David Lepofsky

The appellant was convicted of armed robbery and related offences following a jewellery store heist.

On appeal, he challenged the trial judge's jury instructions on eyewitness identification, the Crown's use of his pre-trial silence to prove joint possession of stolen watches, and the admission of hearsay evidence.

The Court of Appeal allowed the appeal, finding that the jury instructions on the frailties of photographic and video identification were inadequate.

Furthermore, the Crown improperly used the appellant's refusal to provide an explanation or sign a waiver form as evidence of guilt, violating his right to silence.

A new trial was ordered.

The appellant was convicted of multiple counts of sexual and physical assault involving three complainants over a 10-year period.

He appealed his convictions on the sexual offences, arguing the trial judge erred by admitting expert evidence on the dynamics of abusive relationships, by allowing similar fact evidence, and by giving improper jury instructions on credibility and reasonable doubt.

The Court of Appeal dismissed the appeal, finding the expert evidence was admissible to explain delayed disclosure, the jury instructions on similar fact evidence and credibility were adequate, and the pre-Lifchus charge on reasonable doubt did not mislead the jury.

The appellant was convicted of public mischief for allegedly providing false information to the police about a sexual assault.

At trial, a forensic expert testified that tests 'suggested' the buttons on the appellant's shirt were torn off when the shirt was undone.

The trial judge misapprehended this evidence, stating the expert concluded the buttons had not been ripped off while in the buttonhole space.

The Court of Appeal found this misapprehension played an essential part in the reasoning process resulting in the conviction.

The appeal was allowed, the conviction set aside, and a new trial directed.

The Crown appealed as of right from a decision of the Ontario Court of Appeal, which had allowed the accused's appeal from a conviction for second degree murder based on the trial judge providing the jury with a transcript of the Crown's closing address.

The Supreme Court of Canada allowed the appeal substantially for the dissenting reasons of Laskin J.A. in the court below, restoring the conviction.

The appellant appealed a second degree murder conviction arising from a jury trial following a shooting death.

She argued that the jury charge was deficient on intent because it did not refer to her use of prescribed anti-depressants, that the reasonable doubt instruction was inadequate, and that Crown counsel’s cross-examination created trial unfairness.

The court held that the charge on intent was adequate, the pre-Lifchus reasonable doubt instruction did not create a reasonable likelihood of jury misunderstanding when the charge was read as a whole, and the complained-of Crown conduct did not deprive the appellant of a fair trial.

The appeal was dismissed.

The accused was charged with sexually assaulting a young child.

At trial, the defence cross-examined the complainant on her two-and-a-half-year delay in reporting the abuse, suggesting fabrication.

The Crown called a child psychologist to testify that delayed disclosure is common and does not indicate falsehood.

The trial judge admitted the expert evidence, and the accused was convicted.

The Court of Appeal ordered a new trial, holding the expert evidence was inadmissible.

The Crown appealed to the Supreme Court of Canada solely on the admissibility of the expert evidence.

The Supreme Court dismissed the appeal, holding that the expert evidence was not necessary because the principle that delay does not equate to falsehood is not outside the normal experience of a jury and could be addressed through a proper jury instruction.

The appellant appealed both conviction and sentence following a jury trial for homicide.

He argued that the trial judge improperly highlighted a statement suggesting concealment of relevant evidence and failed to caution the jury against considering that statement in isolation, and further erred by not providing the jury with a written copy of the recharge.

The court held that the impugned statement was only a small part of a larger circumstantial case, that the charge properly instructed the jury to assess all of the evidence, and that the recharge procedure caused no unfairness because the corrections were minor and clearly explained.

The conviction appeal and sentence appeal were both dismissed.

The appellant appealed a sexual assault conviction and sought leave to appeal sentence.

The court held that the trial judge properly dismissed the application to adduce evidence of other sexual conduct under s. 276 of the Criminal Code, particularly where the application was not renewed after the complainant's subsequent testimony and the proposed evidence was irrelevant to the issues raised.

The court also found the jury charge fair and balanced.

Leave to appeal sentence was granted, but the sentence appeal was dismissed because there was no error in principle in refusing a conditional sentence for serious offences involving grave breach of trust and a vulnerable victim.

The appellant appealed convictions entered after guilty pleas to three counts of first degree murder and sought to withdraw those pleas.

He advanced a fresh evidence application alleging the pleas were not voluntary and that he had been deprived of effective assistance of counsel, and also sought to adduce evidence from an unrelated matter involving the same defence counsel.

The court held that the record did not support involuntariness or ineffective assistance, and that the pleas were voluntary, unequivocal, and informed.

The proposed collateral affidavits from the unrelated matter were found to have no probative value.

The fresh evidence application and the appeal were dismissed.

The appellant appealed a jury conviction for second degree murder arising from a spousal shooting in a case where intent was the sole issue and the Crown’s case was entirely circumstantial.

The majority held that the trial judge erred by providing the deliberating jury with only the Crown’s closing address after the jury requested it, without also providing the defence closing address.

The court found that closing addresses are persuasive advocacy, and fairness required balanced access where the case turned on competing inferences rather than direct evidence.

The majority concluded the imbalance created serious prejudice and that the curative proviso could not be applied.

A dissent would have dismissed the appeal, finding no miscarriage of justice.

