David H. Doherty

The appellant, who was found not criminally responsible for index offences in 2007, appealed a disposition of the Ontario Review Board that concluded he constituted a significant threat to the safety of the public and ordered his continued detention without community living privileges.

The Court of Appeal allowed the appeal, finding the Board's decision unreasonable because it failed to address conflicts and ambiguities in the expert evidence regarding whether the appellant posed a significant threat, particularly given his lack of violent offences since 2003.

The matter was returned to the Board for a fresh determination.

The appellant appealed his sentence of 4 years and 10 months.

Following the Supreme Court's decision in R. v. Summers, the parties agreed the appellant was entitled to enhanced credit for pre-sentence custody.

The Court of Appeal allowed the appeal and varied the sentence to time served, while noting the original sentence length was otherwise warranted.

The appellant appealed an order setting aside a conviction and ordering a new trial.

The Court of Appeal allowed the appeal and restored the conviction, finding that the trial judge was entitled to rely on evidence that the officer tested the radar device before and after use and was a qualified operator to establish a prima facie case of accuracy.

The court declined to address whether a broader presumption of accuracy should be created for radar guns.

The appellant was convicted of importing narcotics after a 26-month delay between his arrest and trial.

He appealed his conviction, arguing that his right to be tried within a reasonable time under s. 11(b) of the Charter was infringed.

The appellant contended that the 15.5-month delay caused by his efforts to retain counsel of choice, exacerbated by Legal Aid Ontario's refusal to transfer his certificate, should be characterized as institutional or Crown delay.

The Court of Appeal dismissed the appeal, holding that the delay was part of the inherent time requirements of the case and that a s. 11(b) application is not the proper forum to review the reasonableness of Legal Aid Ontario's decisions.

The appellant, found NCR in 2007, appealed an Ontario Review Board order transferring him from a general forensic unit to a secure forensic unit.

The hospital recommended the transfer because the appellant's repeated breaches of the anti-smoking policy and drug use resulted in the suspension of his indirectly supervised passes, making his detention on the general unit more restrictive due to staffing limitations.

The secure unit offered better access to necessary substance abuse programming.

The Court of Appeal dismissed the appeal, finding the Board's disposition reasonable as it would enhance the appellant's rehabilitation and reintegration into society.

The appellant appealed his convictions for two counts of first-degree murder, arguing the trial judge erred in instructing the jury on how intoxication relates to planning and deliberation, and unfairly commented on the defence toxicologist's evidence.

The Court of Appeal dismissed the appeal, finding the jury instructions contained all essential legal elements and properly directed the jury to consider intoxication separately for intent and for planning and deliberation.

The court also found the trial judge's comments on the expert evidence were supported by the record and not objected to by trial counsel.

The appellants were acquitted of first degree murder and convicted of second degree murder.

They appealed their convictions on the basis that the trial judge erred during jury selection by unilaterally ordering the use of static triers for challenges for cause, despite the appellants' requests for rotating triers and the absence of an application under s. 640(2.1) of the Criminal Code.

The Court of Appeal held that the improper use of static triers deprived the appellants of their statutory right to rotating triers, rendering the court improperly constituted to try them.

The curative proviso in s. 686(1)(b)(iv) could not apply.

The Court also found the trial judge erred in failing to answer a jury question regarding closing arguments.

The appeal was allowed and a new trial ordered for second degree murder.

The applicant sought judicial review of the Minister of Justice's decision to surrender him to the United States, arguing that extradition would violate his section 7 Charter rights due to risks to his personal safety as a cooperating inmate.

The Court of Appeal dismissed the application, finding that the Minister reasonably balanced the risks against the protective measures available in the U.S. prison system.

The Court held that the applicant did not face a level of risk beyond that of most cooperating inmates and that potential placement in a special housing unit would not amount to cruel and unusual punishment.

The appellant appealed his conviction for second degree murder and the sentence increasing his period of parole ineligibility.

On the conviction appeal, the appellant argued the trial judge erred in instructing the jury on intoxication and the required intention for murder.

The Court of Appeal found the trial judge properly instructed the jury on the relevance of intoxication to mens rea and adequately summarized the defence's position regarding an alcohol-induced blackout.

On the sentence appeal, the Court found no error in the trial judge's exercise of discretion in weighing aggravating and mitigating factors.

Both the conviction and sentence appeals were dismissed.

The young person appealed his convictions for sexual assault and unlawful confinement as an aider and abettor.

The Court of Appeal upheld the convictions relating to the main sexual assault in the bedroom, finding the trial judge's factual findings supported the inference that the appellant intended to assist his friends.

However, the Court quashed the convictions relating to an earlier 'tickling incident' because the trial judge failed to provide any analysis of how the appellant aided and abetted that specific assault.

