Benson Cowan

The applicant, a police officer, sought judicial review of a decision by the Ontario Civilian Police Commission (OCPC) upholding a Hearing Officer's penalty requiring her to resign or face termination.

The applicant had pleaded guilty to discreditable conduct and deceit for submitting 15 fraudulent massage therapy benefits claims.

The Divisional Court dismissed the application, finding that the OCPC reasonably applied the standard of review, properly deferred to the Hearing Officer's weighing of the Krug factors and usefulness test, and reasonably concluded that the penalty of dismissal was within the range of acceptable outcomes.

The Ontario Civilian Police Commission held a hearing into the conduct of the Chair of the Hamilton Police Services Board regarding comments he made on a radio show about street checks and an ongoing disciplinary proceeding.

The respondent admitted his comments breached section 13 of the Code of Conduct by compromising the integrity of the board and the police force.

The Commission accepted a joint submission and Agreed Statement of Facts, ordering that the respondent be suspended from his duties on the board for three weeks.

The applicant sought judicial review of a decision by the Ontario Civilian Police Commission dismissing his appeal of a police discipline hearing outcome.

The Commission had ruled the appeal was filed out of time because, although faxed and received on the final day of the 30-day limit, a statutory deeming provision deemed faxed documents received the following day.

The Divisional Court allowed the application, holding that the standard of review was correctness and that the deeming provision created a rebuttable presumption, not an absolute one.

The provision is intended to protect the serving party, not to act as a trap to deprive them of a statutory right of appeal when actual receipt within the time limit is established.

The appellant police officer was dismissed for unsatisfactory work performance after a hearing officer found the police service's ad hoc performance evaluation procedures were sufficient despite deviating from mandatory policies.

The Ontario Civilian Police Commission allowed the officer's appeal, finding the strict application of the performance review policies was a mandatory precondition under O. Reg. 268/10.

The Divisional Court set aside the Commission's decision on judicial review.

The Court of Appeal allowed the officer's appeal and restored the Commission's decision, holding that the Commission's interpretation of the regulation was reasonable and entitled to deference.

The appellant police officer was found guilty of misconduct under the Police Services Act.

The hearing officer, the Ontario Civilian Police Commission, and the Divisional Court all applied a balance of probabilities standard of proof.

On appeal, the Court of Appeal held that it was bound by the Supreme Court of Canada's decision in Penner, which established that the standard of proof in PSA hearings is a higher standard of 'clear and convincing evidence', not a balance of probabilities.

The appeal was granted and the matter remitted to the Commission.

The Crown appealed the acquittals of two inmates charged with second-degree murder following the fatal stabbing of a fellow inmate at Kingston Penitentiary.

The trial judge acquitted the accused on the basis of self-defence under s. 34(2) of the Criminal Code.

The Crown argued the trial judge erred in finding an air of reality to the self-defence claim and in assessing its subjective elements, specifically by finding that words alone could constitute an assault.

The Court of Appeal dismissed the appeal, holding that the victim's words, considered in the context of his aggressive conduct and history of violence, were sufficient to constitute an assault, and that the trial judge properly inferred the accused's subjective state of mind from the circumstantial evidence.

The appellant appealed his conviction for trafficking in cocaine, arguing the trial judge erred in charging the jury on party liability and that the Crown unfairly cross-examined him.

The Court of Appeal held that while the instruction on party liability may have been an error, it occasioned no substantial wrong because the jury still had to find the appellant made an offer to sell.

The court also found the cross-examination regarding police fabrication and breach of bail conditions was proper in context and relevant to credibility.

The appeal was dismissed.

The appellant appealed his convictions for break and enter, breach of probation, and breach of recognizance.

He argued the verdict was unreasonable because his DNA on a Coke bottle found at the scene did not prove he was present, and that the trial judge improperly used his failure to testify to convict him.

The Court of Appeal dismissed the appeal, finding the trial judge's inferences from the DNA evidence were logical and not speculative, and that the trial judge only noted the appellant's silence after already concluding the Crown had proven its case beyond a reasonable doubt.

The appellant was convicted of second degree murder for the strangulation of his wife.

The Crown's case was entirely circumstantial but overwhelming, pointing to the appellant having killed his wife at home and then attempting to stage a robbery.

On appeal, the appellant argued the trial judge erred in his jury instructions, in admitting statements made to police after the appellant had asserted his right to counsel, and that the Crown made improper remarks in closing.

The Court of Appeal found that while the trial judge erred in admitting the police statements because their prejudicial effect outweighed their probative value, the error was harmless given the overwhelming circumstantial evidence.

The curative proviso was applied, and the appeals from conviction and sentence were dismissed.

The appellant appealed his conviction for aggravated assault, arguing the trial judge erred in instructing the jury on self-defence, failing to charge on s. 37 of the Criminal Code, and improperly instructing on the burden of proof under the W(D) framework.

The Court of Appeal dismissed the appeal, finding the trial judge sufficiently linked prior assaults to the appellant's apprehension of harm, correctly omitted s. 37 as it would not have assisted the defence, and properly conveyed the burden of proof when the charge was read as a whole.

The appellant was convicted of second degree murder after shooting his common-law wife.

At trial, the primary issue was whether the appellant had the requisite intent, given his intoxication and mental disorder.

On appeal, the appellant argued the trial judge erred in instructions regarding his voir dire testimony, evidence of his violent disposition, and the issue of intention, and appealed his sentence of life imprisonment without parole for 14 years.

The Court of Appeal dismissed the appeal, finding no reversible errors in the jury charge and upholding the sentence as fit.

The appellant was convicted of public mischief for allegedly providing false information to the police about a sexual assault.

At trial, a forensic expert testified that tests 'suggested' the buttons on the appellant's shirt were torn off when the shirt was undone.

The trial judge misapprehended this evidence, stating the expert concluded the buttons had not been ripped off while in the buttonhole space.

The Court of Appeal found this misapprehension played an essential part in the reasoning process resulting in the conviction.

The appeal was allowed, the conviction set aside, and a new trial directed.

The appellant challenged convictions arising from two closely similar bank robberies, arguing that the verdicts were unreasonable and that the trial judge erred in his treatment of identification, forensic hair evidence, and similar fact reasoning.

The court held that the eyewitness identification evidence on the Burlington robbery, together with the appellant's association with the getaway vehicle and limited after-the-fact conduct evidence, supported the verdict.

Although the trial judge used an anchoring rather than pooling approach to similar fact evidence, the court found no prejudice because the allegedly exculpatory Hamilton evidence did not materially undermine identification of the appellant.

The appeal from conviction and sentence was dismissed.

The appellant challenged arson-related convictions arising from a house fire prosecuted entirely on circumstantial evidence, arguing among other things that the trial judge reversed the burden of proof by using the Hodge's case formulation to test the defence explanation for the fire.

The court held that the trial judge improperly required the accused to provide a reasonable explanation based on proven facts, rather than asking whether the Crown had proved guilt beyond a reasonable doubt.

That error required the convictions to be set aside and a new trial ordered.

Fresh evidence relating to the trial judge's earlier involvement in family proceedings was admitted but found insufficient to establish a reasonable apprehension of bias.