Carthy

The appellant appealed a second degree murder conviction arising from the shooting death of his former partner after the end of their relationship.

He argued that the trial judge lacked jurisdiction under s. 633 of the Criminal Code to stand aside prospective jurors for potential partiality, and further alleged errors in the jury charge relating to motive evidence and the treatment of potentially confirmatory evidence for a suspect witness.

The Court of Appeal held that s. 633 permits a trial judge to stand aside jurors for suspected partiality as part of the flexibility built into the jury selection process, although the timing of the stand-asides before names were drawn was erroneous but cured without prejudice.

The court also held that no limiting instruction was required for threat evidence admitted as motive evidence and that the charge on supporting evidence for the impugned witness was consistent with the common-sense approach mandated by Vetrovec.

The appeal was dismissed.

The appellants appealed from a decision for which the court expressly adopted the reasons and result of the judge below.

The Court of Appeal dismissed the appeal, lifted the stay, and fixed appeal costs in favour of the respondent at $1,000.

The endorsement contains no further substantive analysis beyond concurrence with the reasons below.

The Crown appealed a sentence imposed after convictions for two counts of sexual assault, arguing that the trial judge unlawfully combined an intermittent custodial term with a conditional sentence.

The Court of Appeal held that s. 732(1) permits intermittent imprisonment only for sentences of 90 days or less, and that s. 742.1 requires the sentence to be served in the community rather than partly in custody and partly in the community.

Relying on the statutory wording and appellate authority, the court concluded that the blended sentence was illegal.

Leave to appeal was granted, the appeal allowed, and the weekend jail condition deleted.

The appellant challenged an order holding that findings of an Umpire under the Unemployment Insurance Act barred his constructive dismissal action against his public-sector employer.

The Court of Appeal held that the Umpire had decided the same factual issue central to the civil action, namely whether the employer had just cause based on simultaneous full-time employment and duplicate expense claims.

The court further held that a discharge after a criminal preliminary inquiry does not determine the same issue because it addresses only whether sufficient evidence exists to commit for trial.

Although courts retain discretion to refuse issue estoppel where its application would cause unfairness or injustice, the appellant failed to demonstrate any actual unfairness in the procedures before the Board of Referees and the Umpire.

The appeal was dismissed with costs.

The appellant appealed a second degree murder conviction arising from an entirely circumstantial prosecution based on motive, forensic evidence, and prior statements attributed to the deceased.

The principal issue was whether the jury charge was deficient for failing to distinguish direct from circumstantial evidence and for using pre-Lifchus language on reasonable doubt.

The court held that no formulaic circumstantial-evidence instruction was required so long as the jury was clearly told that guilt had to be the only reasonable inference proven beyond a reasonable doubt.

The court also held that the Crown's speculative suggestions, the manslaughter instruction, and the cautions concerning hearsay evidence did not cause unfairness warranting a new trial.

The conviction appeal was dismissed.

The appellants appealed only the assessment of damages following a negligence finding against criminal defence counsel arising from the handling of an abduction prosecution and plea discussions.

The Court of Appeal held that the respondent could not recover amounts paid toward his mother's legal fees or amounts paid by Legal Aid, as those losses were not legally attributable to the appellants.

The majority further held that while the trial judge erred in linking the respondent's family estrangement to counsel's negligence, the expert psychiatric evidence supported a reduced award for depression caused by the negligent conduct of the defence.

The damages award was reduced to $15,000, with prejudgment interest and trial costs preserved on the basis fixed below.

The Crown appealed from the dismissal of provincial offences charges arising from the sale of cigarettes to a 16-year-old who produced a falsified school identification card.

The central issue was whether the statutory defence in s. 3(3) of the Tobacco Control Act, 1994 permitted reliance on identification other than the five forms listed in O. Reg. 613/94.

The court held that the regulation created an exhaustive list of prescribed identification and that the lower courts erred in treating it as merely illustrative.

The statutory due diligence defence was therefore unavailable on the facts, convictions were entered, and absolute discharges were granted.

The appellant municipality challenged a trial judgment arising from a bicycle accident on a paved roadway that also formed part of a fitness path.

The court held that s. 4(1) of the Occupiers’ Liability Act did not apply because the location was regularly used for vehicular traffic and was more than a recreational trail.

The court upheld the findings of no contributory negligence and the general damages award, but set aside a $50,000 award for loss of competitive advantage because the evidence of future earning capacity loss was meagre and unquantified.

The appeal was allowed in part, the cross-appeal was dismissed, trial costs were reduced to party-and-party, and there were no costs on the appeal or cross-appeal.

In a commercial franchise and sublease dispute, the appellant challenged an order granting the respondents possession of premises.

The court held the respondents failed to establish any claim to possession under an alleged new lease because they were not parties to it and adduced no admissible evidence that it was entered into on their behalf.

The court also held the respondents failed to prove the factual foundation for any continuing month-to-month tenancy under the original lease, namely the absence of notice from the landlord.

The appeal was allowed, the judgment below set aside, and the application dismissed with costs to the appellant.