David M. Brown

The appellant was convicted of first-degree murder in the death of his mother in a fire.

Following conviction, he raised a defence of not criminally responsible on account of mental disorder (NCR).

The jury rejected the NCR defence.

On appeal, the appellant challenged the trial judge's answer to a jury question regarding whether the appellant would be eligible for insurance proceeds if found NCR.

The Court of Appeal found that the trial judge erred by failing to instruct the jury that it could not consider the financial consequences of an NCR verdict.

The court held that the error was not harmless and that the curative proviso was unavailable.

The conviction was set aside and a new second-stage trial on the NCR issue was ordered.

The appellants, as estate trustees of the Estate of James Kay, appealed a summary judgment dismissing their action against the Hull Defendants (Hull & Hull LLP, Ian M. Hull, and Doreen Lok Yin So).

The appellants had previously agreed to a Minutes of Settlement whereby the Estate would pay the Hull Defendants a specific sum for legal fees, and had obtained court approval of this settlement.

The appellants did not seek to set aside the consent settlement approval order, acknowledging it was favorable to them with no apparent basis for setting aside on grounds of fraud or new evidence.

The Court of Appeal upheld the summary judgment, finding no error in the motion judge's decision or reasoning.

The Crown appealed the acquittal of the respondent on charges of sexual assault, sexual interference, invitation to sexual touching, and assault involving a child victim between ages 11 and 14.

The respondent had made admissions in a voluntary police statement but denied the allegations at trial.

The trial judge found the respondent's denials not credible and characterized portions of the police statement as a confession to a sexual crime, yet acquitted the respondent.

The appellate court found the trial judge engaged in faulty reasoning, failed to make necessary findings of fact, failed to reconcile conflicting evidence, and provided insufficient reasons for the acquittal.

The court allowed the appeal and ordered a new trial on all counts.

The appellant appealed his conviction for sexual assault, sexual interference, and uttering threats to cause death, as well as seeking leave to appeal his sentence of three years' imprisonment.

The sole ground of appeal from conviction concerned the sequence in which the trial judge disposed of a constitutional challenge to section 119(4) of the Youth Criminal Justice Act and a third party records application under section 278.3 of the Criminal Code.

The appellant argued the trial judge erred by first dismissing the third party records application and then treating the constitutional application as moot.

The Court of Appeal found no reversible error, holding that the appellant failed to demonstrate the extrajudicial measures record was potentially relevant, and therefore the Crown's duty to inquire was not triggered.

The sentence appeal was dismissed as the trial judge properly considered aggravating and mitigating factors.

The appellant was convicted of sexual interference and invitation to sexual touching involving his stepdaughter but acquitted of sexual assault.

On appeal, the court found that the trial judge erred by allowing improper cross-examination regarding the complainant's motive to fabricate and by using the absence of proved motive to enhance the complainant's credibility.

The Crown's extensive questioning required the appellant to speculate about the complainant's motives, thereby improperly shifting the burden of proof.

The court held that such cross-examination violates long-standing jurisprudence and that the absence of evidence of motive cannot be used to bolster credibility.

The appeal was allowed and a new trial was ordered.

The appellant appealed his conviction for second-degree murder in the death of his girlfriend.

The Crown's theory was that the appellant killed her in a dispute about his drug abuse and theft of money to acquire drugs.

The appellant claimed he witnessed a drug dealer kill the victim.

The appeal addressed three grounds: (1) admissibility of a police statement taken in hospital; (2) jury direction regarding prior inconsistent statements as evidence of consciousness of guilt; and (3) rulings on third-party suspect evidence.

The Court of Appeal dismissed all grounds of appeal and upheld the conviction.

The appellant was convicted of dangerous driving causing death following a collision between two tractor trailers on Highway 11 near Val Gagne, Ontario on January 11, 2016.

The appellant was sentenced to three years' incarceration plus a five-year driving prohibition.

On appeal, the appellant challenged the conviction on three grounds: that the trial judge erred in considering a near-miss incident with a Home Hardware truck as part of the dangerous driving offence; that the circumstances did not constitute a marked departure from the standard of care; and that insufficient reasons were provided.

