David M. Paciocco

The accused was convicted of second degree murder in the death of his roommate.

The trial judge refused to leave the partial defence of provocation with the jury, finding no air of reality to the defence because the accused had initiated a confrontation while armed, anticipating that the victim could react violently.

The Court of Appeal allowed the appeal, holding that there is no absolute rule precluding the provocation defence merely because an accused initiates a confrontation while armed.

The court found that the trial judge erred in law by failing to apply the contextual analysis required under the provocation defence framework and that the defence had an air of reality and should have been left with the jury.

The appellant, a farm property owner, sought to terminate a three-year farm lease with the respondents after the first crop season, claiming the respondents failed to provide chemical fertilizer application rates in the form she contended was required by the lease.

The trial judge found the appellant was not entitled to terminate the lease and awarded the respondents damages of $64,051.02 for lost profits from the 2013 and 2014 crop seasons.

The Court of Appeal upheld the trial decision, finding that the lease did not contain a provision permitting early termination for this alleged breach, and that the respondents' handwritten disclosure of application rates was adequate performance.

The appellants, operators of two gravel pits in the Municipality of Shuniah, appealed a decision dismissing their application to declare illegal a series of municipal by-laws regulating vehicle weight on municipal roads.

The appellants argued the by-laws were enacted in bad faith because they were not given actual personal notice of the Municipality's intention to pass them and because the by-laws prevented their aggregate extraction businesses from operating in a commercially viable manner.

The Court of Appeal upheld the application judge's dismissal, finding no requirement for personal notice in the circumstances and no evidence that the by-laws precluded commercial operation of the pits.

The Attorney General of Ontario appealed a Superior Court decision ordering civil forfeiture of a property located at 855 Darby Road, Welland, and associated Hells Angels Motorcycle Club paraphernalia under the Civil Remedies Act, 2001.

The property was owned by members of the HAMC and used as a clubhouse.

The Crown established that mortgage payments were funded in part by dues paid by HAMC members engaged in drug trafficking, and that the property was used as a meeting place where criminal activity was planned.

The Court of Appeal upheld the forfeiture order, finding the property constituted both proceeds and an instrument of unlawful activity, and that the legitimate owner and responsible owner exceptions did not apply.

An appeal by the Ministry of Labour from a provincial offences appeal court decision that reduced sentences imposed on a small furniture warehouse company and two of its directors for Occupational Health and Safety Act violations.

The defendants pleaded guilty to failing to provide fall protection equipment and safety training to an epileptic employee who fell to his death from an elevated order picker.

The sentencing judge imposed a $250,000 fine on the company and 25-day intermittent sentences on the directors.

The appeal judge reduced these to a $50,000 fine and $15,000 fines respectively.

The Court of Appeal dismissed the Crown's appeal, finding that while the appeal judge made errors in principle regarding moral blameworthiness and the rarity of incarceration for regulatory offences, the sentences ultimately imposed were not demonstrably unfit.

The court affirmed that moral blameworthiness is a relevant sentencing consideration for regulatory offences and that incarceration is not per se unavailable for first offenders, but upheld the reduced sentences based on changed circumstances and the principle of restraint.

The appellants appealed a motion judge's decision enforcing a contingency fee agreement provision requiring them to join in an application under section 28.1(8) of the Solicitors Act for court approval of the inclusion of a percentage of legal costs paid to them as part of the solicitor's contingency fee.

The appellants argued that the provision was unenforceable and that they should have been permitted to oppose the application on the grounds that exceptional circumstances did not exist.

The Court of Appeal upheld the motion judge's decision, holding that the provision was enforceable and that the appellants were required to support the application.

The court also found that exceptional circumstances existed justifying the payment.

The appellant appealed his convictions for internet luring, sexual assault, sexual interference, and invitation to sexual touching of a 15-year-old complainant, as well as his global sentence of five and one-half years.

This was the second trial on these charges; the first trial resulted in acquittal on charges involving the same complainant, but a Crown appeal led to a new trial.

The appellant admitted to sexual activity with the complainant but claimed he honestly believed her to be between 16 and 18 years old, despite meeting her on an 18+ chat site where her profile listed her age as 18.

The Court of Appeal dismissed the appeal on all grounds, upholding both the convictions and the sentence.

The appellant appealed his convictions for multiple drug trafficking offences and sought leave to appeal his sentence.

The charges stemmed from two indictments: the first arising from a warrantless police entry into a hotel room, and the second from subsequent search warrants based on information obtained from cell phones seized during the hotel room entry.

The trial judge found the hotel room entry violated s. 8 of the Charter but admitted all evidence under s. 24(2), finding the breach was mitigated by police good faith and the appellant's reduced expectation of privacy.

The appellant was convicted of all charges and sentenced to 10 years imprisonment.

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

The appellant appealed his conviction for sexual assault against his stepdaughter on the ground that the trial judge's reasons were insufficient for meaningful appellate review.

The appellant argued the trial judge failed to adequately explain the rejection of his denials, failed to reconcile inconsistencies in the complainant's and her mother's evidence, and failed to address allegations of fabrication and collusion.

The Court of Appeal dismissed the appeal, finding the trial judge's reasons clearly demonstrated his reasoning and that he was alive to the frailties in the evidence.

The trial judge's credibility findings were open to him on the record.

The appellant appealed his conviction for possession of cocaine for the purpose of trafficking and his sentence of ten years' imprisonment.

The conviction appeal raised two grounds: (1) that the conviction was unreasonable given the inconsistency with a co-accused's acquittal, and (2) that the trial judge erred in dismissing a Charter s. 11(b) application regarding trial delay.

The Court of Appeal rejected both grounds.

The trial judge's findings were reasonable, as the co-accused testified and was believed while the appellant's witness was rejected as untruthful.

