Dennis R. O'Connor

The appellant appealed a first degree murder conviction arising from the killing of a child, where the central trial issue was his mental state and potential exemption from criminal responsibility.

The Court of Appeal held that statements made by the appellant to a psychiatrist during a court-ordered psychiatric assessment for fitness and criminal responsibility were protected under s. 672.21 of the Criminal Code and were inadmissible to prove actus reus or mens rea.

The court found the appellant's consent was limited to assessment for fitness and criminal responsibility and did not authorize substantive use of the statements to prove planning and deliberation.

Because the psychiatrist's evidence was central to the Crown's case on first degree murder, the curative proviso could not be applied.

The conviction was set aside and a new trial ordered.

The appellants appealed their convictions for second degree murder arising from a circumstantial case that they killed the deceased in order to steal and export his newly purchased vehicle.

The Court of Appeal rejected challenges to jury selection, exclusion of alleged third-party suspect evidence, and numerous aspects of the jury charge, including instructions on separate liability, recent possession, reasonable doubt, circumstantial evidence, manslaughter, and post-offence conduct.

The court also held that the co-accused's cut-throat closing address did not warrant severance or a mistrial, and that any improper advocacy was adequately corrected by the trial judge.

The convictions were upheld and the Crown's contingent cross-appeal was not addressed.

The appellant municipality appealed a judgment finding it liable for negligent misrepresentation arising from assurances given at council meetings that a road would be upgraded in time to permit a subdivision development.

The court held that the trial judge was entitled to accept the respondent's evidence over the municipal minutes, and that the respondent reasonably relied on the assurances in proceeding with the development agreement and related expenditures.

The representations were treated as implying an existing municipal commitment and ability to complete the road work, not merely non-actionable future promises.

In the circumstances, where the Reeve spoke before full council without correction, the municipality could be liable at the operational level in negligence.

The appeal was dismissed with costs.

A receiver appointed at the instance of a secured creditor sought recovery of deferred management fees withdrawn before receivership and operating funds deposited into a new bank account shortly before the appointment.

The Court of Appeal held that both claims were subject to equitable setoff because the respondent's cross-obligations arose from the same management relationship and were closely connected to the receiver's claims.

The court rejected arguments that the new account involved conversion or that the management agreement created a trust excluding the respondent's claims.

The appeal was dismissed and costs were awarded to the respondent.

The Crown appealed sentence for a very serious violent offence committed by a young first offender.

The Court of Appeal held that the six-month custodial sentence followed by probation was clearly inadequate and that appellate intervention was warranted.

Considering the respondent's completed incarceration, fragile psychological state, remorse, first-offender status, and the absence of any demonstrated ongoing danger to the community, the court concluded that a penitentiary term was not fit.

The sentence was varied to an 18-month conditional sentence to be served in the community, with probation to follow.

The appellant sought certiorari during an ongoing summary conviction trial after the trial judge refused to quash an information on the basis that there were allegedly no reasonable and probable grounds for one of the charges when the information was sworn.

The Court of Appeal held that interlocutory review in criminal proceedings is not routinely available and that certiorari cannot be used as a substitute for a prohibited interlocutory appeal absent compelling interests of justice.

Applying the governing framework, the court found no reason for immediate superior court intervention and held that the trial should have proceeded to completion within the ordinary criminal process.

The appeal was dismissed and the matter remitted to the trial judge.

The Crown appealed, with leave, from a summary conviction appeal decision that had reduced fines imposed on a corporate respondent convicted of two surviving workplace safety offences arising from an incident that caused an employee's death.

The Court of Appeal held that the trial judge's original sentence disclosed no error in principle and appropriately emphasized deterrence.

It found that the summary conviction appeal judge erred by diluting the importance of deterrence when treating it as only one of many sentencing factors.

The appeal was allowed and the original fines were restored.

The appellant appealed his attempted murder conviction arising from a gang invasion of a karaoke bar, arguing that the trial judge misdirected himself on the principles governing eyewitness identification evidence.

The court held that the identification case was very strong, based on circumstantial evidence and the eyewitness identification of two persons, and found no error in the trial judge's treatment of that evidence.

The appellant also sought leave to appeal sentence, submitting that a three-year sentence for extortion should have been concurrent rather than consecutive.

The court held that, regardless of that issue, the total sentence of 18 years, taking into account two years of pre-trial custody, was entirely appropriate.

The appellant sought leave to appeal from a summary conviction appeal judgment that set aside a stay of proceedings based on alleged unreasonable delay.

The court held that the delay between December 15 and May 5 was attributable to the defence, and that the trial judge improperly placed significant weight on systemic scheduling concerns unrelated to the actual causes of delay in the case.

Agreeing with the summary conviction appeal judge, the court concluded that a fair balancing of the relevant s. 11(b) factors did not justify a stay.

The application for leave to appeal was dismissed.

The appellant appealed his conviction following a guilty plea and sought to withdraw the plea, arguing it should not stand.

The court accepted trial counsel's affidavit that the plea was fully informed and voluntary and made in the face of an overwhelming Crown case.

The appellant also sought leave to appeal sentence and challenged the refusal of a conditional sentence for offences involving a large quantity of counterfeit travellers cheques, forged identification, embossing plates, a criminal record, and commission of the offences while on probation.

