David M. Paciocco

The Crown appealed a summary conviction appeal court's decision to stay proceedings against the respondent for "over 80" due to unreasonable delay under s. 11(b) of the Charter.

The delay was caused by the COVID-19 pandemic.

The summary conviction appeal judge (SCAJ) found the Crown had not taken reasonable steps to mitigate delay by accepting consecutive trial dates instead of exploring earlier non-consecutive ones.

The Court of Appeal allowed the Crown's appeal, holding that the SCAJ erred by failing to defer to the trial judge's assessment of local circumstances and the reasonableness of the Crown's actions in managing the pandemic-induced backlog.

The Court clarified that the heightened urgency for scheduling retrials (as per MacIsaac) does not apply to initial trials delayed by exceptional circumstances like COVID-19.

The stay of proceedings was set aside, and the conviction restored.

The appellant, R.M., appealed convictions for attempted abduction of his son and assault of another boy.

The Court of Appeal found that the trial judge erred in instructing the jury on the actus reus of attempted abduction by failing to apply s. 24(2) of the Criminal Code, which designates this as a question of law for the judge.

The court quashed the attempted abduction conviction and substituted it with a conviction for unlawful confinement, lifting the conditional stay on that charge.

The appeal against the assault conviction was dismissed, as were arguments regarding unlawful confinement jury instructions.

The appellant, having initiated parallel spousal support proceedings in the Ontario Court of Justice and divorce/equalization in the Superior Court of Justice, appealed the dismissal of her spousal support claim.

The initial dismissal was due to improper use of resources and jurisdictional issues.

The Superior Court appeal judge remitted the matter back to the Ontario Court of Justice for submissions on jurisdiction.

The Court of Appeal found this disposition failed to promote the primary objective of the Family Law Rules, which is to deal with cases justly and efficiently.

The Court of Appeal allowed the appeal, set aside the lower appeal order, and transferred the spousal support application to the Superior Court of Justice to be heard concurrently with the equalization and divorce claims, imposing a stay on the Ontario Court of Justice application.

Costs were awarded to the appellant.

The appellant landlord appealed a judgment finding it in breach of a commercial lease, granting specific performance, and awarding damages to the respondent tenant.

The Court of Appeal found no error in the trial judge's findings, interpretation of the lease, grant of specific performance, or assessment of damages, noting the appellant failed to present expert evidence to challenge the damages methodology at trial.

The appeal was dismissed.

This appeal concerned a priority and coverage dispute between two automobile insurers regarding third-party liability for the driver/lessee of a leased vehicle involved in an accident.

The appellant, Continental Casualty Company, insurer for the car rental company, challenged the application judge's finding that it was the priority insurer over BelairDirect Insurance Company, which had initially, but erroneously, believed it covered the driver.

The Court of Appeal dismissed Continental's appeal, affirming that BelairDirect was not bound by a settlement or waiver, as its initial actions were based on a mistaken belief of coverage and no binding agreement to abandon priority disputes was formed.

The Law Society of Ontario (LSO) brought a motion under Rule 2.1.02 of the Rules of Civil Procedure to dismiss Paul Alexander Robson's motion to review a prior decision of a motion judge.

The LSO argued that Robson's motion was frivolous, vexatious, or an abuse of process.

The court found that the LSO failed to provide sufficient background documents, such as Robson's original motion materials or proposed notice of motion for leave to appeal, which were necessary to determine if the motion was, on its face, an abuse of process.

Consequently, the LSO's Rule 2.1 request was dismissed without costs, and Robson was ordered to perfect his motion for review within ten days.

The appellant, S.C., appealed his sexual assault conviction, arguing the trial judge failed to properly instruct the jury on the use of the complainant's prior consistent statement (a Facebook message).

The Crown had invited the jury to use this statement as corroboration and the appellant's lack of response as evidence of guilt.

The Court of Appeal found that the trial judge erred by not providing a limiting instruction, which was crucial given the Crown's impermissible use of the evidence and the central role of the complainant's credibility.

The court reiterated that prior consistent statements are presumptively inadmissible for truth or corroboration and require limiting instructions even if admissible under an exception or as after-the-fact conduct.

The appeal was allowed, and a new trial was ordered.

The appellant, Robert Casarsa, appealed his conviction for two counts of sexual assault and sought leave to appeal his sentence.

The conviction appeal raised issues regarding the trial judge's assessment of collusion risk between complainants and the alleged reversal of the onus of proof concerning corroborating evidence.

The sentence appeal sought to introduce fresh evidence of job loss and challenged the denial of a conditional sentence.

The Court of Appeal dismissed both the conviction and sentence appeals, finding no material errors in the trial judge's reasoning on conviction and concluding that the fresh evidence or conditional sentence arguments would not have altered the imposed sentence.

The appellant appealed the dismissal of an application seeking an accounting of her late mother's estate.

The application judge had dismissed the application on two grounds: that a 2019 consent order concluded the matter, and that further litigation would constitute an abuse of process.

The Court of Appeal found no palpable and overriding error in the application judge's decision, upholding the interpretation of the consent order and the finding of abuse of process.

The appeal was dismissed, and costs were awarded to the respondents.

The appellant appealed his convictions for four counts of aggravated assault and five counts of assault with a weapon, alleging unreasonable verdicts, an erroneous similar fact evidence ruling, and ineffective assistance of counsel.

