David H. Doherty

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.

The Crown appealed the sentence imposed on the respondent for sexual interference with an 11-year-old child.

The respondent, then 25 years old, had befriended the victim, engaged in grooming behaviour via text and telephone, and subsequently raped her.

The trial judge sentenced him to 30 months' imprisonment with 15 months credit for presentence custody.

The Court of Appeal found that the sentencing judge erred by failing to give proper effect to the principles of deterrence and denunciation, by failing to recognize that the respondent had sought out a young girl, and by failing to consider the significant impact of the offence on the victim as a separate aggravating circumstance.

The Court of Appeal allowed the appeal and increased the sentence to 33 months' imprisonment (resulting in an effective sentence of 4 years after credit for presentence custody).

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 respondent mother brought a motion to quash the appellant father's appeal from a trial judgment made in his absence.

The father had sought to reduce his child support obligation, end his spousal support obligation, and rescind support arrears.

The trial judge proceeded without the father, who was absent due to securing employment on his first day of work.

The mother argued the father must first bring a motion to set aside the trial order in Family Court before appealing to the Court of Appeal.

The Court of Appeal held that the trial court has jurisdiction under rule 25(19)(e) of the Family Law Rules to set aside an order, and that the proper procedural route was to bring a motion to set aside in Family Court rather than appeal directly to the Court of Appeal.

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 appellant was convicted of sexually assaulting a young woman (A.Y.) and sentenced to two years less one day.

On appeal, the appellant challenged the conviction on the ground that the trial judge improperly used the complainant's prior consistent statement—an anonymous email sent to police the morning after the alleged assault—as corroboration of her trial testimony.

The trial judge had explicitly stated that the email was "corroboration of her evidence." The Court of Appeal held that while the email was admissible for limited purposes (to rebut the defence theory regarding motive and to assess the complainant's credibility through her conduct), it could not be used as corroboration in the legal sense because it was not from an independent source and could not confirm the veracity of the complainant's testimony unless improperly used for the truth of its contents or by treating consistency as confirmatory.

The court found the trial judge erred in law and allowed the appeal, quashing the conviction and ordering a new trial.

The appellant was convicted after a judge-alone trial of dangerous driving while racing causing bodily harm and dangerous driving while racing causing death.

The Crown's case was that the appellant and Tyler Dodd were racing their vehicles on Highway 21 near Owen Sound when Dodd lost control, crossed into oncoming traffic, and struck another vehicle, killing Dodd and injuring the other driver.

The appellant appealed his convictions on three grounds: challenging the finding that the vehicles were racing at the time of the accident, challenging the admissibility of his statement to police, and challenging the causation finding.

The Court of Appeal dismissed the appeal, upholding all findings of the trial judge.

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.

An appeal concerning whether the abuse of process doctrine prevented Federated from leading evidence that a driver was insured at the time of an accident, despite a prior conviction for driving without insurance.

The driver's vehicle had been insured by Intact, which claimed it had cancelled the policy before the accident.

A priority dispute between the insurers proceeded to arbitration.

The arbitrator permitted Federated to lead evidence that Intact had not followed required cancellation procedures, meaning the driver was in fact insured.

The application judge reversed this decision, but the Court of Appeal allowed the appeal and restored the arbitrator's order, holding that the abuse of process doctrine did not prevent relitigation in these circumstances.

The appellant was convicted of several gun-related charges arising from a single incident in which he allegedly discarded a loaded handgun while fleeing from police.

The Crown's case relied on police testimony that the appellant appeared to have a gun and dropped it near where he was tackled, with the gun found in close proximity and a magazine still in his hand.

The defence argued the gun belonged to another individual who had placed it at the location.

The jury convicted on all counts save one, and the trial judge imposed an effective sentence of 43 months.

The appellant appealed both conviction and sentence on three grounds: improper jury selection procedures, prejudicial comments by the trial judge regarding defence counsel's opening, and inadequate jury instructions on credibility assessment.

The Court of Appeal dismissed all grounds of appeal.

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 a summary judgment dismissing her motor vehicle negligence action arising from a collision at an intersection in London, Ontario.

