Gloria J. Epstein

The appellant appealed a disposition of the Ontario Review Board, arguing that the Board failed to apply the 'least onerous and least restrictive' test under s. 672.54 of the Criminal Code when it denied a community living condition.

The Court of Appeal dismissed the appeal, finding that the Board was aware of and applied the correct test.

The Court held that the evidence, including the appellant's continuing substance abuse and personality disorder, amply supported the Board's conclusion that a community placement condition did not meet the mandated test.

The Crown appealed the total sentence of seven years and a $250,000 restitution order imposed on the respondent for his involvement in a $2.7 million armoured car theft and subsequent cocaine trafficking offences committed while on bail.

The Court of Appeal found the sentencing judge erred in principle by imposing an inadequate sentence for the drug offences and by failing to explain the totality reduction and the low restitution amount.

The appeal was allowed, the total sentence was increased to nine years, and the restitution order was increased to $1 million.

The appellant appealed his convictions for sexual assault, sexual interference, and invitation to sexual touching.

He argued the trial judge erred by failing to caution the jury against using the child complainant's section 715.1 videotaped statement to bolster her trial evidence, and that the Kienapple principle should stay the latter two convictions.

The Court of Appeal dismissed the appeal, finding the jury instruction was unnecessary as the videotaped statement forms part of the trial evidence, and holding that Kienapple did not apply because the offences have different legal elements.

The appellant appealed the trial judge's dismissal of her medical negligence claim regarding the administration of the Energix B vaccine.

The trial judge found that the nurse did not breach the standard of care, as the risk of serious neurological damage was not known in 1994, and that the appellant would have consented regardless.

The Court of Appeal found ample evidence to support the trial judge's findings of fact and credibility, concluding that the trial judge's findings on standard of care, informed consent, and causation were unassailable.

The appeal was dismissed.

The respondent was charged with offences under the Ontario Water Resources Act.

At his second trial, the trial judge stayed the proceedings and awarded costs against the Crown, finding that the Crown had engaged in egregious prosecutorial misconduct amounting to an abuse of process and a breach of section 7 of the Charter.

The summary conviction appeal court upheld this decision.

The Crown appealed to the Court of Appeal.

The Court of Appeal allowed the appeal, set aside the stay and costs award, and ordered a new trial, finding that the trial judge's conclusion of prosecutorial misconduct was tainted by palpable and overriding error and that many of the Crown's actions were sanctioned by court order.

The appellant appealed his convictions for multiple sexual assaults and his designation as a dangerous offender.

He argued that a saliva sample used for DNA comparison was obtained in violation of his Charter rights under s. 8 and s. 10(b).

The Court of Appeal held that the appellant provided a valid, informed waiver that severed any connection between the prior s. 10(b) breach and the taking of the sample.

The court also found no error in the jury instructions regarding expert DNA evidence or in the trial judge's dangerous offender designation, which properly assessed the appellant's treatability and risk to the community.

The appeal was dismissed.

The applicant, a dual citizen of Canada and Germany, sought judicial review of the Minister of Justice's decision refusing to accept further submissions regarding a 2004 surrender order for his extradition to Germany to face fiscal offences.

The applicant argued the Minister failed to consider his discretion to refuse extradition of a Canadian national under the extradition treaty, alleged bias, and claimed a lack of adequate reasons.

The Court of Appeal dismissed the application, finding that the former Minister had implicitly considered and rejected the reciprocity arguments, there was no evidence of bias, and the reasons provided were adequate.

The appellant, a first offender, pleaded guilty to attempted murder, forcible confinement, robbery, and sexual assault after a brutal and prolonged attack on a young woman.

He was sentenced to 15 years' imprisonment.

On appeal, he argued the sentence was excessive and that the judge failed to apply the principle that first offenders should receive the shortest possible sentence.

The Court of Appeal dismissed the appeal, holding that the shortest sentence principle does not apply to very serious and violent offences, and that the 15-year sentence was proportionate given the severe aggravating factors and the devastating, permanent injuries inflicted on the victim.

The appellant operated an adult entertainment parlour.

The City of Hamilton revoked the appellant's licence for failing to actively carry on business within a reasonable time.

The appellant sought judicial review, arguing a denial of procedural fairness because the City failed to provide proper disclosure of the grounds for revocation as required by its own by-law.

The Divisional Court dismissed the application.