The appeal was allowed in part, with a new trial ordered on the quashed counts.

The appellant appealed his convictions for robbery and firearm-related offences, as well as his 11-year sentence.

He argued the trial judge misapprehended medical and gunshot residue evidence, and applied uneven scrutiny to the defence evidence.

The Court of Appeal dismissed the conviction appeal, finding no error in the trial judge's assessment of the evidence.

On the sentence appeal, the court upheld the 11-year sentence as fit but granted leave to vary the pre-sentence custody credit to 1.5:1 in accordance with R. v. Summers.

The appellant appealed his sentence for possession of a sawed-off shotgun on a public street.

The trial judge had rejected a joint submission for a conditional sentence, finding it woefully inadequate and imposing a custodial sentence instead.

The Court of Appeal upheld the trial judge's decision, agreeing that possession of deadly prohibited firearms requires a denunciatory sentence.

The appeal was allowed only to vary the terms of the s. 109 prohibition order to clarify the lifetime prohibition.

Following a successful appeal regarding the operation of a homeless shelter, the appellant church sought full indemnity costs of $163,479.54, arguing it was a public interest litigant.

The respondent municipality argued no costs should be awarded as it was also acting in the public interest.

The Court of Appeal rejected both arguments, finding the case did not meet the exceptional threshold for full indemnity costs under Carter, nor did the municipality's enforcement of its by-law exempt it from the normal costs rules.

Costs were awarded to the appellant on a partial indemnity basis fixed at $90,000.

The appellant tenant sued the respondent landlord for damages arising from two sewer backups, alleging breach of lease, negligence, and misrepresentation.

The motion judge struck most claims, finding they were barred by the lease's covenant to insure.

On appeal, the Court of Appeal held that while the covenant to insure barred the negligence and breach of contract claims, it was not plain and obvious that it or the 'entire agreement' clause barred the negligent misrepresentation claim.

The Court also allowed the tenant's claim that the landlord was estopped from relying on the covenant to insure for the second backup to proceed.

The appellant appealed his convictions, raising issues regarding the disclosure of police protocols for confidential informants, the validity of a search warrant, and the finding of possession.

The Court of Appeal dismissed the appeal, finding that the protocols were not relevant when requested, the search warrant was properly granted based on compelling information, and there was ample evidence to support the finding of possession.

The appellant called the police to report a car theft.

The responding officer smelled marijuana and saw drug paraphernalia in her apartment.

He told her he could arrest her but wanted to know what was going on, without informing her of her right to counsel.

The appellant subsequently showed the officer drugs belonging to her boyfriend.

The Court of Appeal held that the appellant was psychologically detained when the officer threatened arrest, and the failure to provide s. 10(b) rights was a serious breach.

The evidence was excluded under s. 24(2) of the Charter, the appeal was allowed, and acquittals were directed.

The appellant appealed his convictions and sentence for sexual assault, assault, choking, and forcible confinement.

He argued the trial judge relied on stereotypical notions of common sense and conducted an unbalanced credibility analysis.

The Court of Appeal found no error in the trial judge's credibility assessment or reliance on common sense, noting the trial judge meticulously reviewed the evidence, including security video and independent witness testimony.

The appeal from conviction was dismissed, and the sentence of 18 months minus a day was upheld as fit.

The appellant appealed a disposition of the Ontario Review Board ordering his detention.

The Court of Appeal found no basis to interfere with the Board's finding that the appellant posed a significant risk to the public.

While the appellant argued that a treatment impasse had been reached requiring an alternative assessment, this request was not made before the Board.

The appeal was dismissed, but the Court encouraged the Board to consider exercising its jurisdiction to address the treatment impasse at the upcoming annual review.

The appellant appealed a disposition of the Ontario Review Board, arguing the Board lacked jurisdiction because he did not suffer from a 'disease of the mind' and challenging the constitutionality of the process under s. 672.54 of the Criminal Code.

The Court of Appeal dismissed the appeal, holding that the Board's jurisdiction is statutory and unaffected by medical assertions regarding a 'disease of the mind', which is a legal concept relevant to criminal accountability, not public safety risk assessments.

The Court also rejected the Charter arguments, noting the constitutionality of the process was settled by the Supreme Court in Winko.

The appellant appealed his conviction and sentence.

On the conviction appeal, he challenged the admission of opinion evidence from witnesses identifying him as the "kicker" in a video of an assault, and the trial judge's failure to address certain exculpatory evidence.

The Court of Appeal dismissed the conviction appeal, holding that the witnesses' prior acquaintance with the appellant and their viewing of the video immediately after the assault placed them in a better position than the trial judge to make an identification.

The court also found no error in the trial judge's treatment of the evidence.

The sentence appeal was dismissed as the appellant had served his custodial term and abandoned the appeal.