The trial delay of 27 months fell within the 30-month presumptive ceiling established in R. v. Jordan.

The sentence of ten years was upheld as fit given the large quantity of cocaine involved and the appellant's prior conviction for the same offence.

The appellant appealed his conviction for possession of cocaine and marijuana for the purpose of trafficking, arguing that the trial judge erred in dismissing his Charter s. 11(b) application for unreasonable delay.

The Court of Appeal, hearing the appeal concurrently with a co-accused's similar appeal, found no unreasonable delay, agreeing with the trial judge's calculation of 27 months net delay.

The appeal from conviction and sentence was dismissed.

The appellant appealed his global sentence of eight years (less credit for pre-sentence custody) imposed for five offences related to human trafficking.

The appellant argued that the sentencing judge erred by: (1) failing to grant qualitative credit under R. v. Duncan for conditions of pre-sentence incarceration including triple bunking and lockdowns; (2) admitting and misusing voluntary videotaped jail-house interviews; and (3) imposing an excessive sentence.

The Court of Appeal dismissed all grounds of appeal, finding no error in the sentencing judge's discretionary decisions and confirming that the sentence was fit given the gravity of the offences and the appellant's degree of responsibility.

The appellant appealed his convictions for repeatedly communicating by way of telecommunication with intent to harass contrary to section 372(4) of the Criminal Code, breach of recognizance, and breach of probation.

The sole issue on appeal was identification: whether the appellant was the person who met the complainant at a bar and subsequently sent her harassing messages.

The Court of Appeal upheld the convictions, finding that the trial judge properly analyzed the identification evidence as recognition evidence based on the complainant's prior acquaintance with the appellant during several hours of close contact on the night in question.

The appellant appealed his convictions for sexual interference, sexual assault, and incest relating to sexual abuse of his daughter.

The appellant claimed the Crown breached its disclosure obligations by failing to produce therapeutic records obtained by the victim in New York.

The Court of Appeal dismissed the conviction appeal, finding the appellant failed to establish that the Crown decided to use the records before disclosure and that any non-disclosure did not impair his right to full answer and defence.

The Court allowed the sentencing appeal on consent, setting aside a conviction for sexual assault relating to the 1997/1998 incident to avoid double jeopardy under the Kienapple principle, and adjusted the sentences accordingly.

The Crown and Ontario Provincial Police appealed a disclosure order requiring production of a drug recognition expert's rolling log.

The rolling log documented all drug evaluations conducted by the DRE from training through certification.

The respondent was charged with drug-impaired operation of a motor vehicle.

The trial judge ordered disclosure of the rolling log, and the motion judge affirmed.

The Court of Appeal dismissed the appeal, holding that the rolling log was "obviously relevant" material subject to first party disclosure under the Stinchcombe regime, and that disclosure was permitted under the exception in section 258.1(2)(a) of the Criminal Code even when anonymized.

Supplementary reasons to an appeal of an order striking the appellant's fresh as amended statement of claim.

The respondents requested the court re-open the appeal and withdraw, alter, or modify its decision, arguing the court misapprehended the timing of the demand for particulars, the history of the bankruptcy proceeding, and conflated oral submissions with pleading content.

The court rejected the second and third arguments and, while acknowledging the respondents' point regarding the timing of the demand for particulars, declined to re-open the appeal as it was not in the interests of justice and the result would have been the same.

The appellant was charged with speeding under the Highway Traffic Act.

He requested disclosure of the testing and operating procedures from the user manual for the Genesis Handheld Directional traffic radar device used to measure his vehicle's speed.

The prosecutor refused disclosure, taking the position that user manuals constitute third-party records requiring a third-party production application.

The justice of the peace ordered disclosure.

The prosecutor obtained a certiorari order quashing the disclosure order.

The Court of Appeal allowed the appeal, finding that the certiorari order was improper and that the disclosure was required as first-party disclosure under the Stinchcombe regime.

Vista owned a shopping mall and leased space to Zellers, which operated a retail store.

Zellers notified Vista in February 2004 of its intention to cease operations in May 2004, although the lease did not terminate until April 2005.

Vista sued, claiming Zellers was obliged under "continuous use" clauses in the lease to operate until the lease ended.

The trial judge found that Zellers was entitled to close when it did, interpreting the continuous use obligation as qualified by the hours of operation clause.

The Court of Appeal reversed, holding that the continuous use obligation in sections 8.01 and 8.05 was not overridden by the hours of operation clause in section 8.01.1, and that Zellers breached its obligation by closing prematurely.

The Crown appealed a certiorari decision quashing a committal for trial on a charge of breach of trust contrary to section 122 of the Criminal Code.

The respondent, an on-duty police officer, refused to assist a member of the public who reported a potential suicide in progress in High Park, Toronto.

The victim subsequently died by suicide.

The application judge found no evidence capable of supporting the necessary mens rea for breach of trust.

The Court of Appeal upheld the decision, holding that while the respondent's conduct was egregious, the Crown failed to establish an improper purpose materially different from the mere failure to perform his duty.

The court distinguished between misfeasance in public office (which requires an improper purpose) and neglect of official duty (which does not), and held that a desire to avoid an unpleasant duty does not constitute the requisite improper purpose.

The appellant, 2138746 Ontario Inc., appealed a trial judgment finding that the respondent, Friday Harbour Village Inc., acquired legal and beneficial ownership of the Marina Strip by adverse possession, did not abandon its titled right of way over the Marina Strip, had a prescriptive easement over the Marina Strip, and did not commit actionable trespass.

The respondent cross-appealed a finding that its right of way over the Western Strip was abandoned.

The Court of Appeal dismissed all appeals, upholding the trial judge's findings on adverse possession and related matters.