Irving W. André

The appellant appealed a conviction for assault and the resulting sentence imposed after a domestic altercation in which the complainant alleged that the appellant choked her during an argument.

The appellant argued the trial judge misapplied the test in R. v. W.(D.), misapprehended inconsistencies in the evidence, improperly rejected the defence of de minimis non curat lex, demonstrated bias during trial, and erred by imposing restitution.

The court held that the trial judge properly applied the W.(D.) framework, reasonably assessed credibility, and correctly rejected the de minimis defence given the seriousness of choking during a domestic dispute.

Allegations of judicial bias were rejected as unfounded.

While the custodial sentence and probation were upheld, the stand‑alone restitution order was set aside as unnecessary because restitution had already been imposed as a probation condition.

The applicant, charged with three counts of first-degree murder relating to the deaths of her former spouse and his parents, applied for judicial interim release.

The Crown opposed the application on the primary, secondary, and tertiary grounds.

The court found the Crown had a strong circumstantial case and that the proposed plan of supervision, which included electronic monitoring, was insufficient to mitigate the risks of flight and interference with the administration of justice.

The court also concluded that the applicant's release would undermine public confidence in the administration of justice.

The bail application was dismissed.

The applicant, charged with three counts of first degree murder relating to her former husband and his parents, applied for judicial interim release.

The Crown opposed the application, arguing the applicant posed a flight risk, a threat to the administration of justice, and that her release would undermine public confidence.

The court reviewed the strong circumstantial case against the applicant, her history of breaching court orders, and the proposed plan of supervision involving electronic monitoring.

The court concluded that the applicant failed to show cause for release on the primary, secondary, and tertiary grounds, and dismissed the bail application.

The appellant appealed summary conviction findings of guilt for impaired operation of a motor vehicle and operating with excess blood alcohol.

He argued the trial judge erred in finding the arresting officer had reasonable and probable grounds to arrest, misapprehended the evidence, and improperly assessed credibility in rejecting his testimony about the implementation of his right to counsel under s. 10(b) of the Charter.

The court held that the trial judge correctly applied the legal test for reasonable and probable grounds and did not misstate the evidence regarding observations of impairment.

The trial judge’s credibility findings were entitled to deference and disclosed no palpable or overriding error.

The evidence, including observations of impairment and intoxilyzer readings, supported the conviction beyond a reasonable doubt.

Following a family law trial, the court determined issues of equalization of net family property, child support, and spousal support after a 13‑year marriage with two children.

The respondent sought an unequal division of property under s. 5(6) of the Family Law Act, alleging financial misconduct and depletion of assets by the applicant.

The court rejected the claim for unequal division, finding the evidence did not meet the high threshold of unconscionability required by the statute.

The court calculated the parties’ net family property and ordered an equalization payment, while declining to award spousal support due to the applicant’s extensive post‑separation payments toward household expenses.

Child support arrears and ongoing child support were ordered along with proportionate sharing of section 7 expenses.

The accused applied for a stay of drug trafficking charges under ss. 11(b) and 24(1) of the Canadian Charter of Rights and Freedoms, alleging unreasonable delay in bringing the matter to trial.

The total delay from charge to anticipated trial date was approximately 27.25 months.

Applying the framework from Morin, the court analyzed each contested period and concluded that only 12 months constituted Crown or institutional delay, which fell within acceptable institutional delay guidelines.

The court also found that the prejudice claimed by the accused was limited and largely attributable to the stress of being charged rather than the delay itself.

The application for a stay of proceedings was therefore dismissed.

The appellant appealed convictions for refusal to provide a breath sample, impaired driving, and mischief under $5,000 arising from a single‑vehicle accident and subsequent conduct in a police cruiser and breath room.

The court reviewed the trial judge’s findings regarding whether the appellant intentionally refused a breath demand and whether her emotional state constituted a reasonable excuse.

The appeal court held that insufficient consideration had been given to the brevity of the officer’s questioning and the failure to warn the appellant of the legal consequences of refusal while she was crying uncontrollably.

