Frank Miller

The appellant appealed his convictions for sexual assault and sexual touching of a thirteen-year-old cousin.

The primary ground of appeal was that the appellant received ineffective assistance from trial counsel.

The Court of Appeal rejected this argument, noting that trial counsel had conducted an extensive and rigorous cross-examination of the complainant.

The trial judge had provided detailed reasons for disbelieving the appellant and accepting the complainant's evidence, finding consistency on core issues.

The Court found no basis to suggest that a different approach by trial counsel would have led to a different result.

The appeal was dismissed.

The accused was charged with two counts of sexual assault against the same complainant on December 20, 2012, and January 22, 2013.

The trial involved a Charter application regarding the admissibility of the accused's police interview, which was ultimately admitted.

The Crown relied primarily on the complainant's evidence and the accused's police statement.

The defence raised the issue of consent and honest but mistaken belief in consent.

The court found that the accused engaged in non-consensual sexual contact on three separate occasions and rejected his defence of honest but mistaken belief in consent, finding instead that he was reckless as to the existence of consent or willfully blind to the possibility that the complainant might not consent.

The appellant was convicted of assault following a trial before a judge sitting without a jury on charges of sexual assault and sexual interference.

The conduct involved the appellant entering a washroom stall where a three-year-old stranger was standing with his clothing down and pulling the child's sleepers up, making contact with the child's buttocks.

The appellant appealed on the grounds that the trial judge erred in failing to apply an objective test regarding whether the conduct was within the class of ordinarily acceptable conduct in daily life, and in failing to apply the criminal standard to these issues.

The Court of Appeal dismissed the appeal, holding that the statutory definition of assault in section 265(1)(a) of the Criminal Code is exhaustive and does not require proof of socially unacceptable conduct beyond intentional and non-consensual touching.

The applicants, who were charged with conspiracy to traffic in a controlled substance, brought applications under s. 24(2) of the Charter to exclude evidence obtained from wiretap and dialed number recorder (DNR) authorizations.

They argued that the authorizations violated their s. 8 Charter rights because the informations to obtain (ITOs) contained false, misleading, and unconstitutionally obtained information, and that the issuing judge for the DNRs demonstrated a reasonable apprehension of bias.

The court found that while some information in the ITOs had to be excised, including jail visitor logs obtained in breach of s. 8, the remaining evidence was sufficient to support the issuance of the authorizations.

The court also found no reasonable apprehension of bias.

The applications to exclude the evidence were dismissed.

The appellant was convicted of two offences: wilfully killing a dog without lawful excuse, and wilfully causing unnecessary pain and suffering to a dog by strangulation and suffocation with tape and a chain.

The dog was found dead in the appellant's yard, tethered to a tree with a choke chain and electrical tape wrapped around its muzzle.

The trial judge found that the dog died by strangulation on the choke chain and that the tape was a contributing cause.

The trial judge convicted the appellant based on findings that the appellant knew the dog would struggle and suffer, and was reckless as to whether the dog would die.

The Court of Appeal allowed the appeal in part, setting aside the conviction for wilfully killing the dog while upholding the conviction for wilfully causing unnecessary pain and suffering.

The accused, charged with drug trafficking conspiracy, brought applications for a stay of proceedings alleging their s. 11(b) Charter rights to a trial within a reasonable time were infringed.

The total delay was 41.5 months.

Applying the Jordan framework, the court deducted defence delay and delay caused by discrete exceptional circumstances, including a judge's conflict of interest and an unexpectedly lengthy preliminary hearing.

The remaining delay fell below the 30-month presumptive ceiling.

The court also found that the transitional exceptional circumstance applied, as the parties reasonably relied on the prior Morin framework.

The applications for a stay were dismissed.

The appellant appealed his conviction for operating a motor vehicle with an excessive blood alcohol concentration, arguing that the trial judge erred by allowing the Crown an adjournment to call a toxicologist in reply to defence evidence of bolus drinking, thereby improperly splitting its case.

The Superior Court of Justice dismissed the appeal, holding that the trial judge correctly permitted the Crown to call reply evidence.

The court found that the Crown was legitimately surprised by the defence's bolus drinking evidence, which was not anticipated from the initial alcohol influence report.

This evidence was deemed proper reply, not case-splitting, and the appellant suffered no prejudice as he was afforded an opportunity for surrebuttal.

The offender was convicted of possessing 7,694 animated child pornography images.

At sentencing, the offender challenged the constitutionality of the 6-month mandatory minimum sentence under s. 163.1(4) of the Criminal Code, arguing it violated s. 12 of the Charter.

The court dismissed the Charter challenge, finding the mandatory minimum was not grossly disproportionate for the offender or a reasonably foreseeable hypothetical offender.

The court sentenced the offender to 8 months' imprisonment followed by 18 months' probation, emphasizing denunciation and deterrence.

Six accused persons charged with offences under the Controlled Drugs and Substances Act and related Criminal Code firearms charges made dissimilar elections as to mode of trial.

Some accused elected trial by judge and jury, while others elected trial by provincial court judge.

Some accused subsequently re-elected without obtaining written Crown consent as required by statute.

The court addressed whether a justice presiding at a preliminary inquiry has residual jurisdiction to remedy or disregard recorded elections to avoid a multiplicity of proceedings.

The court held that elections and re-elections as recorded must stand, and that a justice has no power to strike down or disregard a recorded election after the fact.

The applicants, John Kushimo and Shannon Pierce, sought to quash a search warrant, arguing it violated section 8 of the Charter.

