David Bruce Harris

In a criminal appeal involving cross-appeals by the Crown and the accused, the court held that the trial judge had no jurisdiction to quash a sexual assault count after the jury returned its verdict.

The court further held that the count, although spanning periods before and after the complainant reached the age of consent, did not undermine jury unanimity because the jury was instructed that non-consent had to be proved beyond a reasonable doubt.

However, the court found reversible error in the failure to give a proper limiting instruction on the use of extensive bad character evidence arising from allegations of long-term physical and sexual abuse within a household.

The Crown appeal was allowed, the accused’s appeal was allowed, the order quashing count 3 was set aside, and a new trial was ordered on all counts that had resulted in convictions.

The appellant appealed from convictions, arguing that the trial judge erred in his approach to collusion between complainants, failed to address a specific defence submission, and unreasonably admitted a videotaped statement after a two-year delay.

The Court of Appeal dismissed the appeal, finding that the trial judge adequately addressed the potential tainting of evidence, that the omitted defence submission would not have affected the outcome, and that the trial judge reasonably exercised his discretion to admit the videotaped statement given the reasons for the delayed disclosure.

The appellant appealed his conviction, challenging the admissibility of his statements on the basis of alleged Charter breaches.

The Court of Appeal dismissed the appeal, deferring to the trial judge's findings of fact.

The court held it was open to the trial judge to find the appellant was not detained during the early part of the search, the police were not required to reiterate his s. 10(b) rights, and he did not invoke his rights at the station.

The appellant was convicted of sexual assault, sexual interference, and invitation to sexual touching against a child.

He appealed the convictions, arguing the trial judge erred by excluding evidence of the complainant's prior sexual abuse by another individual under s. 276 of the Criminal Code, failing to provide limiting instructions regarding prior consistent statements and extrinsic misconduct, improperly characterizing a defence witness's evidence as potentially 'scripted', and inadequately answering a jury question on the standard of proof.

The Court of Appeal dismissed the appeal, finding no reversible errors in the trial judge's evidentiary rulings or jury instructions.

The appellants were convicted of first degree murder following a home invasion robbery where the victim was bound and shot.

At trial, they advanced a cut-throat defence, each accusing the other of being the shooter.

On appeal, they argued the trial judge misdirected the jury on the elements of constructive first degree murder under s. 231(5)(e) of the Criminal Code and party liability under s. 21(2).

The Court of Appeal held that while s. 21(2) can form the basis for first degree murder, the trial judge failed to adequately instruct the jury on what factual findings were required to conclude the non-shooter actively participated in the killing.

The appeals were allowed in part, the first degree murder convictions were set aside, and convictions for second degree murder were substituted.

The appellant sought leave to appeal a summary conviction appeal judge's decision upholding his conviction for mischief to property.

The conviction arose from a dispute with his neighbour over a shared laneway, where the appellant placed debris to block the neighbour's use.

The Court of Appeal dismissed the application for leave to appeal, finding that the issues raised did not involve questions of law with jurisprudential significance beyond the case, and the merits of the appeal were not sufficiently strong to warrant granting leave.

The appellant was charged with possessing child pornography between 1999 and 2006.

He claimed he collected the materials to create an artistic exhibition about child exploitation.

The trial judge acquitted him based on the pre-2005 artistic merit defence and the post-2005 legitimate purpose defence.

The Court of Appeal set aside the acquittal and entered a conviction.

The Supreme Court of Canada allowed the appeal and ordered a new trial, finding that the trial judge erred in law by applying the artistic merit defence to materials lacking artistic merit, and by using a purely subjective test for 'legitimate purpose'.

However, the Court of Appeal exceeded its jurisdiction by making its own factual findings to substitute a conviction instead of ordering a new trial.

The appellant appealed his convictions for perjury and attempt to obstruct justice arising from false testimony given as a proposed surety at a bail hearing.

At trial, the appellant argued he lacked the mens rea to commit perjury, claiming he did not know he had a criminal record due to his limited education, alcoholism, and belief that his record had been wiped clean.

During deliberations, the jury asked questions about whether reasonable doubt could be based on mental capacity, linguistic ability, or a misunderstanding of the law.

The trial judge answered by stating the jury was getting sidetracked, introducing the concept of a not criminally responsible defence, and advising that everyone is presumed to know the law.

The Court of Appeal held that these answers were wrong in law, unresponsive, and effectively deprived the appellant of his defence that he lacked the intent to deceive.

The appeal was allowed and a new trial ordered.

The accused was charged with possession of child pornography collected between 1999 and 2006.

At trial, he admitted the images were child pornography but claimed he collected them for a planned artistic exhibition to raise awareness about child exploitation.

The trial judge acquitted the accused, finding he could rely on the pre-2005 'artistic merit' and 'educational purpose' defences, as well as the post-2005 'legitimate purpose' and 'no undue risk of harm' defence.

The Crown appealed.

The Court of Appeal allowed the appeal, holding that the pre-2005 defences did not apply because the materials themselves lacked artistic or educational merit.

Furthermore, the post-2005 defence did not apply because the accused's possession of thousands of images, stored insecurely over seven years, posed an undue risk of harm to children.

A conviction was substituted.