The appellant was convicted of sexually assaulting a two-and-a-half-year-old child.

At trial, the Crown did not call the child to testify, but instead introduced out-of-court statements made by the child to others.

The trial judge admitted the statements without conducting a formal inquiry into whether it was necessary to rely on hearsay rather than calling the child.

The Supreme Court of Canada held that while the trial judge erred in failing to make a formal finding of necessity, the error did not result in a miscarriage of justice.

The uncontradicted expert evidence established that the child would have been traumatized by testifying and lacked testimonial competence, meaning a trial judge would inevitably have found the necessity requirement met.

The appeal was dismissed.

The Crown appealed a decision of the Ontario Court of Appeal which had allowed the accused's appeal from convictions for dangerous driving, impaired driving, and driving while disqualified, and ordered a new trial.

The Supreme Court of Canada allowed the Crown's appeal, agreeing with the dissenting reasons of Doherty J.A. at the Court of Appeal.

The Court found that the trial judge did not prejudge the credibility of a witness, the accused was not prevented from making full answer and defence, and the Crown's cross-examination did not exceed permissible limits.

The trial judgment was restored.

The appellant railway challenged an environmental prosecution arising from controlled burns that released dense smoke onto neighbouring properties, roads, and residences.

The appeal focused on whether Ontario's broad pollution prohibition in s. 13(1)(a) of the Environmental Protection Act was unconstitutionally vague or overbroad under s. 7 of the Charter.

The Court held that, in the environmental regulatory context, broad language may be constitutionally valid where the provision provides sufficient guidance for legal debate and does not capture merely trivial or imaginary impairments.

The Court rejected the vagueness and overbreadth claims, affirmed the constitutional applicability of the provision to the federal undertaking, and dismissed the appeal.

The appellant, a federal undertaking, appealed a decision regarding the application of the provincial Environmental Protection Act to the maintenance of its right-of-way.

The Supreme Court of Canada dismissed the appeal on the first ground, holding that the provincial environmental legislation constitutionally applies to the appellant based on established precedent.

The complainant, a Seventh Day Adventist, was terminated from her employment as a laboratory technician because her religious beliefs prevented her from working a scheduled Saturday shift.

The Board of Inquiry found that both the employer and the union engaged in adverse effect discrimination on the basis of creed.

The employer failed to reasonably accommodate the complainant by not specifically offering to allow her to work on Sunday at straight time or to arrange a shift swap, and did not establish that such accommodations would cause undue hardship.

The union also failed to reasonably accommodate the complainant by refusing to agree to an exemption from the collective agreement's overtime provisions.

The respondents were ordered jointly and severally to pay damages for lost wages and interest, and to review their work rules to prevent future discrimination.

The appellant police officer appealed a conviction and penalty of forfeiture of four days' pay for insubordination.

He was charged after engaging a stopped driver in an unsolicited religious conversation, contrary to a direct order previously issued to him.

The Ontario Civilian Police Commission found that the conversation occurred, was religious in nature, and breached the order.

The Commission dismissed the appeal against both conviction and penalty, noting the appellant's prior disciplinary record for identical conduct.

The respondents brought a motion to quash summonses issued by the Ontario Human Rights Commission and the complainant requiring the production of documents by the respondent employer.

The Board of Inquiry held that the Commission's investigative powers under the Human Rights Code do not preclude it from requesting a summons under the Statutory Powers Procedures Act.

The Board further found that the descriptions of the documents in the summonses met the test of reasonable distinctiveness and were relevant to the inquiry.

The motion to quash was dismissed, though one duplicate summons was quashed to avoid redundancy.

The respondent union brought a motion requesting further particulars of the human rights complaints alleging discrimination on the basis of creed.

The Board of Inquiry found that the Ontario Human Rights Commission had already made ample disclosure, but ordered the Commission to allow the union to re-examine its file.

The Commission also brought a motion seeking guidance on the presentation of evidence regarding reasonable accommodation.

The Board ruled that the Commission should elicit evidence on reasonable accommodation during its case-in-chief, even though the burden of proving accommodation short of undue hardship rests on the respondents.

The respondent employer and trade union brought preliminary motions arguing that section 10(a) of the Ontario Human Rights Code, 1981 does not impose a duty of reasonable accommodation, relying on the Supreme Court of Canada's decision in Bhinder.

The Board of Inquiry rejected this argument, finding that the wording of section 10(a) requires an exception to be reasonable and bona fide in the circumstances, which imports a duty to accommodate short of undue hardship consistent with the O'Malley decision.

The Board also dismissed the union's motions arguing it could not be joined as a party and that the complaints did not adequately allege a violation.

The applicant sought an exemption from paying union dues to OPSEU under section 53 of the Colleges Collective Bargaining Act, citing religious objections to the union's affiliation with the Ontario Federation of Labour (OFL), which had passed pro-choice resolutions and made donations to a pro-choice organization.

The applicant also alleged a breach of the duty of fair representation.

The Board dismissed the application, finding that the duty of fair representation complaint did not involve representation in relation to the employer.

Regarding the religious exemption, the Board held that OPSEU's mere affiliation with the OFL and the OFL's actions were too remote to establish that the applicant objected to paying dues to OPSEU because of his religious convictions.