Leave to appeal sentence was granted, but both the conviction appeal and sentence appeal were dismissed.

The appellant challenged both the trial judgment and the costs award arising from a dispute concerning consideration for shares and obligations under minutes of settlement.

The Court of Appeal rejected the attack on the trial judge’s factual findings, holding there was evidence to support the impugned findings.

However, it held the trial judge erred in principle in awarding solicitor-client costs because the pleadings, while strongly worded, did not amount to fraud or dishonest conduct warranting elevated costs and were not pursued unreasonably.

Leave to appeal costs was granted, the appeal on costs was allowed, and party-party costs were substituted, with the respondent recovering 90 percent of the costs of the appeal.

The appellant sought judicial review of the Human Rights Commission's refusal to refer her discrimination complaint to a board of inquiry and sought broad pre-hearing examination and production under r. 39.03.

The Court of Appeal split on whether further disclosure could be compelled from the Commission, with the majority holding that deliberative secrecy and the absence of general discovery on judicial review do not bar a focused examination where there is an objectively reasonable concern that undisclosed facts, arguments, considerations, or strategic factors may have informed the decision.

The court held that the appellant was entitled to examine a senior Commission official on what additional material was before the commissioners, whether strategic concerns influenced the decision, and whether unrevealed reasons existed.

The appeal from the order striking portions of the appellant's affidavit was dismissed, but the appeal concerning the scope of examination was allowed and costs were awarded to the appellant.

The appellant appealed convictions and sentence arising from trafficking in large amounts of cocaine.

He argued primarily that the judge hearing the Garofoli application unfairly limited cross-examination of the police officer who swore the affidavits supporting wiretap authorizations.

The court held that leave to cross-examine on such affidavits is not automatic, informer privilege remained protected absent the innocence-at-stake exception, and the application judge properly exercised his discretion in restricting questions that risked revealing protected information.

The court also rejected a sentence disparity argument, finding the appellant played a more significant role than others in the trafficking operation.

Both conviction and sentence appeals were dismissed.

The appellant challenged his conviction on the basis that a saliva sample was obtained without informed consent and without permitting access to counsel after request.

The court held that the trial judge erred by placing the onus on the appellant to prove lack of consent under s. 8 of the Charter and failed to give reasons on the s. 10(b) issue.

Applying the framework for conscriptive evidence and discoverability under s. 24(2), the court was not satisfied that the saliva sample would be admissible.

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

The appellant challenged his convictions on the basis that the trial judge improperly dismissed a Charter application seeking exclusion of a saliva sample.

The Court of Appeal held that the trial judge erred by placing the burden on the appellant to prove lack of consent under s. 8, failed to make adequate credibility findings, and gave no reasons on the alleged s. 10(b) breach.

Applying the conscriptive evidence analysis from Stillman, the court concluded the trial judge's s. 24(2) analysis was of little assistance and rejected the Crown's discoverability argument for lack of evidentiary foundation.

The convictions were set aside and a new trial was ordered.

The appellant challenged a judgment finding no evidentiary basis to treat a third party as an agent authorized to make representations and warranties on behalf of one of the respondents.

The Court of Appeal held there was no evidence of any statement conferring authority and that the conduct relied upon did not raise a genuine issue of agency.

Agreeing with the motions judge, the court dismissed the appeal with costs.

The appellants challenged an order declining jurisdiction to hear their application in an immigration matter.

The Court of Appeal held that the judge properly exercised his discretion in declining jurisdiction and found no basis to interfere.

The court noted submissions concerning the proposed removal of the litigation guardian, who was also the children's caregiver, and observed that an application under s. 114(2) of the Immigration Act remained available.

The appeal was dismissed.

The appellant appealed a summary conviction appeal decision that set aside his acquittal for impaired care and control and entered a conviction on the first charge while staying the over-80 charge.

The Court of Appeal held there was ample evidence that the appellant had care and control of the vehicle, even though the keys were on the floor and he had no immediate intention to drive.

Sitting in the driver's seat with the keys readily accessible created a real risk that he could change his mind or misjudge his impairment and operate the vehicle.

The appeal was dismissed.

The appellant appealed both conviction for attempted murder and an eight-year penitentiary sentence arising from a stabbing of his wife.

The Court of Appeal rejected arguments that the trial judge ignored a reasonable doubt, reversed the burden of proof, improperly treated psychiatric evidence concerning specific intent, or wrongly relied on post-offence statements.

On sentence, the court held that protection of the spouse was the dominant consideration and that the appellant’s mental illness did not necessarily reduce the otherwise fit sentence where the illness created future risk.

Fresh evidence concerning day parole and psychiatric conditions of release did not justify appellate intervention.

The Crown appealed an order directing that a young person charged with first degree murder be tried in youth court.

Applying the transfer framework under s. 16 of the Young Offenders Act, the court held that the inquiry required an assessment of whether public protection and rehabilitation could likely be reconciled within the youth court disposition regime.

Despite the gravity of the alleged planned and deliberate murder and the respondent's age, the evidence supported findings that the respondent did not suffer from a conduct disorder, had shown positive institutional adjustment, and had realistic rehabilitative prospects within the available 10-year secure disposition.

The appeal was dismissed and the youth court order was confirmed.