James C. MacPherson

The appellant, convicted of multiple counts of sexual interference and sexual assault against his nieces and great-nieces, appealed his convictions.

The primary grounds of appeal were that the trial judge erred by admitting similar fact evidence without properly considering collusion among complainants and by applying a different standard of scrutiny to the evidence.

The Court of Appeal dismissed the appeal, finding no reversible error in the trial judge's assessment of collusion, credibility, or the application of similar fact principles.

The appellant, found not criminally responsible for aggravated assault, appealed the Ontario Review Board's decision to uphold her detention order.

The ORB found she remained a significant threat to public safety due to diagnosed schizoaffective disorder and substance use disorders.

The Court of Appeal dismissed the appeal, finding no error in the ORB's application of the "significant threat" test from Winko v. British Columbia (Forensic Psychiatric Institute), which requires a real risk of serious physical or psychological harm to the public resulting from criminal conduct.

The appellant appealed his convictions for attempted murder, arguing that the trial judge erred in assessing the mens rea required for attempted murder by wrongly attributing the actions of other shooters to him, and that the verdicts on four of the five convictions were unreasonable.

The Court of Appeal dismissed the appeal, finding no error in the trial judge's consideration of the appellant's specific intent.

The court held that the evidence amply supported the findings that this was a pre-planned, deliberate attack by shooters working in concert, and that the only reasonable inference was that all shooters had the specific intent to kill the victims.

The appellant, C.D., appealed his conviction for sexual interference, sexual exploitation, and sexual assault, and his sentence.

The sentence appeal was abandoned during oral submissions.

The conviction appeal raised three issues: the admissibility of prior discreditable conduct (the "shower incident"), the lack of a caution regarding the complainant's prior consistent statement, and the absence of an instruction against cross-count reasoning.

The Court of Appeal dismissed the appeal, finding no reversible errors by the trial judge.

The court held that the shower incident evidence was admissible for motive and to rebut defence theories, and that the lack of specific jury instructions was a legitimate tactical decision by defence counsel.

The appellant, D.W., appealed convictions for sexual assault and sexual interference, arguing the trial judge erred by improperly relying on the complainant's lack of embellishment to enhance credibility and by misusing a 2015 Children's Aid Society (CAS) record to rebut an allegation of recent fabrication.

The Court of Appeal dismissed the appeal, finding the trial judge's use of the lack of embellishment was permissible to assess motive to lie, and the CAS record was properly admitted as a prior consistent statement to rebut recent fabrication, not for the truth of its contents.

The sentence appeal was abandoned.

The Court of Appeal for Ontario heard an appeal concerning spousal support.

The husband appealed a Superior Court decision that significantly increased his lump sum spousal support obligation to the wife from an arbitration award.

The Court of Appeal found that both the appeal judge and the arbitrator erred in their application of the Spousal Support Advisory Guidelines (SSAGs).

The appeal judge failed to give deference to the arbitrator's findings and ignored relevant factors, while the arbitrator failed to adequately explain the departure from SSAGs.

The Court of Appeal substituted its own award, increasing the lump sum spousal support to $678,888 (from the arbitrator's $250,000, but less than the appeal judge's $1,893,603) and awarded the wife $100,000 in arbitration costs.

The appellant, D.S., appealed convictions for two counts of sexual assault and two counts of sexual interference involving his niece, T.S. The appeal raised four grounds: the trial judge's reliance on similar fact evidence, misapprehension of the complainant's credibility, illogical reasoning in rejecting the appellant's evidence, and the unreasonableness of the convictions.

The Court of Appeal dismissed the appeal, affirming the trial judge's proper application of similar fact evidence principles from R. v. Handy and upholding the credibility findings, noting the high bar for appellate intervention on such matters as per R. v. Kruk.

This appeal arose from a Superior Court order finding a director in civil contempt for failing to comply with an order for document production and examination in aid of execution in assessment proceedings.

The appellants argued there was no factual basis for the contempt finding and that enforcement was not in the interests of justice due to ongoing litigation.

The Court of Appeal dismissed the appeal, affirming the lower court's application of civil contempt principles, emphasizing that court orders must be followed unless stayed or overturned, and that reliance on legal advice does not shield a party from contempt.

The parties subsequently agreed on terms to purge the contempt and costs.

The appellant, Ms. Wong, appealed a lower court's finding of civil fraud against her, which arose from her misrepresentation to Aviva Insurance Company of Canada regarding who was driving during a motor vehicle accident.

The original application sought a declaration that Aviva owed her a defence, which was denied due to policy breach and civil fraud.

The Court of Appeal dismissed the appeal, affirming that Aviva had suffered a real, albeit unquantified, loss due to Ms. Wong's actions, specifically in terms of its ability to defend the main action, thereby satisfying the loss element of civil fraud.

The appellants appealed a summary judgment dismissing their negligence action against one defendant (Franchetto) following a motor vehicle accident.

The motion judge found Franchetto not negligent, applying the "sudden emergency" doctrine.

The Court of Appeal upheld this decision, finding no palpable and overriding error in the motion judge's conclusion that Franchetto's actions were reasonable given the sudden emergency created by the other driver.

The appeal was dismissed.

The appellant, Sajjad Asghar, appealed the Superior Court's dismissal of his action and the grant of summary judgment in favour of the respondent, Dial and File Process Servers Inc. The original action sought summary judgment against the respondent for not timely returning legal documents.

The motion judge found no liability on the part of the respondent for any asserted causes of action (fraud, breach of contract, Consumer Protection Act) and granted summary judgment to the respondent.

The Court of Appeal found no error in the motion judge's comprehensive analysis and dismissed the appeal, affirming that the respondent did nothing wrong.

