David M. Trotter

The appellant appealed a conviction for refusing to provide a breath sample under s. 254(2) of the Criminal Code following trial in the Ontario Court of Justice.

The appellant argued that the trial judge reversed the burden of proof and improperly applied an objective standard of fault when concluding the refusal was intentional.

The Superior Court held that the trial judge’s reference to a “reasonable person” related to the officer’s decision to stop further testing, not the mens rea of the offence.

Although the trial judge did not expressly refer to the reasonable doubt standard, the reviewing court concluded that the proper standard was implicitly applied and that the conviction was based on credibility findings rejecting the appellant’s explanation.

The appeal was dismissed.

An NCR accused detained at a psychiatric hospital challenged the constitutionality of s. 672.56 of the Criminal Code, arguing that it violated s. 7 of the Charter by allowing the hospital’s person in charge to determine whether increased restrictions on liberty should trigger mandatory Review Board oversight.

The applicant argued this created a conflict of interest and reasonable apprehension of bias.

The court held that when s. 672.56 is considered within the broader statutory framework of Part XX.1, including discretionary review powers and the availability of judicial review, the scheme provides a fair process.

The notification requirement imposes a statutory duty rather than discretionary review authority.

Accordingly, the provision does not violate principles of fundamental justice.

The Crown brought a pre‑trial application seeking admission of a photograph allegedly depicting a police officer assaulting a protester during the 2010 G20 Summit in Toronto.

The image had been anonymously uploaded to a website and lacked metadata, raising concerns about provenance and possible manipulation.

Competing expert evidence addressed whether the photograph had been altered, but neither expert could confirm its authenticity or trace its origin.

Applying the established criteria for authenticating photographic evidence, the court held the Crown failed to establish fairness and absence of manipulation.

As a result, the photograph was not authenticated and was ruled inadmissible at trial.

The accused was sentenced following conviction for four counts of fraud over $5,000 arising from two real estate transactions involving straw purchasers and fraudulent mortgage documentation.

Financial institutions and an insurer suffered losses exceeding $267,000.

The court emphasized denunciation and general deterrence for large-scale fraud, rejecting a conditional sentence despite the offender’s lack of criminal record and health issues.

Delay between the offences and sentencing and the offender’s medical condition reduced the sentence from a potential penitentiary term.

The court imposed a custodial sentence, restitution under s. 738 of the Criminal Code, and a fine in lieu of forfeiture under s. 462.37.

The applicant sought a bail review under s. 520 of the Criminal Code after a justice of the peace ordered detention on primary, secondary, and tertiary grounds.

The charges involved alleged firearms offences, dangerous driving, and failing to stop for police following an incident in which a shotgun was allegedly discharged and a high‑speed police pursuit ensued.

The applicant proposed a revised release plan involving multiple sureties and electronic monitoring.

The court found serious credibility issues with both the applicant and the proposed surety and concluded the release plan would not adequately mitigate risks of flight or non‑compliance.

The court held that detention remained justified on the primary, secondary, and tertiary grounds and dismissed the bail review application.

The accused applied at a retrial to prevent the Crown from adducing evidence that he placed his hands on the complainant’s neck and made threatening statements during the alleged sexual assault.

He argued that issue estoppel barred the Crown from re‑litigating these facts because he had been acquitted of separate charges of choking and uttering threats at the first jury trial.

The court held that issue estoppel only applies where the prior acquittal necessarily resolved the factual issue in the accused’s favour.

Because the earlier jury verdicts could have been based on multiple possible routes to acquittal, it was impossible to determine the precise factual basis for the acquittals.

The doctrine therefore did not prevent the Crown from leading the evidence as part of the complainant’s narrative at the retrial.

The appellant appealed a conviction for assault following a trial in the Ontario Court of Justice, arguing that the trial judge misapprehended the evidence, applied uneven scrutiny to the testimony of the complainant and the accused, and failed to recognize implausibilities in the complainant’s account.

The Superior Court reviewed the trial judge’s credibility findings and the alleged inconsistency between the complainant’s trial testimony and her prior police statement.

The court held that the discrepancy related only to the timing of events and was reasonably characterized by the trial judge as not material.

The court also found no basis to conclude that the trial judge applied different standards of scrutiny to the evidence or failed to apply the principles in R. v. W.(D.).

The conviction was upheld.

