David H. Doherty

The appellant appealed his convictions and 11-year sentence for a series of violent robberies.

He argued that the 16.5-month delay to trial violated his s. 11(b) Charter rights and that the trial judge misapprehended DNA evidence.

The Court of Appeal dismissed the conviction appeal, finding the delay was not exceptional and there was no misapprehension of evidence.

The sentence appeal was also dismissed, as the 11-year sentence was fit given the gratuitous violence, the vulnerability of the victims, and the appellant's prior record.

The appellant was charged with aggravated assault by wounding after striking a co-worker with a knife.

At trial, the judge left the included offence of assault causing bodily harm with the jury, despite the undisputed evidence that the injury amounted to a wounding.

The jury acquitted the appellant of aggravated assault but convicted him of the included offence.

On appeal, the Court of Appeal held that the included offence should not have been left with the jury, as there was no reasonable view of the evidence that could yield an acquittal on the main charge and a conviction on the included offence.

The conviction was quashed and an acquittal entered.

The appellant trustee in bankruptcy appealed the dismissal of its motion to annul the respondent's discharge from bankruptcy.

The appellant argued that a finding in a prior proceeding established that the respondent had fraudulently concealed assets.

The Court of Appeal dismissed the appeal, holding that issue estoppel did not apply because fraud was not pleaded or necessarily bound up with the determination in the prior proceeding, and the respondent had no notice that fraud was an issue.

The court also held that a subsequent bankruptcy order against the respondent did not stay the appeal.

In a Reference directed by the Minister of Justice under s. 696.3(3)(a)(ii) of the Criminal Code regarding the 1959 murder conviction of Steven Murray Truscott, the parties sought directions on the scope of the issues.

The Court of Appeal ruled that the Reference is limited to the issue of fresh evidence, which means material not presented in prior court proceedings (including the 1966 Supreme Court Reference).

The Court further held that the Kaufman Report does not limit the evidence the parties can tender, and that transcripts from the Kaufman investigation are part of the record but must satisfy hearsay exceptions to be admitted for their truth.

The applicants obtained a judgment against a moving company after their belongings were stolen from a trailer parked on the street.

When the judgment went unsatisfied, they brought an application under s. 132 of the Insurance Act against the moving company's insurers.

The application judge found that the loss fell under the $1 million warehouse insurance limit rather than the $500,000 transportation insurance limit.

The Court of Appeal allowed the primary insurer's appeal in part, holding that the breach was a failure to deliver under the transportation contract, so the $500,000 transportation limit applied.

However, the Court upheld the application judge's finding that the insurer was liable for post-judgment interest and costs exceeding the policy limit.

The appellants were convicted of fraud over $5,000 and public mischief in relation to a scheme to defraud an insurer by falsely reporting a truck as stolen.

A co-accused was acquitted.

The appellants appealed, arguing the jury's verdicts were inconsistent and their convictions unreasonable.

The Court of Appeal dismissed the appeal, finding the evidence against the appellants was much stronger than against the acquitted co-accused, and the convictions were reasonable based on the evidence.

The appellants appealed a final order dealing with the passing of accounts taken pursuant to powers of attorney.

The Court of Appeal found that the evidence supported the motion judge's finding that the respondent wife had satisfactorily accounted to her husband during his lifetime for all transactions executed under the powers of attorney, and that the husband was entitled to and did bestow gifts on her.

The appeal was dismissed with costs fixed at $6,000.

The appellant appealed his convictions, arguing the trial judge erred in her Vetrovec warning regarding a Crown witness whose evidence partially assisted the appellant, and in her instructions on party liability.

The Court of Appeal dismissed the appeal, finding the trial judge clearly limited the Vetrovec caution to evidence assisting the Crown and properly instructed the jury that they could only convict if satisfied the appellant was a party to the stabbing perpetrated by his co-accused.

The appellant appealed his conviction, arguing that the confirmatory evidence of a witness was not sufficiently cogent to restore the trial judge's faith in another witness's testimony.

The Court of Appeal dismissed the appeal, holding that the weight to be given to the confirmatory evidence was a matter for the trial judge and that it was not unreasonable for the trial judge to find the evidence capable of confirming the central question.

The Crown appealed an acquittal entered by the trial judge.

The trial judge found that the search warrant was based on information obtained from a prior unreasonable search, rendering the subsequent search warrantless and in violation of section 8 of the Charter.

The trial judge excluded the evidence under section 24(2) of the Charter, emphasizing the seriousness of the breach.

