Bradley J. Greenshields

The appellants, a police officer and an employee of the Office of the Public Guardian and Trustee, were convicted of defrauding an elderly man's estate using a fabricated will.

They appealed their convictions and sentences, arguing errors in the trial judge's refusal to stay proceedings for a Charter breach, admission of after-the-fact conduct evidence regarding the concealment of their affair, and an unbalanced jury charge.

The Court of Appeal dismissed the appeals, finding no error in the trial judge's evidentiary rulings, jury instructions, or the sentences imposed.

The appellant, a 58-year-old family friend, was convicted of sexually assaulting the 17-year-old daughter of his close friend and sentenced to six years' imprisonment.

On appeal, he argued the trial judge erred in assessing credibility, applying the W.(D.) principles, and finding a lack of consent.

The Court of Appeal dismissed the conviction appeal, finding no error in the trial judge's credibility assessments or factual findings.

The sentence appeal was also dismissed, as the six-year term was not demonstrably unfit given the significant breach of trust, the vulnerability of the adolescent victim, and the severe impact of the offences.

The accused, charged with historical sexual assault of his 12-year-old cousin in 1991, brought a lost evidence application seeking a stay of proceedings.

The defence argued that the failure of the police to preserve a tape recording of the complainant's 1991 interview, tissue samples from her abortion, and other records constituted unacceptable negligence and breached his s. 7 Charter rights.

The court dismissed the application, finding no unacceptable negligence because the police had closed the file in 1991 at the urging of the accused's family and had no reason to believe the evidence would be needed.

The court also found no actual prejudice to the accused's fair trial rights, as the missing evidence would not have assisted his defence given the admissions made at the time and the availability of detailed contemporaneous notes.

The defendant applied for a mistrial in his sexual assault trial, arguing that the complainant gave materially different evidence in a subsequent trial involving his brothers.

The defence alleged that the complainant's testimony regarding her 1991 statements to the Children's Aid Society and police was inconsistent.

The court dismissed the application, finding that the essence of the complainant's evidence was the same in both trials.

Any minor differences were insignificant, would not have impacted the court's assessment of her credibility, and did not render the trial unfair.

The defendant brought a motion seeking the trial judge's recusal based on a reasonable apprehension of bias.

The motion arose after the trial judge had completed her reasons for judgment convicting the defendant of historical sexual assault, but before those reasons were released, when the defence sought to bring a lost evidence application.

The defence alleged that six events, including the trial judge's refusal to release her preliminary reasons and her questioning of defence counsel during an adjournment request, demonstrated bias.

The trial judge dismissed the motion, finding that her conduct was consistent with her gatekeeping function and that a reasonable, informed observer would not conclude she was biased or incapable of deciding the remaining applications impartially.

The accused was charged with sexual assault and sexual interference relating to an incident in 1991 when the complainant was 12 years old and the accused was 21.

The assault resulted in the complainant becoming pregnant and subsequently having an abortion.

The matter was investigated by police and CAS at the time, but no charges were laid.

The complainant came forward again in 2022.

The trial judge applied the W.(D.) framework, rejecting the accused's blanket denials as not credible.

Despite the passage of 33 years, missing police and CAS records, the destruction of hospital tissue samples, and the complainant's conflated memory regarding the location of the abortion, the court found the complainant's core testimony identifying the accused as the perpetrator to be credible and reliable.

The accused was found guilty of sexual interference, with the sexual assault count stayed under the Kienapple principle.

The defendant brought a s. 276 application to cross-examine the complainant on five lines of inquiry regarding her past sexual activity and non-disclosure, aiming to challenge the link between the alleged assault and pregnancy.

The court allowed inquiry into the complainant's understanding of pregnancy-causing sexual activity, her initial denial of sexual activity, and whether other sexual activities could have caused pregnancy, with limitations.

However, the court disallowed questioning on the non-disclosure of alleged assaults by the defendant's brothers and the nature and circumstances of those alleged assaults, finding them irrelevant or unduly prejudicial and offending the collateral fact rule.

The decision emphasizes balancing the accused's right to full answer and defence with the protection of the complainant under s. 276 of the Criminal Code.

Following an appeal that was allowed in part, the parties were unable to agree on costs.

The appellant sought partial indemnity costs of approximately $59,600, while the respondent argued each party should bear their own costs.

Considering the factors under Rule 57.01(1) of the Rules of Civil Procedure, the Divisional Court awarded costs to the appellant fixed at $40,000 all inclusive.

The appellant, R.M., appealed convictions for attempted abduction of his son and assault of another boy.

The Court of Appeal found that the trial judge erred in instructing the jury on the actus reus of attempted abduction by failing to apply s. 24(2) of the Criminal Code, which designates this as a question of law for the judge.

The court quashed the attempted abduction conviction and substituted it with a conviction for unlawful confinement, lifting the conditional stay on that charge.

The appeal against the assault conviction was dismissed, as were arguments regarding unlawful confinement jury instructions.

During a criminal proceeding, the defendants applied to exclude recordings of intercepted conversations.

The Crown sought to admit sessions 381 and 842.

The court found that portions of session 381 were sufficiently audible and contextualized to be admitted, while prejudicial portions regarding personal drug use were excluded.

The court ruled that session 842 was inadmissible hearsay, as the statements had no evidentiary value unless admitted for the truth of their contents.

In a voir dire during a criminal proceeding, the Crown sought to admit evidence of web-browsing intercepts and MMS messages allegedly captured from the accused's cell phone using novel police interception software.