The accused applied for a stay of proceedings under s. 24(1) of the Charter or, alternatively, exclusion of evidence under s. 24(2), alleging breaches of ss. 7 and 9 arising from a lengthy investigative detention.

Police detained the accused for approximately 2.5 hours while investigating a stabbing and a gun call before locating a bag containing two loaded firearms.

The court held that while the initial investigative detention was justified, the duration exceeded permissible limits and therefore infringed s. 9 of the Charter.

However, the court found no causal connection between the detention and the discovery of the firearms and concluded the police conduct did not amount to an abuse of process.

A stay of proceedings was therefore not warranted.

The appellant appealed convictions for assault with a weapon, assault causing bodily harm, and possession of a weapon for a dangerous purpose arising from a road rage incident.

He argued the trial judge misapprehended evidence and erred in rejecting the defence theory that the altercation was a consensual fight.

The court held that the trial judge’s credibility findings and conclusion that the appellant was the aggressor were entitled to deference and were supported by the evidence.

Although the appellate judge identified speculative reasoning regarding whether the complainant’s wound was caused by a sharp-edged instrument, the error was immaterial because the trial judge properly concluded the altercation was non‑consensual.

Applying Kienapple principles, the conviction for assault with a weapon was stayed but the appeal was otherwise dismissed.

The appellant appealed convictions for impaired operation and care or control of a motor vehicle while over the legal limit following a collision.

The central issue at trial was whether the appellant had been the driver or merely a passenger, with the defence asserting that another individual had been driving and raising non-insane automatism based on a head injury.

The appeal court held that the trial judge’s reasons were inadequate because they failed to analyze key potentially exculpatory evidence, including seatbelt markings on the appellant’s shirt consistent with the passenger position, and failed to sufficiently address discrepancies in eyewitness testimony.

The appellate court found that the deficiencies prevented meaningful appellate review of whether the evidence had been properly considered.

The convictions and conditional stay were therefore set aside and a new trial ordered.

Sentencing for possession of a loaded prohibited firearm, possession of cocaine for the purpose of trafficking, carrying a concealed weapon, and possession of proceeds of crime following a judge-alone trial.

The court considered the mandatory minimum sentence under s. 95(1) of the Criminal Code and the concept of the mandatory minimum as an "inflationary floor" in firearm sentencing jurisprudence.

Mitigating factors included the offender’s relatively modest record and the severe immigration consequence of automatic deportation under the Immigration and Refugee Protection Act.

Aggravating factors included the dangerous combination of a loaded handgun and drug trafficking activity.

The court imposed the three‑year mandatory minimum for the firearm offence with a consecutive one‑year sentence for drug trafficking, resulting in a four‑year global sentence, with enhanced pre‑trial custody credit at 1.5:1 due to harsh remand conditions.

The Crown appealed an acquittal for operating a motor vehicle with blood alcohol exceeding 80 mg, arguing the trial judge erred in finding a reasonable doubt about whether the accused’s breath samples were analyzed by an approved instrument.

The doubt arose from a calibration certificate referring to an “Intoxilyzer 8000” while the qualified technician’s certificate referred to an “Intoxilyzer 8000C,” which is the approved Canadian instrument.

The Crown also sought to introduce fresh expert evidence clarifying that the distinction relates only to software and that the calibration certificate is standard for both models.

The court held that the trial judge’s conclusion was open on the evidence and that the alleged misapprehension of evidence was not material.

The proposed fresh evidence was rejected because the Crown failed to meet the due diligence requirement under the Palmer test.

The appeal from acquittal was therefore dismissed.

The Crown applied during a murder trial for a psychiatric assessment and a further fitness hearing after concerns arose about the accused’s ability to participate meaningfully in the proceedings.

Evidence from a psychiatrist indicated that although the accused had a rudimentary understanding of the nature and consequences of the proceedings, severe psychosis and delusional beliefs impaired his ability to communicate with counsel or defend himself.

The court reviewed the statutory test for fitness under s. 2 of the Criminal Code and the governing “limited cognitive capacity” test from appellate jurisprudence.

Considering the accused’s conduct in court and expert evidence, the judge concluded there were reasonable grounds to believe the accused could not meaningfully participate in his defence.

An assessment order was granted and the issue of fitness was directed to be determined again by a jury.

