Catherine Galligan

On a Crown application in a criminal price-fixing prosecution, the court considered whether factual information supplied by cooperating corporations to the Competition Bureau during immunity and leniency proffers was protected from disclosure by settlement privilege or solicitor-client privilege.

The court held that solicitor-client privilege was waived when the information was voluntarily provided to the prosecuting authorities for use against other accused persons.

It further held that settlement privilege did not extend to factual information given in circumstances where the providers knew the information would be used to prosecute others and were themselves no longer exposed to resulting criminal or civil jeopardy.

In any event, the accused's constitutional right to make full answer and defence would override settlement privilege, and the applicable disclosure standard was the first party Stinchcombe regime.

The applicant sought a stay of proceedings unless the Attorney General funded his defence at Legal Aid Ontario rates pursuant to a Rowbotham application.

Legal Aid had refused continued funding after the accused sought to change counsel.

The court accepted that counsel was essential to ensure a fair trial given the seriousness of the drug trafficking charge, the complexity of the proceedings, and the accused’s ability to participate.

After reviewing the applicant’s financial circumstances, including assistance from family members and equity in his spouse’s home, the court concluded that he lacked the means to retain counsel.

A conditional stay of proceedings was granted unless state-funded counsel was provided.

The applicant, facing 11 serious fraud charges, brought a Rowbotham application seeking a conditional stay of proceedings until state-funded counsel was provided.

Legal Aid had refused his application because his family members declined to complete financial assessments.

The court found that the case was complex, the applicant lacked the legal training to represent himself, and he did not have the personal financial means to retain counsel.

The court held that family members are not obligated to fund an accused's defence.

The application was granted, and a conditional stay was entered until the Attorney General provides funding for counsel.

The appellant, a Canadian citizen, appealed his committal for extradition to the United States on a charge of sexual battery involving his daughter, and sought judicial review of the Minister of Justice's surrender order.

He argued that he had already been punished in Ontario for the same conduct, and that extradition would violate his rights under sections 6 and 7 of the Charter given the mandatory minimum sentence of life imprisonment without parole for 25 years in Florida.

The Court of Appeal dismissed the appeal and the application for judicial review, finding that the Ontario sentence did not punish him for the Florida conduct, the potential penalty did not shock the conscience of Canadians given the horrific nature of the offence, and prosecution in Canada was not a viable option.

The appellant appealed convictions for trafficking in cocaine and conspiracy to traffick in cocaine arising from a jury trial.

During deliberations, the jury asked whether defence counsel had been appointed by the court, and the trial judge answered that question in the negative while also instructing that the matter was irrelevant.

The court held that the jury should instead have been told there was no evidence on the point, that it was totally irrelevant, and that they should not speculate about it.

Because the response introduced potentially prejudicial information bearing on the appellant's financial means and impaired the appearance of trial fairness, the appeal was allowed, the conviction was quashed, and a new trial was ordered.

The appellant appealed drug trafficking and proceeds convictions on the ground that he was wrongly denied a jury trial after failing to attend on the scheduled trial date.

The court held that under s.598(1) of the Criminal Code the onus rested on the accused to establish a legitimate excuse, and the pre-trial judge was entitled to reject the illness explanation as not credible.

The court further held that the trial judge did not err in refusing to reconsider the pre-trial s.598(1) ruling on the basis that only the trial judge had jurisdiction.

The appeal from conviction was dismissed.

The appellant appealed a jury conviction for possession of cocaine for the purpose of trafficking, arguing that the trial judge failed to leave simple possession with the jury as an included offence.

The court held that a jury must be instructed on both the principal offence and any included offences supported by the evidence.

Given the live issue over whether any possession proven was for the purpose of trafficking, the omission was an error.

Applying the governing included-offence authorities, the court found the error could not be cured and ordered a new trial.

The sentence appeal was not addressed.