricate.

The appeal was allowed, and a new trial ordered.

The appellants, biological parents of a child (L) in extended society care, appealed a decision denying them leave to bring a status review application for L's return.

L had been in foster care for almost three years and was being considered for adoption.

The Court of Appeal affirmed that leave was required under s. 115(5) of the Child, Youth and Family Services Act, 2017, and that the two-year continuous care period includes time prior to an extended society care order.

The court also clarified the flexible framework for granting leave, emphasizing a child-focused approach and the paramountcy of the child's best interests.

The appeal was dismissed, upholding the denial of leave.

This is a costs endorsement following an appeal where L.M. successfully challenged a costs award against her in a constitutional state funding motion.

The parties were unable to agree on the costs of the appeal.

The Court of Appeal fixed costs at $15,000, inclusive of HST and disbursements, to be paid forthwith by the Children’s Aid Society of the Region of Peel to L.M., emphasizing that the amount reflects a fair and reasonable sum for the unsuccessful party rather than an exact measure of actual costs.

The appellant, Joshua Brown, appealed his convictions for accessing, possessing, and making available child pornography, and his three-year penitentiary sentence.

The conviction appeal grounds were unreasonable verdict and insufficient trial judge reasons.

The sentence appeal grounds included reliance on an incorrect volume of child pornography and unproven aggravating factors.

The Court of Appeal dismissed the conviction appeal, finding the trial judge's verdict reasonable and reasons sufficient, and that the inference of guilt was the only reasonable one.

The court granted leave to appeal sentence but dismissed the sentence appeal, finding that while the trial judge erred in considering 2,500 files instead of 500, this error did not impact the fitness of the significant sentence warranted by the large quantity of child pornography.

The appellant, L.M., appealed a Divisional Court decision that set aside a costs award against the Children's Aid Society (CAS).

L.M. had successfully sought constitutional state funding for an appeal of a child protection order, which the CAS had opposed.

The motion judge awarded costs against the CAS, finding its opposition unreasonable and its rejection of an offer to settle improper.

The Divisional Court overturned this, finding the CAS's conduct reasonable.

The Court of Appeal allowed L.M.'s appeal, reinstating the original costs award, finding the Divisional Court erred in its assessment of the CAS's unreasonableness in opposing the motion and rejecting the offer to settle.

The applicant brought a motion for leave to appeal a lower court order.

The Divisional Court dismissed the motion for leave to appeal and ordered the applicant to pay costs of $4,500 to the responding party.

The applicants, daughters of the respondent, sought a declaration that their father's transfer of his interest in a $4.3 million mortgage to a family trust was a valid gift.

The father argued he lacked donative intent, believing he controlled and was a beneficiary of the trust, and alternatively claimed his daughters unduly influenced him.

The court found the father had donative intent, understanding the estate freeze and trust terms after receiving independent legal and accounting advice.

The court also found no undue influence, as the father acted freely and the daughters were not in a position to dominate his will.

The transfer was upheld as a valid gift.

The appellant, Sakhi Alekozai, appealed his convictions for internet child luring and communicating to obtain sexual services from a person under 18, which arose from a police sting operation.

The appeal challenged the trial judge's application of mens rea standards, particularly regarding the distinction between recklessness and actual belief or wilful blindness, in light of the Supreme Court of Canada's decision in R. v. Morrison.

The Court of Appeal dismissed the appeal, finding that the trial judge had correctly determined that the appellant subjectively believed the collocutor was underage, and that the "reasonable steps" defence was not available.

The Children's Aid Society appealed a costs order of $12,482.49 made against it on a motion for state funding brought by the respondent mother.

The motion judge had found the Society acted unreasonably in opposing the motion and failing to accept an offer to settle.

The Divisional Court granted the appeal and set aside the costs award, finding that while the Society did oppose the motion on the merits, taking a position on the merits of an appeal is consistent with its statutory mandate and does not amount to unreasonable conduct justifying a costs award against a child protection agency.

The appellant mother appealed a trial judge's order finding her child in need of protection due to parental alienation and false allegations of abuse against the father.

The appeal challenged the trial judge's application of the best interests of the child test under the CYFSA, specifically regarding the weight given to the child's views, consideration of relevant risk factors, delegation of future access decisions to the Children's Aid Society, and the issuance of a no-recording order.

The appellate court dismissed the appeal, upholding the trial judge's findings that the child's views were not independent due to the mother's brainwashing, that the risk of emotional harm to the child if remaining with the mother was overwhelming, and that the discretionary access order and no-recording order were within the court's jurisdiction and in the child's best interests.

The appellant mother sought continued access to her two-year-old child who was placed in the extended care of the respondent children's aid society.

The trial judge granted access at the society's discretion, applying a broad best interests analysis under the new Child, Youth and Family Services Act (CYFSA).

The appeal judge overturned this decision, applying the restrictive test from the predecessor legislation.

The Court of Appeal allowed the mother's appeal and restored the trial judge's order, holding that the CYFSA fundamentally changed the access test to a holistic best interests analysis, which properly includes consideration of future benefits such as access to medical information.

The mother appealed a child protection order placing her child in extended society care with no access, following a trial where the child was found to have suffered serious unexplained injuries.

She raised three grounds: ineffective counsel, the trial judge's incorrect application of the "unexplained injury principle" and the application of an outdated legal test for access.

