G.D. Finlayson

The appellant appealed a conviction for possession of cocaine for the purpose of trafficking arising from a street-level police encounter initiated on mere suspicion.

The court held that the police unlawfully detained the appellant, used immigration questioning as a pretext to create grounds for arrest, and then conducted an illegal search incident to that arrest.

The court found breaches of ss. 8, 9 and 10(b) of the Charter and concluded that the seized crack cocaine would not have been obtained absent those violations.

The evidence was excluded under s. 24(2), the conviction was quashed, and an acquittal was entered.

The appellant appealed jury convictions for sexual offences against a child complainant, arguing errors in the admission of similar fact evidence, narrative evidence surrounding the complaint, limitations on cross-examination, and disclosure of a prior prosecution file.

The court held that prior sexual assault evidence involving another child was properly admitted as highly probative, and that evidence of non-sexual abuse was admissible to explain the relationship, fear, delayed disclosure, and context of the assaults.

It also found that the complaint narrative evidence was admissible, that the cross-examination issue had not been preserved, and that no prejudice arose from incomplete disclosure.

The appeal was dismissed and a publication ban was imposed to protect the identity of the complainant and other witnesses.

The appellant appealed a second degree murder conviction arising from the killing of a close friend, arguing the jury charge inadequately addressed the alternative defence theory that mental disorder negated the mens rea for murder and manslaughter, and misstated the burden of proof.

The Court of Appeal held that the trial judge properly instructed the jury under the Hilton approach that evidence of mental disorder remained relevant to intent even if the not criminally responsible defence failed.

It further held that, read as a whole, the charge clearly distinguished the balance of probabilities burden applicable to the mental disorder defence from the Crown’s burden to prove intent beyond a reasonable doubt.

The appeal was dismissed.

The appellant appealed a sentence of six-and-a-half years' imprisonment after pleading guilty to incest.

He argued the sentence exceeded the usual 3-5 year range and that insufficient weight was given to his major depression and subsequent exemplary conduct.

The court held that the sentencing judge did not err because the offence involved a lengthy breach of trust and an aggravating circumstance not present in the comparator authority, namely pregnancies resulting from the abuse.

Leave to appeal sentence was granted, but the sentence appeal was dismissed.

The appellant appealed an 18-month custodial sentence imposed after a guilty plea to misappropriating more than $204,000 from her employer over approximately three years.

The court held that the proposed fresh evidence concerning post-arrest mental and physical health was not fresh evidence because it merely restated what had already been attributed to the doctor at trial.

While emphasizing the significant breach of trust, the extensive and repeated nature of the misconduct, and the absence of restitution, the court concluded the sentencing judge erred by treating lack of remorse as an aggravating factor rather than simply not a mitigating one.

Leave to appeal was granted, the appeal was allowed, and the sentence was reduced to 12 months in custody.

The appellant argued that delayed and incomplete disclosure led to the loss of a 9-1-1 audio tape, compromising the ability to make full answer and defence.

The court held the police conduct was reasonable and the loss of the tape was entirely inadvertent, with its existence only becoming known at trial to all parties simultaneously.

Even assuming a Charter breach, the only remedy sought was a stay, which required proof of irreparable prejudice in one of the clearest of cases.

The court upheld the finding that no irreparable prejudice was shown and dismissed the appeal.

This appeal concerned competing claims by a landlord, an equipment vendor, and a financing company to restaurant equipment left in leased premises after the tenant abandoned them.

The court held that the priority dispute was governed by s. 31(2) of the Commercial Tenancies Act, not by the priority provisions of the Personal Property Security Act.

Because the tenant never had title to the equipment, the landlord could not invoke the statutory exception for title derived from the tenant and could only distrain against whatever equity the tenant may have acquired under the lease arrangement.

The appeal was dismissed with costs.

This was a costs endorsement following the dismissal of an appeal in a municipal election Charter challenge.

The successful respondent did not seek costs either in the Court of Appeal or on the motion for leave to appeal.

Applying the ordinary rule that costs follow the event, the court nevertheless made no order as to costs because the successful respondent did not ask for them.

The costs order in the Divisional Court was left undisturbed.

The appellant challenged historic convictions for gross indecency, indecent assault, and common assault arising from repeated sexual abuse of his younger sisters over a lengthy period.

The court held the trial judge's characterization of the appellant as violent and vindictive was reasonably grounded in the evidence and was admissible as narrative context explaining delayed disclosure, not as propensity proof.

The court further held that the convictions rested on a proper credibility assessment, including rejection of the fabrication theory, and that improper Crown cross-examination caused only minimal prejudice.

Leave to appeal sentence was granted, but the 44-month concurrent custodial sentence was upheld as fit given the prolonged abuse, force, threats, and enduring harm.

Appeal from an application judgment reducing the voting rights attached to 18 commercial condominium basement units from 18 votes to three.

The court held that condominiums are creatures of statute and that the voting scheme mandated by the Condominium Act could not be altered by unilateral undertakings, by-laws inconsistent with the declaration, settlement arrangements, or equitable doctrines absent compliance with the statutory amendment process.

The court further held that proprietary estoppel was unavailable because there was no inducement, reliance, or detriment as between the relevant parties, and any prior representation was not made to the respondent owner nor binding on successors in title.