The appellant also sought to appeal the sentence.

The Court of Appeal dismissed both the conviction appeal and the sentence appeal.

The appellant was convicted of manslaughter in the death of a five-and-a-half-month-old child.

He appealed on the sole ground that the trial judge applied uneven scrutiny to the Crown and defence evidence.

The appellant did not dispute that the child died from intentionally applied significant force causing a fatal brain injury, nor that the child's body was covered in extensive bruising.

Only the appellant and the child's mother had the opportunity to cause the fatal injury.

The Court of Appeal dismissed the appeal, finding that the trial judge did not apply uneven scrutiny and was entitled to make the credibility findings and reach the decision she did.

The Crown sought leave to appeal the acquittal of the City of Greater Sudbury on charges under the Occupational Health and Safety Act arising from a fatal construction accident involving heavy equipment backing up without a signaller.

The Crown argued that the courts below erred in their interpretation of the definitions of "constructor" and "employer" under the OHSA.

The motion judge granted leave to appeal on the narrow ground that the interpretation of "employer" in the OHSA engaged a question of law alone of public interest, specifically whether a municipality contracting out infrastructure work could fall within the definition of "employer" based on the degree of control it exercises over the project.

The appellant was convicted of first degree murder following a seven-week jury trial.

This was his second trial on the charge; his prior conviction had been overturned by the Court of Appeal in 2013.

The Crown's case relied heavily on the testimony of Mark Yegin, a witness of questionable credibility who testified that he witnessed the appellant and Shant Esrabian shoot the victim, Hussein El-Hajj Hassan, in a secluded rural area west of Ottawa in August 2004.

The Crown's theory was that the appellant orchestrated the murder in retaliation for the victim's decision to purchase drugs directly from a supplier, thereby cutting the appellant out of the sales chain.

The Court of Appeal allowed the appeal and ordered a new trial, finding multiple legal errors in the trial judge's charge to the jury.

The appellant appealed his conviction for first-degree murder in the fatal shooting of a victim inside a bar.

The critical evidence was security camera footage showing two men in a stairwell moments before the shooting.

The Crown's theory was that the appellant was one of the men and was holding a gun.

The trial judge opined in his jury charge that the dark object appeared to be a gun, despite the Crown's earlier concession that the object was not clearly identifiable as a gun.

The Court of Appeal found that the trial judge's opinion compromised the appellant's right to a fair trial by improperly intervening on a critical factual issue and emboldening the Crown to withdraw its concession.

The court also addressed issues regarding identification evidence and improper Crown speculation about a disabled security monitor.

The appeal was allowed and a new trial was ordered.

The appellant appealed his sentence for impaired driving causing death and criminal negligence causing death.

The sentencing judge imposed a 10-year driving prohibition commencing on the date of sentencing rather than at the end of the period of imprisonment, which constituted an error under R. v. Lacasse.

The Court of Appeal corrected this error by applying the Lacasse formula: subtracting the 5-year term of imprisonment from the 10-year prohibition, leaving a 5-year prohibition to commence upon release.

However, the court exercised discretion to reduce the credit for the presentence driving prohibition period due to the appellant's breach of that condition, resulting in a final 3-year driving prohibition following release.

The victim surcharge was also set aside on consent.

A 15-year-old appellant was convicted of first degree murder under sections 229(c) and 231(4)(a) of the Criminal Code after a police officer was killed during a traffic stop.

The officer attempted to remove the appellant from a stolen vehicle, became trapped as the vehicle accelerated, and was ejected and killed when the vehicle became airborne.

The appellant claimed he did not intentionally accelerate the vehicle and that pedal misapplication occurred.

The Court of Appeal allowed the appeal and ordered a new trial, finding the trial judge erred by failing to instruct the jury to consider the appellant's age and level of maturity when assessing whether he knew his dangerous driving was likely to cause death.

The court also found errors regarding the Crown's closing address and the exclusion of a prior consistent statement.