The warrant was issued based on an Information to Obtain Search Telewarrant (ITO) relying on information from two confidential informants and police surveillance.

The court reviewed the facial validity of the ITO, assessing the compelling nature of the information, the credibility and reliability of the informants, and corroboration by police investigation.

Despite some weaknesses in informant credibility and the compelling nature of some information, the court found that independent police surveillance sufficiently corroborated the tips, allowing the authorizing Justice to infer that drugs were stored at the applicants' residence.

The application to quash the search warrant was dismissed.

The appellant was convicted of impaired driving and sentenced to a one-year driving prohibition and a $1,200 fine.

He sought leave to appeal the dismissal of his summary conviction appeal, arguing the trial judge and summary conviction appeal judge erred in their allocation of delay periods under the Morin analysis for his s. 11(b) Charter application.

The Court of Appeal denied leave to appeal, finding the summary conviction appeal judge was entitled to review and characterize the reasons for delay, and no clear error of law or question of general significance was raised.

The applicant was convicted of having care and control of a vehicle while impaired and over 80 after being found asleep in the driver's seat of his running truck.

His appeal to the Summary Conviction Appeal Court was dismissed.

He sought leave to appeal to the Court of Appeal, arguing the appeal judge erred in her interpretation of the statutory presumption of care and control.

The Court of Appeal dismissed the application, finding the grounds of appeal weak and the legal issue already well-settled by the Supreme Court of Canada.

The accused was charged with possession of child pornography after his roommate discovered illicit images on his computer and turned the computer and several disks over to the police on multiple occasions.

The accused brought a motion to exclude the evidence under s. 24(2) of the Charter, arguing that the police conducted unlawful warrantless seizures, that the roommate acted as a police agent, and that the subsequent search warrants were invalid.

The court dismissed the motion, finding that the warrantless seizures were authorized by common law and statute, the roommate acted independently and not as a state agent, and the search warrants were validly issued with sufficient specificity and reasonable grounds.

The appellant appealed his conviction for operating a motor vehicle while impaired.

He argued the trial judge erred by rejecting the evidence of his stepson solely because of their familial relationship.

The summary conviction appeal judge found that the trial judge properly assessed the stepson's credibility, noting the witness was not forthcoming during cross-examination and had only observed the appellant for a few seconds.

The trial judge's preference for the arresting officer's detailed evidence of the appellant's erratic driving and signs of impairment was reasonable.

The appeal was dismissed.

The appellant appealed convictions for two counts of sexual assault contrary to s. 271 of the Criminal Code.

He argued that the trial judge applied different standards of scrutiny to the evidence of the complainant and the accused, and that the judge misapprehended the evidence.

The appeal court rejected the argument regarding differential scrutiny but found that the trial judge made a material misapprehension of evidence by concluding that the complainant testified she did not consent, when no such testimony was given.

Because lack of consent is an essential element of sexual assault and the trial judge relied on the mistaken belief that direct testimony established that element, the error was both palpable and overriding.

The convictions were set aside and a new trial ordered.

During a criminal trial for trafficking in a controlled substance and possession of property obtained by crime, the Crown sought to qualify a police officer as an expert in street drug slang.

The defence challenged the admissibility of the proposed expert evidence on the basis of lack of independence and inadequate expertise linking slang terms to specific controlled substances.

Applying the Mohan framework and the Supreme Court’s guidance in White Burgess, the court found that although the officer possessed experience with drug slang, his substantial involvement in the investigation created a realistic concern about his ability to act as an independent and impartial expert.

The court concluded that the Crown failed to establish the independence requirement on a balance of probabilities.

The proposed expert evidence was therefore excluded.

The appellants appealed an order dismissing their motion to stay the respondents' application.

The appellants argued the application was premature because the respondents had not exhausted internal remedies under the non-profit corporation's constitution regarding the termination of their membership.

The Divisional Court agreed, emphasizing the policy against judicial intervention in the internal affairs of non-profit corporations before internal appeals are exhausted.

The appeal was allowed and the respondents' application was stayed.

The accused challenged the legality of their arrests and searches conducted incident to arrest following execution of a search warrant for an apartment suspected of drug trafficking.

The police relied primarily on information from two confidential informants, one of whom was not of proven reliability, and failed to disclose material information in the information to obtain (ITO), including criminal histories and financial motivations of the sources.

The court found the tips lacked independent corroboration and did not meet the constitutional threshold of reasonable grounds for arrest or entry into a residence.

As a result, the arrests and searches violated s. 8 of the Charter.

Applying the Grant framework, the court held the Charter breaches were serious and systemic and excluded the seized evidence under s. 24(2).

The appellant appealed his conviction, arguing the trial judge erred in rejecting his evidence.

The Court of Appeal found that the trial judge's third reason for disbelieving the appellant—that he perjured himself at a PSA hearing—was unsupported by the trial record.

Because this error greatly affected the credibility assessment, the appeal was allowed, the convictions were set aside, and a new trial was ordered.

The Crown appealed the respondents' acquittals on drug and firearms charges.

The trial judge had excluded evidence found during a search of the respondents' home, ruling that the Information to Obtain (ITO) lacked objectively reasonable grounds and excluding the evidence under s. 24(2) of the Charter.

The Court of Appeal allowed the appeal, finding that the trial judge erred in weighing the first Grant factor.

Given the trial judge's finding of good faith by the police, the lack of objective grounds alone did not justify excluding the evidence.

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