Gladys I. Pardu

This costs endorsement addresses the entitlement of the Chippewas of Nawash Unceded First Nation and Saugeen First Nation (SON) to costs from Ontario following a partially successful appeal.

SON had sued Canada and Ontario for Aboriginal title to submerged lands and for breaches of fiduciary duty.

The Court of Appeal allowed SON’s title claim appeal to the extent of remitting the matter back to the trial judge for a determination on a more limited portion of the claim area, while dismissing their treaty claim appeal.

SON had settled costs with Canada and was not seeking costs for the treaty claim.

The court found that SON was the overall successful party on the title claim appeal against Ontario, as they obtained the relief sought (remittal), and Ontario's position was to dismiss the claim entirely.

The quantum of costs sought by SON was deemed reasonable given the complexity and public importance of the appeal.

The moving parties sought reconsideration of a prior decision by the Court of Appeal dismissing their appeal, presenting new evidence.

The court dismissed the motion for reconsideration, affirming that such requests are granted only in very exceptional cases and that the new evidence did not undermine the basis for the original appeal dismissal.

Costs were awarded to the responding party.

The moving parties, a former lawyer and his professional corporation, sought an urgent order to pay the net proceeds of a condominium sale into court, pending their motion to extend time for an appeal from an underlying judgment.

The judgment had declared a trust invalid and ordered the discharge of a mortgage and return of assets to an estate, which the moving parties had failed to comply with, leading to a contempt finding.

The moving parties argued the payment was necessary to protect a beneficiary's interests and alleged estate mismanagement.

The Court of Appeal dismissed the motion, finding the allegations of mismanagement incredible and the payment into court unnecessary.

The court noted the moving parties' history of obstruction, non-compliance with court orders, and unlikelihood of the appeal proceeding due to unpaid costs.

The appellant, Pheonix Haist, appealed her convictions for gun-related offences and refusal to provide a breath sample.

She argued that her s. 10(b) Charter right to counsel was violated due to delays in being informed of the right and in facilitating access to counsel.

She also contended that her convictions for firearm possession were unreasonable, alleging misapprehension of evidence by the trial judge.

The Court of Appeal upheld the trial judge's findings, concluding that the delays in advising and facilitating counsel were justified by the immediacy requirements of breath demands and officer safety concerns.

The court also found no error in the trial judge's assessment of circumstantial evidence regarding firearm possession, affirming that the inference of possession was reasonable.

The appeal was dismissed.

The appellant, William Cummins, appealed his conviction for first-degree murder and unlawful confinement.

The appeal raised two main issues: the trial judge's mid-trial ruling allowing the Crown to use the appellant's prior testimony from a mistrial, and the application of constructive murder provisions under s. 231(5) of the Criminal Code.

The Court of Appeal upheld the trial judge's discretionary decision regarding the use of prior testimony, finding no error.

However, the court found that the trial judge erred in instructing the jury on the "same transaction" test for constructive murder by stating that the unlawful confinement did not need a causal connection to the murder, which contradicted established jurisprudence.

Consequently, the first-degree murder conviction was reduced to second-degree murder, and the matter was remitted for parole eligibility determination.

The Crown appealed stays of proceedings granted to three respondents on the basis of their s. 11(b) Charter right to trial within a reasonable time.

The trial judge had found breaches of the Jordan ceilings, but the Court of Appeal found that she did not adequately account for the systemic disruptions to court operations caused by the COVID-19 pandemic as discrete exceptional circumstances.

The Court provided guidance on how trial courts should account for pandemic-related delays, emphasizing a holistic approach and treating province-wide closures, jury blackouts, local restrictions, and backlog prioritization as discrete exceptional circumstances.

The appeals were allowed, and the stays of proceedings were set aside.

The appellant, Leonidas Economopoulos, appealed his convictions for drug offences and possession of proceeds of crime, arguing that the affidavit used to obtain a search warrant for his home and car was insufficient to establish reasonable and probable grounds.

The trial judge had found the affidavit sufficient, despite noted deficiencies, to conclude there were reasonable and probable grounds.

The Court of Appeal upheld the trial judge's decision, deferring to his review and agreeing that the affidavit met the legal test for ex parte authorizations, as articulated in R. v. Araujo.

The Court also rejected the argument that the trial judge improperly used cross-examination evidence to amplify the grounds for identification.

The appeal was dismissed.

This appeal concerns a wrongful conviction for manslaughter, stemming from the unreliable expert evidence of disgraced pathologist Dr. Charles Smith.

The appellant, convicted in 1997 for the death of a 17-month-old, sought an acquittal based on fresh expert evidence that contradicted the original "shaken baby syndrome" theory, proposing a "complex fall" as the cause of death.

The court admitted the fresh evidence, including a 911 call transcript and new expert opinions, finding that the modern forensic science undermined the trial evidence.

The court also discounted the appellant's police interview due to coercive interrogation techniques.

Given the lack of reasonable prospect for conviction, the appeal was allowed, the conviction set aside, and an acquittal entered.

The moving party (respondent in the appeal) sought security for costs of the appeal and trial.

The court granted security for costs of the appeal ($20,000) due to the appellant's unpaid costs from a previous motion, significant unpaid child support arrears, and questionable financial conduct, despite the appeal concerning the best interests of a child.

The court refused security for trial costs, finding legitimate issues were litigated.

Costs of the motion were awarded to the moving party.

Bradley MacGarvie and Thomas Nagy appealed their convictions for first- and second-degree murder, respectively.