The Court of Appeal dismissed the appeal, finding that the trial judge properly applied the similar fact evidence test and that the verdicts were reasonable given the ample evidence.

The claim of ineffective assistance of counsel was also rejected.

This is an amended costs endorsement following a successful appeal by the respondents.

The Court of Appeal for Ontario awarded costs of the appeal to the respondents Burns Hubley LLP, Paul Gribilas, and J+W Foods Inc., inclusive of disbursements and interest, payable by the appellants.

The appellant, Harris Haidary, appealed his sexual assault conviction.

The Court of Appeal found that the trial judge erred by relying on an impermissible inference that Mr. Haidary had "tailored" his testimony to conform to the Crown's evidence.

This form of reasoning is legally wrong, absent exceptional circumstances not present here.

Furthermore, the trial was rendered unfair because Mr. Haidary was not given notice that such an inference could be drawn against him, depriving him of the opportunity to address it.

The court declined to apply the curative proviso.

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

The appellant, Trevor Caruso, appealed a disposition order from the Ontario Review Board (ORB) which found him not criminally responsible (NCR) and ordered his detention due to schizophrenia and various substance use disorders.

The ORB concluded he posed a significant threat to public safety, citing aggressive behaviour when unwell, a compulsive link between substance use and criminal behaviour, and a history of absconding.

The Court of Appeal affirmed the ORB's finding that the appellant remained a significant threat, largely upholding the ORB's reliance on uncharged violent incidents (carjacking, syringe incident) as evidence of risk, while noting that reliance on mere facts of restraint or reported fear without further inquiry was insufficient.

The Court also upheld the ORB's determination that the detention order was the least onerous and restrictive disposition, given the appellant's flight risk, the critical need for daily oral medication, and the high risk of violence if untreated and at large.

The appeal was dismissed.

Tenzin Norbu appealed a committal order for extradition to the United States on immigration fraud charges and sought judicial review of the Minister of Justice's surrender order.

The alleged scheme involved preparing and selling fraudulent documentation and false narratives to asylum seekers.

The Court of Appeal dismissed both the appeal, finding sufficient identification evidence and evidence for the broader fraudulent scheme, and the application for judicial review, upholding the Minister's decision not to seek assurances regarding potential deportation to China.

The appellant appealed an order striking his statement of defence due to non-compliance with discovery obligations.

The Court of Appeal found that the motion judge was not fully informed by respondent's counsel regarding the appellant's attempt to retain new counsel and seek an adjournment.

The court held that striking a pleading is a last resort and that the motion judge should have considered the merits and granted a less severe remedy.

The appeal was allowed, the order set aside, and the statement of defence restored.

The appellant, Frank Marrone, appealed his conviction for possession of powder cocaine for the purpose of trafficking.

He raised three grounds: unreasonable verdict, conflict of interest of his original defence counsel, and reasonable apprehension of bias by the trial judge.

The Court of Appeal dismissed the first two grounds, finding the verdict was reasonable and no actual impairment of representation due to the alleged conflict.

However, the Court found that the trial judge's repeated, unjustified criticisms and characterizations of defence counsel's conduct, including accusations of "lulling" the Crown and misrepresenting facts, created a reasonable apprehension of bias.

Consequently, the appeal was allowed, and a new trial was ordered for the possession for the purpose of trafficking charge.

The appellant, M.V., appealed an eight-year global sentence for sexual interference, child luring, and child pornography.

The Court of Appeal found that the trial judge erred in principle by relying on aggravating circumstances from the sexual interference offences to determine the sentence for the child luring offences, effectively sentencing the appellant twice for the same conduct.

The court allowed the appeal, set aside the original sentence, and substituted a five-and-a-half-year global sentence, emphasizing the importance of respecting joint sentencing submissions and the principle of totality.

The appellant, K.B., appealed convictions for historical sexual offences against the complainant, EO.

K.B. argued that the trial judge misapprehended evidence and provided insufficient reasons by failing to adequately address contradictions between EO's testimony and that of a defence witness, LB, particularly concerning opportunities for the offences.

The Court of Appeal dismissed the appeal, finding that the trial judge properly considered all evidence, including contradictions, and provided sufficient reasons for her decision, noting the trial judge's finding that LB's testimony was tailored to assist her father.

Michael LeBlanc appealed his second-degree murder conviction, arguing the trial judge erred by not giving alternative jury directions on the partial defence of provocation and a rolled-up manslaughter charge.

The Court of Appeal dismissed the appeal, finding no air of reality for either defence.

For provocation, the court determined the "sudden" element was not met as the appellant was prepared for the threat.

For manslaughter, the brutal nature of the attack indicated an intent to cause death or grievous bodily harm, leaving no realistic scope for a lesser verdict.

The appellant, Thomas Lush, pleaded guilty to several property-related offences and appealed his sentence.

The Court of Appeal found that the sentencing judge erred by imposing a sentence of 2 years and 3 months, which was higher than the 2 years less a day agreed upon by the Crown and defence, without advising the parties or inviting submissions on the proposed increase.

Citing R. v. Nahanee, the court determined this procedural error affected the sentence.

The conviction appeal was dismissed as abandoned, and the sentence appeal was allowed, reducing the global sentence to 2 years less one day.