On appeal, the Court of Appeal allowed the appeal, finding that the City's failure to provide proper notice and disclosure tainted the hearing from the outset and denied the appellant its right to a fair hearing.

The revocation was quashed and the licence reinstated.

The appellant challenged his conviction as a party to a sexual assault with a weapon arising from a group sexual assault committed during a heavily intoxicated gathering, arguing that the trial judge failed to address intoxication and scrutinized defence evidence more harshly than Crown evidence.

The court held that the intoxication defence had an air of reality, but the trial reasons, read contextually, showed the trial judge was aware of the defence and rejected it, thereby permitting meaningful appellate review.

The court also rejected the complaint about uneven scrutiny, finding the credibility analysis thorough and balanced.

Leave to appeal sentence was granted, but the sentence appeal was dismissed because the custodial term was fit and parity with youth co-accused sentenced under a different statutory regime did not assist the appellant.

The appellants appealed a decision recognizing a U.S. civil judgment against them for over $36 million.

They argued that they were denied a meaningful opportunity to defend the U.S. action because outstanding Canadian criminal charges precluded them from testifying in the U.S. proceeding without incriminating themselves.

The Court of Appeal dismissed the appeal, finding that the appellants could have testified in the U.S. proceeding and subsequently argued for the exclusion of that evidence in their Canadian criminal trial under the Charter or the trial judge's common-law discretion.

The appellant appealed his conviction for dangerous driving, arguing the verdict was unreasonable and the trial judge's reasons were insufficient given his acquittal on criminal negligence.

The Court of Appeal dismissed the appeal, finding the trial judge reasonably concluded the appellant's driving was a marked departure from the standard of care.

The court noted the appellant was joy riding, driving extremely quickly, and failed to slow down despite seeing an ATV, meaning his distraction by a stereo was not a mere momentary lapse but part of a pattern of dangerous driving.

The trial judge properly applied the modified objective test for dangerous driving.

The appellant appealed his convictions for sexual assault, sexual interference, and accessing child pornography.

He argued the convictions were unreasonable due to inconsistencies in the complainant's evidence and that the trial judge erred in relying on certain photographs.

The Court of Appeal dismissed the appeal, finding no reviewable error in the trial judge's credibility assessments and concluding there was sufficient evidence to support the child pornography conviction.

The Court also declined to consider a 'private use' exception raised for the first time on appeal due to an insufficient evidentiary record.

The appellant appealed his conviction for dangerous driving.

The Court of Appeal allowed the appeal, finding that the trial judge erred by failing to consider whether the appellant reasonably believed the other vehicle was parked, and whether his driving amounted to a mere momentary lapse in otherwise normal driving.

The conviction was set aside and a new trial was ordered.

The appellant appealed a conviction entered by the Ontario Court of Justice.

The Court of Appeal for Ontario dismissed the appeal as abandoned.

In a medical malpractice action, the parties agreed to a bifurcated trial to determine the threshold factual issue of whether the defendant doctor advised the plaintiff to take a specific medication.

The trial judge decided the issue in favour of the plaintiffs, finding the doctor did not recommend the medication.

The defendants appealed to the Court of Appeal.

The plaintiffs moved to quash the appeal, arguing the order was interlocutory.

The Court of Appeal dismissed the motion to quash, holding that the order was final because it disposed of a defence and deprived the defendants of a substantive right that could be determinative of the entire action.

The appellant appealed a summary conviction appeal court decision that dismissed his appeal from conviction.

The appellant argued that the summary conviction appeal judge misstated the fourth branch of the Palmer test for admitting fresh evidence.

The Court of Appeal dismissed the appeal, holding that even if the judge misstated the test by using 'would' instead of 'could', the fresh evidence was ultimately inadmissible.

The appellant appealed her conviction, arguing the issue of bolus drinking.

The Court of Appeal agreed with the summary conviction appeal judge on the issue and dismissed the appeal.

The Crown appealed the conditional sentence imposed on the respondent by the trial judge.

The Court of Appeal found no basis to interfere with the sentence, noting the trial judge gave exemplary reasons.

The appeal was dismissed.

The appellant appealed an order determining a question of law under Rule 21.01(1)(a) regarding the interpretation of a lease.

The Court of Appeal upheld the motion judge's finding that the tenant could only look to its insurer for loss due to sprinkler leakages, even if the loss was less than the deductible under the insurance policy.

The appeal was dismissed with costs.