Howard Borenstein

The appellant was convicted of discharging a firearm with intent.

At trial, the appellant's girlfriend recanted her videotaped police statement implicating him, and then absconded before cross-examination before the jury.

The trial judge admitted the videotaped statement under the principled exception to the hearsay rule, finding necessity and threshold reliability.

The Court of Appeal upheld the admission, finding the trial judge correctly applied the legal criteria and that the transcript of the voir dire cross-examination adequately compensated for the inability to cross-examine before the jury.

The appeal was dismissed.

The applicant teacher was acquitted of criminal charges relating to alleged sexual misconduct with a former student in 1991.

The Ontario College of Teachers subsequently brought disciplinary proceedings against him under 1997 regulations.

The discipline committee refused the applicant's request for an adjournment, proceeded in his absence, admitted the criminal trial transcript and judge's obiter findings without adequate reasons, and found him guilty of professional misconduct.

The Divisional Court quashed the decision, finding that the committee breached natural justice by arbitrarily refusing the adjournment and failing to provide adequate reasons for its decisions.

The Court also held that applying the 1997 regulations to 1991 conduct offended the rule against retrospective application of legislation.

The appellants were convicted of offences relating to the death of their eight-month-old son, who was found to have suffered extensive physical abuse during his life.

The father was convicted of second-degree murder and assaults, while the mother was convicted of criminal negligence causing death and failing to provide the necessaries of life.

On appeal, they argued the verdicts were unreasonable because the exact medical cause of death could not be determined, and challenged the admission of demeanour evidence, evidence of injuries to their second child, and various jury instructions.

The Court of Appeal dismissed the appeals, finding that the Crown was not required to prove a specific medical cause of death, and that while there were minor errors in the admission of evidence and jury instructions, they did not occasion a substantial wrong or miscarriage of justice given the overwhelming evidence of ongoing abuse.

The appellant, a former bank employee, was convicted of fraud and theft-related offences arising from a scheme to steal from dormant accounts using inside information.

He appealed the restitution order of $40,734, arguing it was unfair to impose the full amount on him rather than apportioning it among his co-conspirators.

The Court of Appeal dismissed this argument, finding the full restitution order appropriate given the appellant's breach of trust as an employee.

However, based on a Crown concession regarding a calculation error, the restitution order was reduced to $33,733.96.

The appellant appealed his sentence, arguing that his low range of mental functioning should have been given more weight.

The Court of Appeal found that the trial judge considered the appellant's mental functioning, correctly concluded it did not detract from his moral culpability, and appropriately reduced the sentence by one year to reflect the difficulties of incarceration.

The sentence was deemed fit and the appeal was dismissed.

The appellants appealed their convictions and four-year sentences for importing cocaine.

On the conviction appeal, the Court of Appeal upheld the trial judge's ruling that if an exculpatory utterance was admitted, its entire context had to be put before the jury.

On the sentence appeal, the Court found the four-year terms were within the appropriate range and that positive fresh evidence did not justify reducing the demonstrably fit sentences.

Both appeals were dismissed.

The appellant appealed his conviction and sentence.

The Court of Appeal dismissed the conviction appeal, finding that it was open to the trial judge to view the evidence as he did and that the conclusion was not unreasonable.

The sentence appeal was also dismissed, as the sentence reflected no error in principle and was not outside the acceptable range.

The appellant appealed his sentence and dangerous offender designation.

In light of the Supreme Court of Canada's decision in R. v. Johnson, the Crown conceded the appeal.

The Court of Appeal set aside the dangerous offender finding and indeterminate sentence, and remitted the matter for a new sentence hearing pursuant to section 759(3)(iii) of the Criminal Code.

The appellant was convicted of fraud over $5,000 and assault arising from a real estate transaction where he allegedly misappropriated funds from the complainant.

The trial judge based her decision entirely on a credibility contest, finding the complainant credible and the appellant not credible.

On appeal, the Court of Appeal found that the trial judge failed to properly apply the principles from R. v. W.(D.) regarding reasonable doubt and credibility.

The appeal was allowed, the convictions were quashed, and a new trial was ordered.

The young person appellants appealed their findings of guilt and dispositions for assault with a weapon involving a machete.

They argued the trial judge intervened excessively, failed to properly apply the W.(D.) framework, and reached unreasonable verdicts.