The conviction for refusal to provide a breath sample was set aside and an acquittal entered.

The convictions for impaired driving and mischief and the sentence imposed were affirmed.

The moving parties sought leave to bring a motion after the action had been set down for trial and requested consolidation of their action against a municipal official with a related municipal damages action.

The court considered Rule 48.04 of the Rules of Civil Procedure regarding post‑set‑down motions and concluded that leave should be granted due to trial fairness concerns arising from a recent change of counsel and incomplete preparation for trial.

The court then applied Rule 6.01 and s. 138 of the Courts of Justice Act to determine whether consolidation was appropriate.

Despite the respondent’s argument that the proceedings were at different procedural stages and consolidation would cause delay, the court found significant overlap in factual issues, witnesses, and potential findings.

Consolidation was ordered to avoid inconsistent results and to promote efficient use of judicial resources.

The appellant appealed summary conviction findings of guilt for impaired operation and refusing to provide a breath sample.

She argued the arresting officer lacked reasonable and probable grounds, unlawfully entered her residence in breach of s. 8 of the Charter, improperly detained her contrary to ss. 9 and 10, and that the evidence did not establish impairment or an intentional refusal to provide breath samples.

The appeal court held that the trial judge made no palpable and overriding errors in credibility findings or factual conclusions.

The officer’s approach to the residence fell within the implied licence to knock doctrine, reasonable grounds existed to arrest based on civilian observations and indicia of impairment, and the evidence supported findings of impairment and intentional refusal.

The convictions were upheld.

The Crown appealed an acquittal on a charge of excess blood alcohol where the trial judge excluded breathalyzer readings after finding a breach of the accused’s s. 10(b) Charter right to counsel.

The summary conviction appeal court held that the trial judge’s reasons for excluding the evidence were inadequate and prevented meaningful appellate review.

The trial judge also erred in law by failing to apply the tripartite framework under s. 24(2) of the Charter established in Grant.

While the finding of a s. 10(b) breach was open on the evidence, the exclusion analysis was legally deficient.

The acquittal was set aside and a new trial ordered.

The accused was charged in connection with a bank robbery where clothing discarded by the fleeing robber contained DNA matching the accused as a major contributor.

The Crown’s case relied entirely on forensic DNA evidence linking the accused to a baseball cap and sweatshirt recovered at the scene.

The court accepted that the DNA established the accused had contact with the items at some point but found it could not establish when or how the DNA was deposited.

Given the presence of multiple contributors and the inability to exclude that others wore the clothing during the robbery, the evidence did not eliminate reasonable alternative inferences.

The court held that DNA evidence alone, without additional corroborating evidence linking the accused to the offence, could not satisfy the burden of proof beyond a reasonable doubt.

The appellant appealed convictions for impaired care and control and excess blood alcohol arising from a six‑day trial.

He challenged the trial judge’s credibility findings, alleged a violation of his right to be tried within a reasonable time under s. 11(b) of the Charter, and argued that his vehicle was inoperable such that he lacked care and control.

The court held that credibility findings by the trial judge were entitled to deference and disclosed no palpable or overriding error.

The appellant had not raised a s. 11(b) issue at trial and provided no evidentiary basis for such a claim.

The evidence supported the finding that the appellant had care and control of an operable vehicle while impaired.

The defendants moved for summary judgment dismissing a civil action alleging unlawful arrest, unlawful detention, malicious prosecution, and negligent investigation arising from fraud charges.

The plaintiff argued there remained genuine issues for trial, including errors in the officer’s reliance on identification evidence and the timing of a Ministry of Transportation photograph.

The court noted that the Court of Appeal had ordered a new criminal trial after reviewing surveillance video and finding a reasonable possibility of misidentification.

The motion judge held that the evidentiary record, including the significance of the video evidence, prevented a fair and just determination on summary judgment.

The defendants failed to establish that there was no genuine issue requiring a trial.

The applicant sought a bail review to vacate a detention order after being charged with multiple domestic violence offences, including sexual assault and assault causing bodily harm.

