Bradley W. Miller

The appellant sought leave to appeal from a Summary Conviction Appeal Court decision dismissing his appeal of an assault conviction.

The appellant had been represented at trial by a law student from a legal aid clinic and argued on appeal that he received ineffective legal representation because his counsel failed to raise Charter issues regarding a strip search conducted after his arrest.

The Court of Appeal dismissed the application for leave to appeal, finding that the Summary Conviction Appeal Court Judge's determination regarding the reasonableness of the legal representation was a case-specific determination that did not extend beyond the four corners of the case and was not clearly wrong.

The other issues raised by the appellant also failed to meet the test for leave to appeal.

A police officer was convicted of sexually assaulting a complainant by performing searches of her while transporting her to a police station.

At trial, the trial judge admitted a prior consistent statement made by the complainant to a female officer at the police station, in which the complainant stated she had already been searched three times.

The summary conviction appeal judge quashed the conviction, finding the trial judge erred in admitting and relying on the prior consistent statement.

The Crown appealed to the Court of Appeal for Ontario.

The Court of Appeal allowed the appeal and restored the conviction, holding that the prior consistent statement was admissible under the narrative as circumstantial evidence exception to the rule against prior consistent statements, and that the trial judge properly used the statement to assess the complainant's credibility by considering the context, timing, and spontaneous nature of the complaint.

Jordan McPhee pleaded guilty to sexual assault causing bodily harm, unlawful confinement, and robbery.

The Crown applied for a dangerous offender designation.

The court, considering McPhee's criminal record, a subsequent aggravated assault conviction, and a psychiatric risk assessment, found him to be a dangerous offender based on a pattern of repetitive behaviour showing a failure to restrain his behaviour and a likelihood of causing death, injury, or severe psychological damage.

The court imposed a determinate sentence of six years imprisonment (less pre-sentence custody) followed by a ten-year Long Term Supervision Order, with specific recommendations for conditions to the parole board.

The Crown appealed a decision by Justice Maranger dismissing an application for certiorari and mandamus relating to a preliminary inquiry judge's ruling discharging the respondent on count five of an information.

The Crown had subsequently preferred a six-count indictment with count six being identical to the discharged count five.

The respondent's counsel conceded in oral argument that the indictment was properly preferred under s. 574.1(b) and indicated no intention to challenge it at trial.

The Court of Appeal dismissed the appeal as moot but commented on the merits, finding that the preliminary inquiry judge had committed jurisdictional error by failing to consider all evidence relevant to the amended count five, which alleged a continuing sexual assault over a three-year period in Ontario and Quebec.

The appellant appealed his sentence of 15 months plus two years' probation for sexual assault.

He argued that the sentencing judge applied the wrong sentencing range, contending that the appropriate range for intercourse with an unconscious complainant was 12 to 14 months to three years, rather than the 21 months to four years range for forced intercourse with a spouse.

The appellant submitted that a sentence of six to ten months was fit.

The Court of Appeal dismissed the appeal, finding that the sentencing judge properly applied the sentencing range and that the sentence imposed was fit in the circumstances.

The applicant wife and respondent husband separated after an 18-year marriage.

The applicant sought spousal support and equalization, while the respondent sought child support and equalization.

The court divided the respondent's pension at source and imputed additional income to him for post-retirement work.

The court found the applicant liable for child support arrears for the parties' adult children attending post-secondary education.

The court also found the applicant entitled to compensatory and non-compensatory spousal support.

After setting off the child support arrears against the equalization payment and spousal support arrears, the respondent was ordered to pay the applicant a net amount of $7,340.14, plus ongoing spousal support.

The appellant appealed his conviction for impaired driving, arguing the trial judge erred in finding the arresting officer had reasonable and probable grounds to make an arrest and breath demand.

The appellant contended the officer only had a 'suspicion' of impairment.

The Summary Conviction Appeal Court reviewed the trial judge's findings, which relied on the severe unexplained collision, the appellant's disorientation, unsteadiness, odour of alcohol, and admission of consumption.

The court found no error in the trial judge's conclusion that the officer possessed both a subjective belief and objective grounds for impairment.

The appeal was dismissed.

The appellant appealed his conviction for drug trafficking and possession for the purpose of trafficking.

The trial judge found that police had reasonable grounds to arrest the appellant following observation of a suspected drug transaction.

Although the trial judge found a breach of s. 8 of the Charter regarding a warrantless entry into the appellant's apartment, she held that a subsequent search warrant was validly issued and declined to exclude the evidence under s. 24(2).

The Court of Appeal upheld the conviction, finding no errors in the trial judge's analysis of reasonable grounds for arrest, reasonable expectation of privacy, the validity of the search warrant, or the s. 24(2) analysis.

The appellants, a law firm and its principals, appealed a charging order granted by the application judge in favour of the respondent law firm.

The respondent had been retained as co-counsel on a contingency fee basis to assist with two minor plaintiffs' claims but the relationship broke down and the appellants terminated the agency agreements without paying the respondent's fees and disbursements.

The respondent applied for charging orders under section 34 of the Solicitors Act to secure payment from any eventual recovery.

The Court of Appeal upheld the charging orders, finding that all elements of the test were satisfied and that the order would apply only to the contingency fee percentage and disbursements, not the entire recovery.

This is an addendum to the Court of Appeal's decision on an appeal from a Superior Court order regarding family law matters, specifically concerning support.

The appellant sought relief regarding costs awarded to the respondent on the motion below.

Although this relief was requested in the Notice of Appeal, it was not addressed in the original submissions or reasons.