The appeal was allowed, the judgment below was set aside, and the application was dismissed with costs to the appellant here and below.

The appellant sought leave to appeal and appealed a six-year penitentiary sentence imposed after a conviction for aggravated assault.

He argued that the sentencing outcome was unfair because the Crown accepted he did not know his accomplice had a knife or intended to use it.

The court held that this distinction was irrelevant because the appellant was a principal in the planning and execution of a brutal assault and robbery, having brought and used a garrote and continued the attack after seeing the knife.

Although youth, guilty plea, cooperation with police, and a non-violent prior record were mitigating factors, the sentence was warranted by the gravity of the offence.

Leave to appeal sentence was granted, but the appeal was dismissed.

The appellant challenged her jury conviction for aggravated assault arising from injuries to an infant diagnosed as shaken baby syndrome, arguing several procedural errors in the conduct of the trial.

The court held that the impugned rulings concerning transcript requests, witness exclusion, disclosure of an expert report, jury note-taking, and cross-examination were all within the trial judge's discretion and disclosed no reversible error.

On sentence, both sides sought leave to appeal from a conditional sentence of two years less a day followed by three years' probation.

The court held that the sentence was within range on the exceptional facts and that the trial judge did not err in principle by imposing a conditional sentence or by setting the probationary terms.

The appellant sought leave to appeal and, if granted, appealed from the dismissal of his summary conviction appeal respecting convictions for two assaults and uttering death threats.

The court held that complaints about the summary conviction appeal judge's refusal to revisit credibility findings on an overextended collateral property issue did not raise an issue of law.

However, the sentences imposed below were conceded to be blended and therefore illegal.

Leave to appeal was granted, the conviction appeal was dismissed, and the sentence appeal was allowed with concurrent 90-day custodial sentences and the probation order left in place.

The applicant sought judicial review of a ministerial surrender order made under the Extradition Act following committal for extradition to the United States on a conspiracy count involving mail and wire fraud.

The court rejected the argument that the Minister was required to conduct an independent investigation into whether prosecution in Canada would be equally effective, holding that she could rely on the domestic prosecutorial decision absent improper motive.

The court also rejected the argument that surrender would violate s. 7 of the Charter, relying on assurances received by the Minister and the procedural protections inherent in the American judicial system.

Disclosure complaints were likewise dismissed, and the application was dismissed.

The appellants sought to challenge an order directing that an assessment proceed without consideration of negligence and failure to follow instructions.

The Court of Appeal held that, because leave to appeal from the earlier order had been denied, it was not open to revisit the merits of that order on this appeal.

The assessment officer was therefore bound to proceed on the basis set by the prior order.

The appeal was dismissed with costs, although the court expressly stated it was not endorsing the proposition that no solicitor-client relationship existed.

The appellant appealed a trial judgment awarding unpaid real estate commissions, prejudgment interest, and costs to the respondent.

It argued that it was entitled to contractual or equitable set-off against losses arising from a failed asset purchase and commercial relocation arrangement, or alternatively that the respondent was estopped from asserting her commission claim.

The court held that no personal obligation by the respondent to indemnify the appellant had been established, which was fatal to any claim of set-off.

The court further held that the elements of estoppel were not made out because the appellant did not act on any operative representation by the respondent and suffered no relevant detriment.

The appeal was dismissed with costs.

The appellant challenged arson-related convictions arising from a house fire prosecuted entirely on circumstantial evidence, arguing among other things that the trial judge reversed the burden of proof by using the Hodge's case formulation to test the defence explanation for the fire.

The court held that the trial judge improperly required the accused to provide a reasonable explanation based on proven facts, rather than asking whether the Crown had proved guilt beyond a reasonable doubt.

That error required the convictions to be set aside and a new trial ordered.

Fresh evidence relating to the trial judge's earlier involvement in family proceedings was admitted but found insufficient to establish a reasonable apprehension of bias.

The appellants challenged a trial judgment rejecting a claimed prescriptive easement over a commercially developed parcel of land.

The Court of Appeal held the use of the alleged easement was permissive, not adverse, because the relevant knowledge and consent resided in the same individual personally and as the directing mind of the corporate owner during the relevant period.

The court further held no easement could arise by permission because any such permission ended when ownership of one of the properties changed in 1983.

The appeal was dismissed with costs.

The appellant challenged a judgment in an insurance benefits dispute concerning whether a proposed rehabilitation expenditure was a reasonable expense.

The court accepted that a significant-benefit threshold would be erroneous, but interpreted the trial reasons as finding only that the evidence showed no more than an insignificant benefit in the circumstances.

It held that the trial judge was entitled on the record to conclude the proposed expenditure was not a reasonable expense.

Leave to appeal costs was granted, and the trial costs order was varied so that there would be no order as to costs of the trial; the appeal was otherwise dismissed without costs.

The appellant challenged the dismissal of a medical negligence action arising from a surgical procedure and alleged lack of informed consent.

The Court of Appeal held that the trial judge was entitled to accept the defence expert evidence that the surgery was not negligently performed, particularly where there was no effective cross-examination on the factual assumptions and no contrary expert evidence.

The court further held that there was evidence supporting disclosure of the material risk of permanent change in sensation, and no evidence that other asserted risks required disclosure.

Applying the modified objective test, the court upheld the finding that the appellant would have proceeded with the surgery in any event.