The court dismissed the first two grounds, finding no miscarriage of justice regarding ineffective counsel and affirming the correct application of the unexplained injury principle.

However, the court allowed the third ground, agreeing that the trial judge erred in applying an outdated legal test for access under the Child, Youth and Family Services Act.

Despite this legal error, the appellate court exercised its jurisdiction to decide the access issue itself, concluding that it was not in the child's best interests to order access for the mother, given the history of serious unexplained injuries and the mother's acknowledged risk.

The appellant, R.M., appealed his convictions for sexual assault with a weapon, uttering threats, and robbery, and his adult sentence of eight years, for offences committed when he was 17.

The Crown cross-appealed the conditional stay of the gang sexual assault conviction.

The Court of Appeal dismissed R.M.'s conviction appeal, finding the verdict reasonable and the complainant's credibility assessment proper.

It also dismissed the sentence appeal, upholding the adult sentence as not demonstrably unfit, finding the presumption of diminished moral blameworthiness rebutted and the "Coke principle" not violated.

The Crown's cross-appeal was allowed, setting aside the conditional stay for gang sexual assault, as it was deemed a distinct offence from sexual assault with a weapon under the Kienapple principle.

Four co-accused appealed convictions arising from a large-scale police investigation into criminal gang activity in Toronto (Project Battery and Project Rx).

The appellants challenged the constitutionality of wiretap authorizations and general warrants, alleging violations of section 8 of the Canadian Charter of Rights and Freedoms.

The key issues involved: (1) material non-disclosure regarding the use of a Mobile Device Identifier (MDI); (2) warrantless police entries into common areas of condominium buildings; and (3) warrantless installation of hidden surveillance cameras in condominium hallways.

The Court of Appeal upheld the convictions but found that the warrantless installation of hidden cameras violated section 8 rights.

However, the evidence was admitted under section 24(2) of the Charter.

The appellants' convictions were dismissed except for a one-year sentence reduction for one appellant due to the trial judge's misapprehension of evidence regarding drug quantities.

The appellant was convicted of forcible confinement by the Ontario Court of Justice.

The Crown alleged that the appellant, his brother, and a third man confined the complainant in a car and drove him around Rexdale to force him to contact his brother about a debt.

The confinement lasted approximately one hour with no physical harm.

The key issue at trial was identity.

The appellant appealed his conviction on grounds of unreasonable verdict, insufficient reasons, and interference with cross-examination.

He also sought leave to appeal his sentence of 60 days' intermittent custody followed by 18 months' probation.

The Court of Appeal dismissed both the conviction appeal and the sentence appeal.

The appellant was convicted of sexual interference and sexual assault by the trial judge.

On appeal, the appellant challenged the conviction on the basis of errors in the trial judge's reasoning regarding the complainant's motive to fabricate.

The Court of Appeal found that the trial judge erred by transforming an absence of evidence of motive to fabricate into a proven lack of motive, which improperly enhanced the complainant's credibility.

The court distinguished between "absence of proved motive" and "proved absence of motive" finding that the former does not logically establish truthfulness.

The conviction was set aside and a new trial was ordered.

The mother appealed a trial judge's finding that her child was in need of protection due to a risk of sexual abuse or exploitation.

The risk stemmed from the mother's brother, who lived in the home and was convicted of luring and child pornography offences involving his students.

The mother argued the trial judge erred by making the finding without expert evidence, by rejecting an expert report filed on consent, and by not requiring the risk to be present at the time of the hearing.

The Superior Court of Justice dismissed the appeal, finding no palpable and overriding error in the trial judge's assessment of the evidence and upholding the flexible approach to the timing of risk in child protection matters.

The appellant appealed his conviction for sexual assault, sexual exploitation, sexual interference, and invitation to sexual touching involving his step-daughter.

The sole ground of appeal was ineffective assistance of trial counsel.

The appellant alleged that his trial counsel filed a false affidavit in support of a bail review application, failed to prepare him for trial, made incorrect legal arguments, and failed to effectively cross-examine Crown witnesses.

The Court of Appeal dismissed the appeal, finding that the Crown presented an overwhelming case with strong corroborating evidence, including the appellant's confessions to family members, possession of condoms, and his flight from the country.

The court concluded that even without the alleged deficiencies in counsel's performance, the verdict would not have been different and the trial was not rendered unfair.

The applicant sought leave to appeal under section 131 of the Provincial Offences Act from a judgment of the Ontario Court of Justice that dismissed her appeal from a conviction for operating a rental unit without a valid licence.

The applicant contended that she had entered an uninformed guilty plea at trial, arguing this raised a question of law essential to the public interest.

The Court of Appeal dismissed the application, finding that the applicant's complaint was fact-based rather than a question of law, and that she had failed to meet the very high threshold for granting leave to appeal under section 131 of the POA.

The appellant sought judicial interim release pending appeal after being convicted of possession of heroin for the purpose of trafficking and trafficking a controlled substance for the benefit of a criminal organization, arising from investigations into Toronto-area gang activity.

The appellant's grounds of appeal concerned the legality of wiretap authorizations and general warrants, including issues regarding mobile device identifier technology, warrantless surveillance in condominium common areas, and the naming of the appellant as a known person.

The court found the appeal was not frivolous and granted bail pending appeal, subject to strict conditions including perfection of the appeal by January 12, 2018.