The court reviewed the requirements for authenticating electronic documents under sections 31.1 to 31.3 of the Canada Evidence Act.

The court found that the police witness lacked the necessary expertise and actual knowledge to confirm that the intercepted data accurately reflected what was accessed or displayed on the accused's device.

As the technology was novel and untested by the police, and no expert evidence or corroborating data was provided, the Crown failed to authenticate the electronic documents.

The evidence was ruled inadmissible.

The appellant pharmacist appealed a decision of the Discipline Committee finding he committed professional misconduct by breaching a condition prohibiting him from dispensing to or interacting with minors unsupervised.

The Divisional Court found the Committee interpreted the condition over-broadly and made palpable and overriding errors of fact regarding three of the four alleged breaches.

The appeal was allowed in part, three findings of misconduct were set aside, and the penalty and costs orders were remitted to the Committee for redetermination.

The College's cross-appeal seeking revocation of the appellant's certificate was dismissed.

During a sexual assault trial, the court held a ruling on whether the defence of honest but mistaken belief in communicated consent should be left with the jury.

The alleged assault occurred in a dark room where multiple people were sleeping after consuming alcohol.

The accused claimed the complainant initiated sexual contact, while the complainant testified she awoke to being assaulted and did not consent.

Applying the air of reality test, the court found that the accused's evidence, if assumed true, put the defence in play.

The court ruled the defence would be left with the jury, as it was for the jury to assess whether the accused took reasonable steps to ascertain consent.

The applicant, charged with sexual assault, sought an "order in aid" to compel the complainant's parents to disclose the names and contact information of her therapists.

This information was required to facilitate an application under s. 278.3 of the Criminal Code for the production of therapy records.

The court dismissed the application, holding that the statutory regime for third-party record production requires the applicant to identify the specific record and the person in possession or control of it.

The court found that the Criminal Code does not contemplate a discovery process or an "order in aid" to obtain the identity of record holders, and that the complainant's parents were not "record holders" as defined by the Code.

The appellant was convicted by a jury of importing cocaine and conspiracy to import cocaine after bricks of cocaine were found in an airport washroom.

A co-accused had previously pleaded guilty to the conspiracy charge.

On appeal, the appellant argued the trial judge erred in instructing the jury that they must accept the existence of the conspiracy based on the co-accused's guilty plea, and by failing to provide a proper Carter instruction regarding the use of co-conspirators' acts and declarations.

The Court of Appeal agreed that both instructions were erroneous and rendered the trial unfair on the conspiracy count.

However, the Court applied the curative proviso to uphold the importing conviction, finding the evidence on that count overwhelming.

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

The applicant, G.G., facing sexual assault charges, brought a motion seeking direction on whether sections 276 and 278.93 of the Criminal Code applied to the proposed impeachment of the complainant, E.B., based on her inconsistent police statement.

The Crown argued that a s. 276 application was required.

The court ruled that s. 276 did not apply, allowing the defence to cross-examine the complainant on her January 23, 2020 statement without a s. 276 application, emphasizing that the evidence related to the very sexual activity alleged, not prior sexual history.

The appellant appealed his summary convictions for two counts of sexual assault against a mother and daughter during acupuncture treatments.

The appeal was based on alleged errors in credibility findings, uneven scrutiny of evidence, failure to declare a mistrial due to a post-verdict civil claim, and impermissible stereotypical reasoning.

The Superior Court of Justice found that while the trial judge's credibility findings and dismissal of the mistrial application were reasonable, the trial judge erred in law by relying on impermissible stereotypical reasoning regarding the likelihood of a civil claim based on masturbation.

This error reversed the burden of proof.

The appeal was granted, the convictions were set aside, and a new trial was ordered.

The applicant, Clara Eva Boros, sought judicial review of the Minister of Justice's order to surrender her to Romania for extradition.

The Minister's decision regarding the significant delay in the extradition process, spanning over 18 years, was found to be unreasonable due to a lack of transparent investigation into when Romanian authorities became aware of the applicant's presence in Canada and an insufficient explanation for the delay on the Canadian side.

The Court of Appeal allowed the application, remitting the matter back to the Minister for reconsideration with specific directions for further inquiry and explanation regarding the delays.

An applicant sought judicial review of the Minister of Justice's order to surrender him to the United States to face drug trafficking and conspiracy charges.

The applicant argued that surrender would be unjust or oppressive due to serious health conditions including schizophrenia, epilepsy, and prostate cancer, and that extradition would cause significant harm.

The Court of Appeal upheld the Minister's decision, finding that the Minister applied the correct legal test under section 44(1)(a) of the Extradition Act, properly considered the overall effects of surrender including available medical care in the U.S., and was entitled to rely on information from U.S. authorities regarding treatment availability.

The applicant sought a ruling to exclude evidence obtained from a motor vehicle's "Infotainment system" arguing that police searches violated sections 7 and 8 of the Canadian Charter of Rights and Freedoms.

The court found that a warrantless search and a failure to make a return to a justice constituted Charter breaches.

However, the court determined that the search warrant itself was validly issued.

Applying the R. v. Grant factors, the court concluded that the seriousness of the breaches was moderate, the impact on the applicant's privacy interests was limited, and society's interest in adjudicating the case on its merits was strong due to the reliability and importance of the evidence.

Consequently, the admission of the evidence would not bring the administration of justice into disrepute, and the application to exclude the evidence was dismissed.