The Court of Appeal found that the trial judge erred in instructing the jury on after-the-fact conduct evidence, failing to adequately explain its relevance and possible inferences.

For Nagy, the trial judge also incorrectly defined the mental element for party liability for murder under a common unlawful purpose and failed to provide a decision tree, leading to jury confusion.

While the provocation defence was correctly rejected for MacGarvie, and the admission of Nagy's criminal record and lay opinion evidence was upheld, the errors in jury instructions were deemed sufficiently serious to warrant a new trial for both appellants.

This is a Crown appeal from an acquittal in a home invasion robbery case.

The Crown alleged the respondent was one of the perpetrators.

The trial judge acquitted the respondent after erroneously removing DNA evidence and prior discreditable conduct evidence from consideration as circumstantial evidence of guilt.

The Court of Appeal found that the trial judge erred by considering the DNA evidence in isolation and by failing to appreciate the full probative value of the prior discreditable conduct evidence, particularly regarding identity.

These errors had a material bearing on the acquittal.

The appeal was allowed, the acquittal set aside, and a new trial ordered.

The appellant, convicted of sexual assault and touching for a sexual purpose, appealed his convictions.

The appeal focused on the trial judge's credibility assessment of the complainant and the appellant, the interpretation of text messages, and the admissibility of fresh evidence regarding the appellant's post-conviction dementia diagnosis.

The Court of Appeal dismissed the appeal, upholding the trial judge's findings on credibility and the interpretation of inculpatory text messages as admissions of sexual abuse.

The court also rejected the fresh evidence application, finding it lacked cogency and due diligence.

The appellant sought to overturn a trial judge's order concerning equalization payment, occupation rent, spousal support, and allocation of liabilities.

The Court of Appeal dismissed the appeal, finding no palpable and overriding errors in the trial judge's findings, which were owed deference.

The court also noted the appellant's non-disclosure of significant assets, which further undermined the grounds for appeal.

The appellant appealed orders from the Superior Court of Justice.

The central issue was whether the relationship between the appellant and Bingemans was that of a licensee/licensor or a tenant/landlord, a question of contractual interpretation.

The Court of Appeal affirmed the application judge's finding that the "License to Occupy" agreement clearly established a licensor-licensee relationship.

As the appellant breached the license and refused to leave, he was deemed a trespasser, justifying police intervention.

Both appeals were dismissed, and costs were awarded to the respondents.

The appellant, Robert Francis Fox, appealed his conviction for sexual assault after pleading guilty mid-trial.

He sought to withdraw his guilty plea, arguing it was involuntary due to misinformed advice from his trial counsel regarding the collateral consequence of losing access to his young daughter if convicted.

The Court of Appeal, considering fresh evidence from a family and criminal lawyer, found that the trial counsel's advice was exaggerated and incorrect, leading to an improperly informed plea.

The appeal was allowed, the guilty plea set aside, and a new trial ordered.

The appellant, M.V., appealed a sexual assault sentence, arguing for enhanced credit for time served in federal custody after his initial conviction was overturned and a new trial ordered.

The trial judge had granted 1:1 credit for this period, reasoning that the appellant had access to federal programs.

The Court of Appeal found this to be an error in principle, as the trial judge failed to consider that this time would not count towards parole eligibility and statutory release for the new sentence.

The appeal was allowed, and the appellant was granted an additional 368 days of credit, reducing his net sentence from two years to one year.

Nathaniel White, found not criminally responsible, appealed a disposition of the Ontario Review Board (ORB) that removed his community living and 30-day pass privileges.

The ORB had accepted his request for a lateral transfer to another facility but removed the privileges based on clinical opinion that community living was not realistic due to his recent decompensation and need for a slower, more supported approach to treatment.

The Court of Appeal dismissed the appeal, finding the ORB's decision was not unreasonable or based on an error of law, distinguishing it from a case where there was a misapprehension of information.

The appellant appealed a 22-month jail sentence for accessing and possessing child pornography, seeking a conditional sentence and arguing errors in considering an unconstitutional mandatory minimum and failing to weigh health problems.

The Crown conceded the unconstitutionality of the minimum but argued the sentence was fit.

The Court of Appeal upheld the 22-month sentence, finding it appropriate given the nature and volume of the material, and that health issues were considered.

However, on consent, the court allowed the appeal to substitute a 20-year Sex Offender Information Registration Act (SOIRA) registration for the lifetime order, applying the Supreme Court of Canada's decision in R. v. Ndhlovu.

The appellant appealed his convictions for drug trafficking and possession of proceeds of crime, arguing that his s. 10(b) Charter right to counsel was breached upon arrest.

The Court of Appeal reviewed the trial judge's factual finding regarding the appellant's response to the police's offer of counsel ("I will at some point").

The court found no palpable and overriding error in the trial judge's determination that this statement did not constitute an invocation of the right to counsel, consistent with established jurisprudence.

As a result, no Charter breach occurred, and the issue of excluding evidence under s. 24(2) of the Charter was not considered.

The appeal was dismissed.

The appellant appealed his convictions for two counts of sexual assault following a judge-alone trial.

The appeal focused on the trial judge's assessment of the complainant's credibility and reliability, arguing that the judge misapprehended evidence and failed to address the cumulative impact of weaknesses in the complainant's testimony.

The Court of Appeal reviewed the record and the trial judge's reasons, finding no misapprehension of evidence or piecemeal approach.

The trial judge's findings on credibility were upheld, and the appeal was dismissed.