The appellant's vehicle struck the respondent's pickup truck after the appellant proceeded through a stop sign.

The motion judge found the respondent was not speeding and could not see the appellant's vehicle due to an intervening cement truck.

The appellant argued the respondent should have been more cautious given the presence of stopped vehicles.

The Court of Appeal upheld the summary judgment, finding no palpable and overriding error in the motion judge's conclusion that the respondent had no duty to reduce speed or take extra precautions under the circumstances.

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.

The appellant appealed his conviction for dangerous driving causing bodily harm.

The Crown's case relied on evidence that the appellant was driving at a very high rate of speed (40-50 km/h above the speed limit) and possibly racing another vehicle when he entered an intersection where a collision occurred with a vehicle making a left turn.

The appellant argued he was driving only somewhat over the speed limit and that the accident resulted from the other driver's illegal left turn.

The Court of Appeal dismissed all four grounds of appeal, finding the trial judge's instructions on the fault component of dangerous driving were consistent with R. v. Roy, the expert evidence was properly admitted, the instruction regarding Highway Traffic Act convictions was harmless, and the verdict was reasonable.

The appellant appealed an order made by Justice Conway of the Superior Court of Justice regarding production of materials and privilege issues.

The appellant did not attend the motion before Conway J., although properly served.

The respondents did not object to the order.

The Court of Appeal found that the issues were best litigated before Conway J. in the context of the ongoing proceeding, as she was in a better position to tailor an order to the specific circumstances and issues relating to production orders and protection of privileges.

The appeal was dismissed with costs awarded to the respondent estate trustee and the non-party respondent.

The appellant appealed a disposition of the Ontario Review Board ordering his continued detention at Waypoint Centre for Mental Health Care.

The appellant, found not criminally responsible on account of mental disorder for assault, argued that he had reached a treatment impasse at Waypoint and sought an independent assessment and transfer to a less secure facility.

The Court of Appeal dismissed the appeal, finding that the evidence did not substantiate the existence of a treatment impasse and that the Board's decision to maintain detention at Waypoint was well-supported by evidence regarding the appellant's risk to public safety, including his history of water intoxication, threats to staff, and previous elopement from other facilities.

The appellant appealed a disposition of the Ontario Review Board that continued his conditional discharge from the North Bay Regional Health Center.

The appellant argued that the Board failed to focus on whether he posed a significant risk of serious harm to the public as required by s. 672.54 of the Criminal Code, and that the Board erred in failing to consider whether a community treatment order under the Mental Health Act could mitigate residual risk.

The Court of Appeal dismissed the appeal, finding that the Board's decision was reasonable given the appellant's schizoaffective disorder, his history of violence, and the evidence that he would discontinue medication if absolutely discharged.

The appellant sought leave to appeal the dismissal of his Summary Conviction Appeal by Justice Ferguson, which upheld the conviction and sentence imposed by Justice Armstrong at trial.

The primary issue concerned whether the trial judge was obliged to demonstrate an appreciation of the potential impact of interpreter use on credibility assessment.

The Court of Appeal held that while trial judges must bear in mind the effect of testifying through an interpreter on credibility assessment, no specific formulation is required and the approach depends on the circumstances of each case.

The court found no evidence in the trial record that the trial judge failed to account for the appellant's use of an interpreter.

Leave to appeal was refused.

The appellants were convicted of drug and firearm offences following a search executed pursuant to a telewarrant.

The trial judge dismissed their Charter section 8 application challenging the validity of the warrant.

On appeal, the appellants argued that the trial judge erred in refusing to permit cross-examination of the affiant regarding the corroborating evidence from the property manager.

The Court of Appeal found that the trial judge committed errors in principle by refusing cross-examination and by relying on his own assessment of the confidential informant's reliability to deny the motion.

The court held that when the defence demonstrates a reasonable likelihood that cross-examination will generate evidence tending to discredit the grounds for the warrant's issuance, cross-examination must be permitted.

The convictions were quashed and new trials ordered.

An appeal from a Superior Court of Justice decision was settled prior to judgment.

The Court of Appeal dismissed the appeal with no costs awarded to either party.