The appellant appealed his conviction for aggravated assault arising from a fist fight at a football game.

He argued the trial judge erred in denying an adjournment to obtain a transcript for a section 11(b) Charter application, and in failing to apply the principles of R. v. W.(D.) when assessing credibility.

The Court of Appeal found no error in the denial of the adjournment.

However, the Court allowed the appeal and ordered a new trial because the trial judge's reasons suggested she believed the Crown witnesses simply because she disbelieved the defence witnesses, contrary to the W.(D.) principles.

The Minister of Justice applied for the forfeiture of recognizances entered into by sureties for two individuals who failed to surrender into custody pending their extradition proceedings.

The Court of Appeal reconsidered the test for estreatment, rejecting both a strict rule of total forfeiture and a purely fault-based approach.

Instead, the court affirmed a broad discretionary approach where the surety's diligence is one of several factors, balanced against the need to maintain the 'pull of bail'.

Applying these principles, the court ordered full forfeiture for one surety who lacked diligence and was likely complicit, and partial forfeiture for the other sureties based on financial hardship, the subsequent apprehension of one fugitive, and the excessive amount of the original bail.

The appellant was convicted of second degree murder after striking his wife in the head multiple times with a heavy mortar.

He appealed the conviction, arguing the trial judge misdirected the jury on the definition of 'recklessness' under s. 229(a)(ii) of the Criminal Code and erred in admitting the deceased's ante-mortem statements regarding his prior abusive conduct.

The Court of Appeal dismissed the appeal, finding that while the trial judge erred in the recharge on recklessness, the error was sandwiched between correct instructions and did not cause a miscarriage of justice.

The court also upheld the admission of the hearsay statements, finding they met the threshold reliability test and their probative value outweighed any prejudicial effect.

The appellant appealed his conviction for sexually assaulting his wife.

The trial judge was faced with conflicting versions of events but failed to explain how he resolved the credibility contest, relying on a misapprehended finding about the appellant's sexual appetite.

The Court of Appeal found the trial judge's reasons were so inadequate that proper appellate review was impossible.

The appeal was allowed and a new trial ordered.

The Crown sought leave to appeal a decision upholding the respondent's acquittal.

The Court of Appeal denied leave to appeal, finding that the question of whether a presumption was rebutted is one of mixed fact and law, and based on the trial judge's findings of fact, the appeal did not raise a pure question of law.

The Crown appealed the respondent's acquittal for possession of cocaine for the purpose of trafficking.

The trial judge had excluded the cocaine evidence, finding the arresting officer lacked objectively reasonable grounds to arrest the respondent, who was fleeing the scene of a reported robbery, due to a discrepancy in the suspect's weight description.

The Court of Appeal allowed the appeal, holding that in the totality of the circumstances, including the timing and the respondent fleeing the scene, the single discrepancy was not enough to render the arrest objectively unreasonable.

A new trial was ordered.

The appellant sought leave to appeal a summary conviction appeal decision that dismissed an appeal of a conviction.

The appellant argued ineffective assistance of trial counsel.

The Court of Appeal refused leave to appeal, finding that the appeal judge's conclusion—that the result would have been the same even with effective assistance—was a finding of fact or mixed fact and law, and therefore did not raise a question of law alone.

The appellant appealed his conviction, arguing that his request for an adjournment to retain counsel was improperly denied.

The Court of Appeal found that the judge who initially refused the adjournment made four material factual errors regarding the procedural history of the case.

The trial judge subsequently adopted that erroneous decision.

The summary conviction appeal judge erred by failing to address these factual errors.

Because the refusal of the adjournment was based on an erroneous factual foundation and the appellant was forced to proceed unrepresented in a case where the Crown sought a custodial sentence, the Court of Appeal allowed the appeal, vacated the conviction, and ordered a new trial.

The appellants were convicted of armed robbery and possession of a loaded restricted firearm following an incident at a clothing store where a third accomplice, who was armed, died in a confrontation with the storeowner.

On appeal, they challenged the jury instructions regarding the storeowner's evidence, the elements of armed robbery, and party liability.

The Court of Appeal dismissed the appeals against the armed robbery convictions and sentences, finding the jury instructions adequate.

However, the court allowed the appeals regarding the firearm possession convictions, setting them aside and ordering a new trial because the trial judge failed to instruct the jury on the specific elements of that offence.

The appellant was charged with building a deck without a permit.

The municipal prosecutor served a summons on the appellant's counsel, requiring him to testify against his client regarding correspondence he had sent on the client's behalf.

The appellant's motion to quash the summons was dismissed by the motion judge.

On appeal, the Court of Appeal allowed the appeal and quashed the summons, holding that calling opposing counsel to testify against their client is highly undesirable and should only be permitted in the most exceptional circumstances where the proper administration of justice demands it, which was not the case here.

The appellant appealed his conviction for selling crack cocaine to an undercover police officer, arguing the trial judge erred in instructing the jury on identification evidence and that the Crown improperly cross-examined him regarding his alibi and prior criminal record.

The Court of Appeal found that the jury instructions on identification, when read as a whole, properly distinguished between certainty and reliability.

The court also held that the Crown's cross-examination on the appellant's alibi and prior record was proper and cured by appropriate limiting instructions.

The appeal was dismissed.