The applicant sought a stay of production and examination orders pending his application for leave to appeal to the Supreme Court of Canada.

The applicant's father was adjudged bankrupt in Hong Kong, and foreign representatives obtained recognition of the Hong Kong bankruptcy proceeding in Ontario.

The applicant challenged the procedural regularity of the initial recognition order, arguing the bankrupt was not given proper notice.

The Court of Appeal granted a conditional stay, requiring the applicant to produce specified documents and file an affidavit of full production by October 9, 2019, with sealed documents to remain sealed pending the Supreme Court's disposition of the leave application.

The moving party sought an extension of time to perfect her appeal from a decision dismissing her application against the City of Ottawa (Ottawa Public Library), as well as relief from various procedural requirements including electronic service, dispensation from filing hard copies of appeal materials, and dispensation from filing a transcript of evidence.

The application judge had dismissed the underlying application on the basis that it did not disclose a cause of action and that the relief sought was moot.

The motion judge granted the extension of time, permitted electronic service, accepted an agreed-upon transcription of the oral reasons, and granted relief from filing hard copies based on the moving party's financial hardship and the court's lack of proper technological infrastructure.

The appellant was convicted of dangerous driving causing bodily harm and failing to stop at the scene of an accident following a November 2015 incident in which his vehicle struck a pedestrian.

The appellant appealed his convictions and sentence, arguing the trial judge erred in failing to apply the W.(D.) test, in providing insufficient reasons, and in failing to adequately address the mens rea element of dangerous driving.

The Court of Appeal dismissed the conviction appeal, finding the trial judge's reasons were adequate and the convictions were clearly supported by the evidence.

The sentence appeal was also dismissed as the trial judge committed no errors of principle.

An appeal by an NCR (not criminally responsible) accused against the Ontario Review Board's disposition continuing his conditional discharge.

The appellant sought an absolute discharge, arguing the Board erred in finding he continued to pose a significant risk to public safety.

The appellant had been living unsupervised in the community for over a decade with stable mental health and medication compliance.

The Court of Appeal dismissed the appeal, finding the Board's decision was reasonable based on the appellant's lack of insight into his illness, his history of violence when unmedicated, and concerns that the civil mental health system could not adequately manage the risk of treatment non-compliance.

An appeal from an Ontario Review Board disposition that continued a conditional discharge for an NCR accused.

The appellant sought an absolute discharge, arguing the Board erred in finding he continued to pose a significant risk to public safety.

The Court of Appeal allowed the appeal, finding the Board's analysis was unreasonable because it improperly focused on the appellant's lack of insight into his medical condition rather than conducting a holistic assessment of whether he posed a foreseeable and substantial risk of serious harm to the public.

The Board also failed to adequately address conflicting evidence regarding the appellant's insight and did not provide sufficient evidentiary analysis of the relevant factors.

The matter was remitted for a new hearing before a differently constituted panel.

An appeal concerning the constitutionality of security screening measures implemented at police headquarters.

The chief of police instituted a security protocol requiring all persons entering the building to pass through metal detection and bag screening.

A resident who regularly attended public meetings of the police services board refused to submit to screening and was denied entry.

The application judge found the security protocol violated freedom of expression rights and was not prescribed by law.

The appellate court reversed, holding that while the protocol limited freedom of expression, it was prescribed by law through the occupier's common law powers and the statutory duty to ensure safety under the Occupiers' Liability Act, and was justified as a reasonable limit under the Charter.

The appellant appealed his conviction and sentence for various firearms offences.

He was arrested on an outstanding warrant during a search incident to arrest, in which a loaded handgun was found.

The appellant challenged the vehicle stop as violating his Charter rights to be secure from arbitrary detention, arguing the police lacked reasonable grounds for investigative detention.

The trial judge found the police had reasonable grounds to suspect a robbery suspect was in the vehicle based on the observation of red clothing matching the suspect's description.

The Court of Appeal upheld the conviction, finding no Charter violation.

The appellant's sentence of six years less 18 months pre-sentence custody (3 years 9 months remaining) was also upheld as fit.