Eleanore A. Cronk

The moving parties brought a motion to quash appeals from a trial judgment in an estate matter.

The Court of Appeal dismissed the grounds alleging contempt and out-of-time filing, noting the time to appeal ran from the date the formal judgment was entered.

The Court directed that the estate appellant must retain a solicitor pursuant to Rule 15.01(1), and ordered that a self-represented appellant's appeal regarding costs would be quashed if he failed to obtain the required leave to appeal.

The appellant bankrupt company appealed the dismissal of its motion to annul its bankruptcy.

The appellant argued that the assignment in bankruptcy was invalid because the statement of affairs was not properly sworn before a commissioner.

The Court of Appeal dismissed the appeal, finding that while the failure to properly swear the affidavit was improper, the company was clearly insolvent and annulling the bankruptcy would cause an injustice to the creditors.

The appellant was convicted of sexual assault.

At trial, the Crown introduced evidence of the appellant's propensity for violence while intoxicated.

The trial judge did not provide a specific limiting instruction to the jury regarding this evidence.

Additionally, the trial judge permitted both counsel to comment on the evidence to the jury after the jury charge was completed.

The Court of Appeal held that the propensity evidence was inadmissible and highly prejudicial, and the failure to provide a limiting instruction was a reversible error.

The post-charge comments by counsel were also found to be improper.

The conviction was set aside and a new trial ordered.

The Crown appealed a conditional sentence imposed after a guilty plea to incest arising from repeated sexual abuse of a minor placed in the respondent's home as a foster child and half-sister.

The Court of Appeal held the sentencing judge erred in treating the offender as outside a loco parentis relationship and in making comments suggesting the complainant's maturity was relevant.

However, applying s. 718.2(e) of the Criminal Code and the Gladue and Wells principles, the court found the offender's extreme Indigenous background circumstances, severe abuse history, voluntary disclosure, guilty plea, and genuine rehabilitative efforts justified a reformatory sentence to be served in the community.

The appeal was allowed in part by increasing the sentence to two years less one day, lengthening probation to two years, and imposing strict house arrest and other more punitive conditions.

The young person appealed a conviction for dangerous driving and the resulting disposition of 30 days open custody, 18 months probation, and a one-year driving prohibition.

The young person, who was self-represented at trial with assistance from a parent, argued that the representation was inadequate, full answer and defence was prevented, and the verdict was unreasonable.

The Court of Appeal dismissed the conviction appeal, finding the trial judge properly assessed the overwhelming evidence of dangerous driving, which included evading a police roadblock and running multiple red lights.

The disposition appeal was allowed in part, reducing the community service requirement from 75 to 25 hours due to the practical hardship it caused the young person's family, with the Crown's consent.

Following the dismissal of the appeal, the court received submissions to determine the quantum of costs payable to the self-represented respondent.

The respondent claimed $7,351, while the appellant argued for $1,100.

The Court of Appeal fixed costs at $3,500 on a partial indemnity basis, noting that the award is limited to costs in the Court of Appeal and that certain claimed disbursements, such as medications, are not recoverable under the Tariff.

The appellant appealed a motions judge's decision finding a concluded settlement between the parties for $12,000.

The Court of Appeal upheld the finding of a settlement, noting that correspondence confirmed the agreement and the appellant's former counsel conceded the amount.

However, the Court varied the order to direct that the $12,000 settlement amount, plus accrued interest, be paid to the appellant out of money held in court.

The respondent's cross-appeal for costs of the motion was dismissed, and no costs were awarded for the appeal.

The appellant, a young person, fled from police and knocked on the door of an acquaintance's residence.

A child let him in, and the appellant asked him to pretend he lived there before going upstairs, where he was subsequently arrested.

He was convicted of forcible entry under s. 72(1) of the Criminal Code.

On appeal, the Court of Appeal held that the offence of forcible entry requires a taking of possession that interferes with the peaceable possession of the occupant, and that the manner of entry itself must be likely to cause a breach of the peace.

As the appellant entered peacefully with permission and did not interfere with the occupants' possession, the elements of the offence were not met.

The appeal was allowed and an acquittal entered.

The Crown appealed a one-year sentence imposed on a 19-year-old first offender who pleaded guilty to importing almost four kilograms of cocaine.

The trial judge had departed from the established sentencing range of six to eight years, citing legislative changes and the offender's belief that he was importing marijuana.

The Court of Appeal held that the trial judge erred in disregarding the established range, and that a three-year sentence would have been appropriate given the mitigating factors.

However, because the offender had already served the custodial portion of his sentence and was employed, the court declined to reincarcerate him and dismissed the appeal.

The appellant sued her gynaecologist for negligence after she fainted and injured her ankle while left unattended following a pelvic examination.

A jury found the physician was not negligent and the action was dismissed.

The appellant appealed, arguing that defence counsel's opening and closing addresses were inflammatory and that the trial judge's charge to the jury was inadequate.

The Court of Appeal dismissed the appeal, finding that the trial judge's correcting instructions adequately remedied any prejudice from counsel's inappropriate comments, and that the jury charge, while not perfect, sufficiently identified the issues and related them to the evidence and legal principles.