The Court of Appeal found no error in the trial judge's analysis and dismissed the appeal.

The appellant appealed his conviction, arguing the trial judge erred in finding the necessary mens rea based on wilful blindness.

The trial judge found the appellant should have suspected there was more to a parcel he delivered to a jail than clothing.

The Court of Appeal held that the trial judge erred in law by applying an objective standard ('should have alerted') rather than a subjective one, and by finding a level of suspicion ('may be more') that fell short of the 'probability' required for wilful blindness as defined in R. v. Jorgensen.

The conviction was quashed and a new trial ordered.

The appellant appealed his conviction, arguing the trial judge erred in refusing an adjournment when he attended the trial date with newly retained counsel, forcing him to proceed unrepresented during the Crown's case.

The Court of Appeal dismissed the appeal, finding that although the trial judge might have made further inquiries before refusing the adjournment, the fairness of the trial was not compromised.

The trial judge granted a lengthy adjournment after the Crown's case, allowing the appellant to retain counsel who was provided with transcripts and disclosure, and who subsequently recalled a Crown witness and presented the defence.

The appellant, holding a perfected general security agreement over the assets of a company in receivership, appealed a motion judge's decision granting priority over three injection molding machines to the unpaid supplier.

The supplier had delivered the machines but retained title pending payment and electrical safety certification, which had not yet been obtained.

The Court of Appeal dismissed the appeal, upholding the motion judge's finding that because the conditions of sale were not met, the debtor had not acquired any rights in the machines to which the appellant's security interest could attach under the Personal Property Security Act.

The respondent and other companies sued the appellant and other parties for defects in concrete used to build houses.

The respondent obtained summary judgment against the appellant on the contract claim for 'hard costs' of rebuilding the homes.

The appellant appealed, arguing that summary judgment would not simplify the proceedings.

The Court of Appeal dismissed the appeal, finding the contract claim was discrete from the tort claims and raised no genuine issue for trial, and that the summary judgment significantly simplified the proceedings.

The appellant appealed an order of the motion judge.

The Court of Appeal dismissed the appeal, noting that the motion judge did not address the relief sought under Rule 8.06(3) of the Rules of Civil Procedure.

The Court clarified that the order does not preclude the appellant from bringing a further motion for that relief upon proper service of the two individuals alleged to be partners.

The appellant appealed his conviction and sentence for sexual assault against a nine-year-old complainant.

The Court of Appeal found the trial judge's reasons for both conviction and sentence to be inadequate.

However, the conviction was upheld because the appellant's own testimony admitted to an act of fellatio, and his explanation that the child initiated it while he slept was rejected as incapable of belief.

Because the trial judge's factual findings regarding other sexual acts were unclear, the Court of Appeal proceeded on the basis of a single act of fellatio.

The appeal from sentence was allowed, and the sentence was reduced from four years and seven months to 15 months, taking into account seven months of pre-sentence custody.

The appellant appealed his convictions for importing narcotics, arguing that the trial judge erred in his jury instructions regarding the assessment of witness credibility, the appellant's videotaped statement, and the position of the defence.

The Court of Appeal dismissed the appeal, finding that the instructions on credibility and the videotaped statement were fair and did not subject the appellant's statement to special scrutiny.

Although the trial judge's summary of the defence position was brief, the single issue of lack of knowledge was made crystal clear to the jury throughout the charge.

Following an appeal in which the appellant IBM enjoyed substantial success, the Court of Appeal fixed the appellant's costs at $12,500 all inclusive.

The applicant, a Canadian citizen, sought judicial review of the Minister of Justice's order surrendering him to the United States to face charges of conspiracy to distribute cocaine.

The applicant argued that the American jurisdictional claim was unfounded, that his surrender violated his section 6(1) Charter right to remain in Canada, and that he was denied procedural fairness.

The Court of Appeal dismissed the application, finding that the Minister correctly applied the substantial connection test to determine that Canada would have jurisdiction in similar circumstances, reasonably weighed the factors favouring prosecution in the United States, and afforded the applicant adequate procedural fairness.

The appellant appealed from a decision of the Summary Conviction Appeal Court, arguing that the trial judge's reasons were inadequate and that the trial judge erred in applying the W.(D.) principles.

The Court of Appeal found no error of law in the Summary Conviction Appeal Court Judge's conclusion that the trial judge's reasons met the functional test for adequacy set out in Sheppard, nor in the conclusion that the trial judge correctly applied W.(D.).

Leave to appeal was granted, but the appeal was dismissed.