The appellant was convicted of firearms offences and possessing proceeds of crime after a trial judge admitted evidence despite a s. 10(b) Charter breach.

The police delayed the appellant's access to counsel for nearly ten hours, based on an operational plan to secure search warrants first.

The Court of Appeal found the trial judge erred in the s. 24(2) Charter analysis by underestimating the impact of the breach on the appellant's security of the person.

The Court concluded that the breach was serious and deliberate, outweighing society's interest in admitting the evidence, and ordered the exclusion of the gun and cash, leading to acquittals.

The appellant, facing extradition to the U.S. for alleged sexual offenses, appealed his committal order and sought judicial review of the Minister of Justice's surrender order.

The appeal challenged the dismissal of a disclosure application, arguing a nexus between alleged misconduct during arrest and extradition proceedings, and the committal judge's finding on accessing child pornography, asserting the private use exception.

The judicial review argued the Minister's surrender order was unreasonable due to impermissible delegation and insufficient consultation with IRCC regarding potential deportation to India.

The Court of Appeal dismissed both the appeal and the judicial review, finding no error in the disclosure ruling, confirming the private use exception is a defence not for committal judges, and upholding the Minister's reasonable exercise of discretion and consultation.

The appellant was convicted of second-degree murder and sentenced to life with 12 years parole ineligibility.

He appealed both conviction and sentence, and alleged ineffective assistance of counsel.

The Court of Appeal dismissed the conviction appeal, finding no error in the trial judge's assessment of evidence and credibility.

However, the court granted leave to appeal the sentence, reducing the parole ineligibility period from 12 to 10 years.

The court held that pre-sentence custody conditions, especially those exacerbated by the COVID-19 pandemic, are a relevant mitigating factor in determining parole ineligibility under s. 745.4 of the Criminal Code, even without a Charter application, disagreeing with previous Superior Court decisions.

The claim of ineffective assistance of counsel was dismissed due to lack of evidence.

The appellant, S.H., appealed his convictions for historical sexual offences against his two stepdaughters and his seven-year global sentence.

The Court of Appeal identified two key errors by the trial judge: improper use of the appellant's provincial driving record to draw adverse inferences about his character and credibility, and a misapprehension of the appellant's testimony regarding a television program.

Despite the Crown's argument that these errors were harmless and could be cured by the proviso, the Court found that the cumulative effect of the errors was material to the trial judge's credibility assessment of the appellant, especially given the sparse reasons for accepting the complainants' evidence.

The Court concluded that the errors contributed to a miscarriage of justice and ordered a new trial on all counts.

The appellant was convicted of aggravated assault and robbery and appealed his convictions and sentence.

The Court of Appeal found that the trial judge erred in her R. v. Grant analysis by characterizing the impact of a s. 10(b) Charter breach (unreasonable delay in access to counsel of choice) as "neutral," when it should have weighed in favour of exclusion.

However, the Court applied the curative proviso under s. 686(1)(b)(iii) of the Criminal Code, concluding that even if the impugned evidence (satchel and knife) had been excluded, the remaining overwhelming identification evidence would have inevitably led to the same convictions.

The conviction appeal was dismissed, and the sentence appeal was dismissed as abandoned due to lack of submissions.

The appellant appealed a 12-year sentence for incest, criminal harassment, sexual exploitation, making child pornography, and possession of child pornography.

The appellant argued the trial judge erred by not alerting counsel to potential criticisms or rejection of an expert's risk assessment report.

The Court of Appeal dismissed the appeal, holding that a sentencing judge is not required to accept an expert's opinion in whole or in part and is entitled to weigh evidence.

The court found the sentence was not harsh given the severe aggravating factors, including the breadth, nature, and duration of the appellant's conduct and abuse of trust.

The appellant was convicted of sexual interference, invitation to sexual touching, incest, and sexual assault against his biological daughter and sentenced to nine years imprisonment.

On appeal, the appellant argued the trial judge applied uneven scrutiny to the evidence and that trial counsel was inadequate.

The Court of Appeal found no merit to the uneven scrutiny argument, affirming the trial judge's credibility findings, and no support for the inadequate counsel claim.

The court also found no error in the sentence, noting its consistency with sentencing principles for sexual violence against children.

However, the court granted a Charter remedy, varying the lifetime Sex Offender Information Registration Act (SOIRA) registration order to 20 years, with the Crown's consent.

The appeal from conviction and sentence was dismissed.

The appellant, Trayvon Boreland-Goode, appealed his convictions for possessing a loaded prohibited firearm and possessing a firearm contrary to a prohibition order.

The appeal raised two grounds: the trial judge's handling of a juror's note regarding another juror's influence during deliberations, and the reliability of a Crown witness's testimony concerning vehicle ownership.

The Court of Appeal dismissed the appeal, finding no error in the trial judge's decision to take the verdict without explicitly responding to the juror's note, as it did not involve a legal misapprehension and the verdict indicated the jury had resolved its internal difficulties.

The court also found the second ground of appeal, regarding the witness's memory of dates, to be without merit, as the crucial evidence of vehicle resale to the appellant was uncontradicted and supported the finding of constructive possession.

The appellant, Claudio Hernandez Barrios, appealed his conviction for forcible confinement.

The conviction arose from an incident where he prevented the complainant from leaving his bedroom.

The trial judge found him guilty based on his own testimony, where he admitted standing at or in the doorway, thereby preventing her exit.

The appellant argued that the trial judge misapprehended the evidence, claiming he had no intent to block the complainant.

The Court of Appeal applied the stringent standard for misapprehension of evidence, as established in R. v. Lohrer and R. v. Sinclair, and found that the appellant failed to meet this standard.

The Court concluded that the trial judge was entitled to find the offence of forcible confinement proven based on the appellant's own evidence.

The appeal was dismissed.