Following written submissions from both parties, the Court of Appeal quashed the cost order from the motion below and remitted the costs issue back to the motion judge for discretionary determination.

The appellant appealed a Superior Court judgment concerning the scope and use of a right-of-way to access her garage.

The appellant raised three arguments: (1) that the application judge erred in interpreting the right-of-way as providing access only along the existing laneway; (2) that fence posts erected by the respondents interfered with the right-of-way; and (3) that the form of the order was deficient because undertakings were not included in the formal order.

The Court of Appeal upheld the application judge's findings on all grounds, finding no legal error or misapprehension of evidence regarding the scope of the right-of-way, noting the fence post issue was moot as the posts had been removed, and finding no significant difference between including undertakings in the formal order versus the recitals.

The main appeal was dismissed, with the costs question deferred pending receipt of written submissions.

The appellant appealed an order of the Superior Court of Justice that varied a prior order by deleting certain paragraphs and quashing a summons to witnesses.

The Court of Appeal upheld the motion judge's decision, finding that the witnesses and their documents had no relevance to the motion or the underlying claim against the bank.

The court directed that discoveries proceed before any further motions seeking to compel evidence or documents from third parties.

The appeal was dismissed with costs awarded to the respondent.

The appellant appealed his conviction for sexual assault and invitation to sexual touching.

He raised two grounds of appeal: first, that the trial judge interfered with defence counsel's cross-examination of the complainant, diverting counsel from relevant lines of inquiry; and second, that the trial judge's reasons were unbalanced, favoured the Crown, and failed to resolve material conflicts in evidence or meaningfully scrutinize the complainant's testimony.

The Court of Appeal rejected both grounds, finding that the trial judge's interventions were appropriate and necessary to ensure fair treatment of the witness and clarity of evidence, and that her reasons were careful, detailed, and balanced.

The appeal was dismissed.

The appellant appealed both his conviction and sentence for sexual assault and invitation to touching a person under the age of 14 for a sexual purpose.

The conviction appeal was dismissed as the trial judge's reasons were sufficient and addressed all material issues.

The sentence appeal was allowed on the basis that the trial judge imposed a sentence exceeding the Crown's submissions without providing notice or opportunity for further submissions, constituting an error in principle.

The appellate court reassessed the sentence and imposed a global sentence of six years (44 months consecutive to the prior 28-month sentence) rather than the trial judge's six years and four months.

Conviction appeal from a judge-alone trial for break and enter and robbery.

The sole issue was identification.

The appellant was identified by two witnesses who knew him as "Mack Truck" from a social group.

The witnesses identified him despite being masked and partially obscured during the incident.

The trial judge accepted the identification evidence based on recognition rather than identification of a stranger, and rejected the appellant's denial and his co-accused's claim of amnesia.

The Court of Appeal upheld the conviction, finding the trial judge properly considered the frailties of identification evidence while recognizing that recognition evidence by acquainted witnesses carries different considerations than stranger identification.

A solicitor appealed a motion judge's order regarding the assessment of legal accounts rendered to a client.

The solicitor challenged the characterization of 37 of 38 accounts as interim accounts falling within the limitation period for assessment, and sought production of the client's communications with another lawyer and tax documents.

The Court of Appeal upheld the motion judge's findings, finding no error in characterizing the accounts as interim based on the retainer agreement, account markings, and transmittal letters.

The court also found no basis to interfere with the motion judge's discretionary decision to refuse production of the requested documents as irrelevant to the assessment issues.

This is a procedural appeal concerning the construction of the trial record.

The respondents sued the appellants for misappropriation of funds from an apartment building.

At trial, the trial judge relied on expert accounting evidence from the respondents' expert and refused to allow the appellants to adduce their own expert evidence late in the trial.

On appeal, the appellants sought to include in their appeal book both their own expert's report and portions of the respondents' expert's report that had not been made exhibits at trial.

A chambers judge ordered these materials excised from the appeal book.

The appellants appealed this decision to the panel.

The appellant appealed an order of the Superior Court of Justice and moved to admit fresh evidence demonstrating that the respondent was under administration in the UK after the statement of claim and in liquidation after judgment.

The appellant argued this fresh evidence showed the respondent was not entitled to pursue the claim.

The Court of Appeal dismissed the motion to admit fresh evidence, finding it sufficiently clear from existing exhibits that the claim was a subrogated claim brought by the respondent's credit insurer and therefore not caught by bankruptcy proceedings.

The appeal was dismissed with costs awarded to the respondent.

The Crown appealed a decision of the Ontario Court of Justice that quashed convictions for minor traffic offences on the ground that officers had amended certificates of offence after serving offence notices but before filing the certificates with the court.

The Court of Appeal held that while the Provincial Offences Act does not expressly authorize such amendments, nothing in the statute precludes officers from correcting information on certificates before filing.

The validity of proceedings is preserved under section 90 of the Provincial Offences Act where the defendant has not been misled or prejudiced by minor clerical corrections.

The convictions were restored.

The appellant was convicted of second degree murder for shooting the victim through the heart in a bus shelter in broad daylight.

The appellant claimed self-defence under former s. 34(2) of the Criminal Code, asserting that the victim had unlawfully assaulted him.

The jury rejected this claim and found him guilty.

The trial judge imposed a parole ineligibility period of 14 years.

On appeal, the appellant raised three grounds regarding the jury instructions on self-defence and challenged the parole ineligibility period.

The Court of Appeal dismissed all grounds of appeal from conviction and the appeal from sentence, finding no error in principle or misdirection by the trial judge.