The applicant argued a material change in circumstances occurred because the complainant recanted her allegations in multiple sworn statements and the applicant had already served significant pre-trial custody.

The court found that the recantation significantly weakened the Crown's case and that the time spent in pre-trial custody approached the likely sentence if convicted.

The application was granted, and the applicant was released on a recognizance with strict conditions, including electronic monitoring.

The appellant appealed a conviction for operating a motor vehicle with excess blood alcohol, arguing the trial judge erred in admitting intoxilyzer results after finding breaches of ss. 8 and 9 of the Charter.

The trial judge had concluded the investigating officer unlawfully arrested the accused but admitted the breath samples under s. 24(2) of the Charter after applying the Grant framework.

On appeal, the appellant argued the trial judge erred by failing to decide whether roadside sobriety tests occurred, by considering irrelevant factors in the s. 24(2) analysis, and by ruling on the impaired driving charge before determining the Charter application.

The summary conviction appeal court held the trial judge properly applied the Grant factors and was entitled to admit the breath evidence.

No reversible error was found.

The appellant appealed a summary conviction for dangerous driving, arguing that the trial judge misapprehended the evidence and failed to properly consider evidence suggesting the driving was the result of a momentary lapse.

The appellant also argued the trial judge relied on extrinsic information relating to possible alcohol impairment despite the withdrawal of the excess blood alcohol charge.

The court reviewed the applicable standards of review for factual and legal errors and considered whether the trial judge failed to address potentially exculpatory evidence.

The court held that the trial judge properly considered the evidence, rejected the momentary lapse explanation, and did not rely on extrinsic information.

The conviction was upheld.

The appellant appealed a summary conviction for dangerous driving under s. 249(1)(a) of the Criminal Code, arguing the trial judge erred in finding identity beyond a reasonable doubt and provided inadequate reasons.

The appellant contended the trial judge improperly relied on the contents of a telephone statement to establish identity and that the circumstantial evidence permitted other reasonable inferences.

The appeal court held there was sufficient independent evidence on a balance of probabilities to admit the statement and that, when combined with other circumstantial evidence, the only rational inference was that the appellant was the driver involved in the incident.

The court also found the trial judge’s reasoning was apparent from the record and adequate for appellate review.

Siblings of the respondent brought a motion seeking declarations that a gratuitous transfer of a deceased parent’s home into joint tenancy with one child was void for undue influence or, alternatively, subject to a resulting trust in favour of the estate.

The court reviewed the doctrines of undue influence and the presumption of resulting trust in the context of gratuitous inter vivos transfers from parent to child.

Evidence from the drafting solicitor and a neighbour demonstrated that the deceased independently intended the transfer and understood its consequences.

The presumption of undue influence was not established and, in any event, was rebutted.

The evidence also rebutted the presumption of resulting trust by demonstrating a clear intention to gift the property to the respondent through joint tenancy.

The accused was convicted by a jury of importing 4.1 kilograms of cocaine into Canada.

The Crown sought a sentence of 7 to 8 years’ imprisonment while the defence sought 6 years, both acknowledging a general range of 6 to 8 years for drug couriers importing multi‑kilogram quantities absent exceptional circumstances.

The court considered mitigating factors including the accused’s lack of criminal record, young age, parental responsibilities, educational progress, employment history, and prospects for rehabilitation.

However, the court emphasized the serious societal harm caused by cocaine trafficking and held that the mitigating circumstances did not justify a downward departure from the established range.

A custodial sentence within the range was imposed along with ancillary orders.

The defendant insurance company brought a motion for summary judgment to dismiss the plaintiff's claim for long term disability benefits.

The insurer denied the claim based on a pre-existing condition exclusion, arguing the plaintiff only became eligible for coverage after a three-month waiting period following his transition to full-time employment.

The plaintiff argued he was not subject to the waiting period.

The court found the policy clearly defined an employee as permanent and full-time, and the plaintiff's own discovery evidence confirmed he understood his eligibility date.

The court granted summary judgment for the defendant and dismissed the action.