The appellant appealed convictions for operating a motor vehicle with blood alcohol exceeding the legal limit, arguing that the trial judge erred in dismissing a s. 11(b) Charter application alleging unreasonable delay and in finding that breath samples were taken “as soon as practicable” under s. 258(1)(c)(ii) of the Criminal Code.

The Superior Court of Justice reviewed the allocation of delay, including institutional delay, defence-caused adjournments, and delays arising from disclosure issues related to a police officer’s Drug Recognition Expert training.

The court concluded the trial judge did not err in characterizing the delay or in determining that the overall delay fell within the Morin guidelines.

The court also held that the police acted reasonably in obtaining breath samples approximately 1 hour and 37 minutes after arrest and that the trial judge properly inferred that the delay was explained by operational circumstances at the police station.

The appeal was dismissed.

The appellant appealed a conviction for impaired driving and driving over 80, arguing the trial judge erred by refusing to permit a late Charter application under s. 24(1) after an earlier s. 24(2) exclusion application had failed.

The proposed remedy sought to prevent the Crown from relying on the presumption of identity under the Criminal Code following a finding of a minor s. 8 breach.

The court held that trial judges possess broad discretion to control proceedings and enforce compliance with procedural notice rules governing Charter applications.

Given the late timing, non‑compliance with notice requirements, and minimal seriousness of the underlying breach, the trial judge properly exercised discretion in refusing to entertain the application.

The appeal was dismissed.

The appellant appealed a conviction for sexual assault entered after a judge-alone trial.

During the accused’s testimony, the trial judge asked improper questions requiring the accused to explain why the complainant would fabricate the allegation.

The appellate court held that such questioning is improper because it invites one witness to comment on another’s credibility and risks shifting the burden of proof.

The judge’s brief reasons failed to explain why the accused’s evidence was rejected or dispel concern that the improper questioning influenced the verdict.

The conviction was set aside and a new trial ordered.

The Crown appealed an order staying an impaired driving charge for unreasonable delay under s. 11(b) of the Charter.

The trial judge had calculated institutional delay at just over 10 months and found prejudice to the accused arising from employment consequences, travel issues, and personal stress.

On appeal, the court held that the correct method for calculating institutional delay reduced the period to approximately 8½ months, which fell within the Morin guidelines.

The court further found that the alleged prejudice was not causally connected to the delay but rather to the laying of the charge itself, and that the trial judge failed to balance the societal interest in a trial on the merits.

The stay was set aside and a new trial was ordered.

The appellant appealed his conviction for tax evasion under s. 239(1)(d) of the Income Tax Act following a lengthy trial in the Ontario Court of Justice.

He argued that the trial judge erred in assessing the mens rea for tax evasion, rendered inconsistent findings by accepting the direct method of proof while rejecting the net worth method, and improperly reversed the burden of proof by relying on assumptions made by a CRA investigator.

The Superior Court held that the trial judge correctly applied the legal test for wilful tax evasion and that the evidence supported the finding that the appellant knowingly failed to file a tax return to avoid payment of taxes.

The court further found no inconsistency between rejecting one evidentiary method while accepting another and no improper shifting of the burden of proof.

The appeal against conviction was dismissed.

The accused pleaded guilty to three counts of criminal negligence causing death and two counts of impaired driving causing bodily harm arising from a high-speed collision while intoxicated that killed three people and severely injured two others.

The court emphasized denunciation and general deterrence in impaired driving cases causing death, reviewing appellate authorities including R. v. Kummer and related jurisprudence.

Numerous aggravating factors were identified, including extreme speed, high blood alcohol level, multiple fatalities, severe injuries, and refusal to provide a breath sample.

Mitigating factors included youth, a guilty plea, expressions of remorse, and community support.

Applying the governing authorities, the court imposed a penitentiary sentence at the upper end of the sentencing range.

The Crown appealed an acquittal entered after a trial judge refused an adjournment where no qualified Tamil interpreter was available for the accused.

The trial judge declined to proceed with a conditionally accredited interpreter who had recently been found unqualified in another case and refused the Crown’s last-minute adjournment request.

The appellate court held the trial judge was entitled to accept defence counsel’s representation that an interpreter was necessary and that his refusal to adjourn was a discretionary decision owed deference.

The court further held that trial judges are not required to conduct a fresh inquiry into interpreter competence where recent findings of inadequacy exist.

The Crown failed to demonstrate any error in the exercise of discretion.