The appellant was convicted of assault following an altercation with the complainant, during which the appellant claimed she acted in self-defence.

On appeal, the appellant argued the trial judge erred by restricting cross-examination of the complainant regarding pending assault charges, misapprehending a witness's evidence, and improperly applying the doctrine of reasonable doubt to credibility findings.

The Court of Appeal agreed, finding that the restricted cross-examination prejudiced the appellant's self-defence claim and that the trial judge improperly resolved credibility before considering reasonable doubt.

The appeal was allowed and a new trial ordered.

The appellant appealed his convictions and sentences for possession of stolen goods, possession of burglary tools, and breaking and entering.

He argued the trial judge erred in finding reasonable grounds for his arrest and in applying the doctrine of recent possession of stolen property.

The Court of Appeal dismissed the appeal, finding ample grounds for the arrest based on police surveillance and the appellant's actions.

The Court also upheld the trial judge's application of the recent possession doctrine, noting that the appellant's explanation for possessing the stolen goods was unreasonable and thus permitted the inference of guilt.

The appellant, a Nigerian citizen, was committed for extradition to the United States for breach of supervised release conditions.

He appealed the committal order and sought judicial review of the Minister of Justice's surrender order.

The Court of Appeal dismissed the committal appeal but granted the application for judicial review.

The Court found that the Minister failed to consult with the Minister responsible for immigration regarding the appellant's refugee claim, failed to consider the lengthy time spent in Canadian custody, and failed to address the appellant's claim that he left the United States at the direction of immigration authorities.

The matter was remitted to the Minister for redetermination.

The appellant appealed his sentence for impaired driving, arguing the trial judge erred in characterizing his driving as a breach of trust, finding he was a long-term alcohol abuser, and imposing an unfit sentence.

The Court of Appeal dismissed the appeal, finding no error in principle regarding the breach of trust characterization, as the appellant assumed responsibility for driving the victim home.

The court also found evidence supported the alcohol abuse finding and concluded the sentence, while at the high end of the range, was not unfit given the aggravating circumstances.

The appellant, serving a six-year sentence for offences including exploding a home-made bomb, appealed the dismissal of his habeas corpus application challenging his denial of accelerated parole review (APR).

He argued the warrant of committal was ambiguous and the Correctional Service of Canada lacked sufficient information to deny APR.

The Court of Appeal dismissed the appeal, finding that the warrant was valid under s. 782 of the Criminal Code and that the sentencing judge's endorsement on the indictment confirmed the appellant was convicted under s. 81(1)(a) of the Criminal Code.

This conviction legally excluded him from APR eligibility under s. 125(1)(b) of the Corrections and Conditional Release Act.

The appellant appealed his convictions for attempted murder and aggravated assault, as well as his sentence.

He argued the trial judge misdirected the jury on the mens rea for attempted murder, failed to adequately answer a jury question on intent, and erred in not instructing the jury that his rage could raise a reasonable doubt about intent.

The Court of Appeal dismissed the conviction appeal, finding the jury instructions were correct and adequate, noting that the mens rea for attempted murder is an intention to kill.

The sentence appeal was also dismissed, with the court noting the severe nature of the domestic abuse.

The appellant appealed his custodial sentence.

The Court of Appeal admitted fresh evidence in the form of two psychiatric reports indicating that the appellant's risk of re-offending was much lower than the trial judge had concluded, and that his post-conviction counselling was effective.

Based on this fresh evidence, the Court varied the sentence to a 10-month conditional sentence, while upholding the weapons prohibition order.

The appellant appealed his conviction and the finding that he was a dangerous offender.

On the conviction appeal, he argued the trial judge erred in instructing the jury on evidence of his assault on police officers at the time of arrest and failed to properly summarize the defence's position.

The Court of Appeal dismissed the conviction appeal, finding no misdirection and noting the overwhelming evidence of guilt.

On the sentence appeal, the appellant argued the trial judge gave undue weight to an expert's opinion that relied on other experts not called as witnesses.

The Court dismissed the sentence appeal, finding the expert was entitled to rely on the material and the dangerous offender finding was fully supported by the evidence.

In an addendum to judgment regarding costs of an appeal, the respondents sought costs totaling $132,145.72.

The appellants opposed, seeking a stay of costs for one insolvent respondent, arguing for the application of the pre-2002 party and party costs regime, and challenging the hourly rates of junior counsel.

The Court of Appeal dismissed the stay request, held that the new costs grid under O. Reg. 284/01 applies retrospectively to services rendered before January 1, 2002, and reduced the hourly rates for certain junior counsel.

Total costs of $122,998.02 were awarded to the respondents on a partial indemnity basis.

The appellant investor appealed the dismissal of his action against his investment advisor and brokerage firm for damages arising from advice regarding the sale and acquisition of shares, including Bre-X shares.

The appellant argued the trial judge erred in not finding a fiduciary relationship and in failing to find the advisor's conduct wrongful.

The Court of Appeal dismissed the appeal, finding the trial judge correctly applied the test for a fiduciary relationship and that the findings regarding the advisor's conduct were supported by the evidence with no palpable and overriding error.