The Court of Appeal dismissed the conviction appeals, finding the trial judge's interventions did not render the trial unfair and his credibility findings were sound.

The disposition appeals were also dismissed, as the sentences were fit given the unprovoked nature of the violent assault and the appellants' status on bail at the time.

The Crown appealed the acquittals of the young person respondent on charges related to a series of car jackings.

The trial judge had excluded evidence under s. 24(2) of the Charter after finding that the police lacked objective reasonable grounds to arrest the respondent, rendering the arrest and subsequent searches unlawful.

The Court of Appeal held that the trial judge erred in law by failing to consider the totality of the circumstances, which objectively provided reasonable grounds for the arrest.

Consequently, the arrest and incidental searches were lawful, and the evidence should not have been excluded.

The appeal was allowed and a new trial ordered.

The Ontario College of Teachers brought discipline proceedings against a member for professional misconduct involving the sexual abuse of a student.

The Discipline Committee relied on findings from a related criminal proceeding, which established that the member engaged in sexual activity with the student, including fellatio, at the member's home.

The Committee found the member guilty of professional misconduct and ordered the immediate revocation of his Certificate of Qualification and Registration.

The appellant was convicted of armed robbery, use of an imitation firearm, and disguise with intent.

The Crown's case relied heavily on the testimony of the appellant's former girlfriend, who initially provided a false alibi but later recanted and testified that the appellant confessed to her.

The trial judge drew an adverse inference from the appellant's failure to testify, treating it as an exception under Noble because he found the alibi was fabricated.

The Court of Appeal held that the trial judge erred in drawing this adverse inference, as the defence did not advance an alibi at trial.

The appeal was allowed and a new trial ordered.

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 appellants were convicted of sexually assaulting two 15-year-old complainants.

The trial judge found that the complainants' bizarre and contradictory evidence was due to 'bolus drinking' and relied on a letter written by one complainant to find a lack of consent.

On appeal, the Court of Appeal held that the trial judge misapprehended the evidence, as one complainant had consumed very little alcohol, and the letter suggested consensual activity that was later regretted.

The Court set aside the convictions and ordered a new trial, finding that while the trial judge erred, the verdicts were not unreasonable.

The appellant appealed his convictions for sexual assault, invitation to sexual touching, and sexual interference against his former partner's son.

The appellant argued the trial judge made several errors, including improperly using neutral evidence to buttress the complainant's credibility, applying an uneven standard to criminal records, improperly using a prior consistent statement, and misapprehending evidence regarding inconsistencies.

The Court of Appeal dismissed the appeal, finding no material errors in the trial judge's assessment of credibility or evidence.

The appellant was convicted of assaulting a police officer and his summary conviction appeal was dismissed.

He appealed to the Court of Appeal, arguing the trial judge applied an uneven standard of scrutiny to the evidence.

The Court of Appeal agreed, finding the trial judge rejected the appellant's evidence based on minor contradictions while ignoring the police officers' lack of candour regarding the collaboration on their notes.

The appeal was allowed and an acquittal was entered.

The appellant challenged convictions for trafficking and conspiracy to traffic in heroin arising from two undercover drug transactions supported by surveillance, intercepted telephone conversations, and undercover officer evidence.

The court held that the circumstantial evidence compellingly established knowledge and participation in the conspiracy, and rejected arguments that the trial judge failed to identify the evidentiary basis for conviction or reversed the burden of proof.

Applying the co-conspirator evidence framework, the court found no basis to interfere with the convictions.

However, the court allowed the sentence appeal and reduced the custodial term from eleven years to eight years, placing the appellant at the lower end of the accepted range.

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.

Criminal conviction appeal arising from a taxi robbery prosecution in which the police obtained an inculpatory statement by threatening to "trash" the accused's mother's home during execution of a search warrant.

The court held that police conduct rendering a statement involuntary at common law infringes s. 7 of the Charter, and that the resulting oral statement and diagram were conscriptive evidence that had to be excluded under s. 24(2).

The court exercised its discretion to allow the accused to advance the Charter argument for the first time on appeal because voluntariness had been fully litigated at trial and the record was complete.

The court further held that the St. Lawrence rule must be modified to recognize a discretion to exclude involuntary confessions despite confirmation by real evidence, with admission justified only in highly exceptional circumstances.

Without the confession, the remaining evidence could not support conviction, so the convictions were quashed and acquittals entered.