Jennifer Burke

Summary conviction appeal from a conviction for driving over 80 arising from a roadside stop during a RIDE program.

The appellant argued that, after unsuccessful efforts to reach counsel of choice, police failed to provide the additional informational warning required when a detainee appears to change course on exercising the right to counsel.

The court held that the trial judge erred by not undertaking the required Prosper analysis and that the failure to give the warning breached s. 10(b) of the Charter.

Applying the Grant framework, the court excluded the Intoxilyzer readings and set aside the conviction, ordering a new trial before a different judge.

The accused pleaded guilty to multiple sexual offences involving his biological daughter, including incest and sexual activity beginning when the complainant was under 14 years old and continuing intermittently over many years.

The offences involved repeated vaginal, oral, and anal intercourse, an abuse of parental trust, and resulted in a pregnancy that ended in an abortion.

The complainant had intellectual limitations and remained vulnerable throughout the prolonged abuse.

The court emphasized denunciation and deterrence as primary sentencing objectives, finding rehabilitation of limited relevance given the offender’s age and lack of remorse.

A penitentiary sentence of eight years was imposed along with several ancillary orders.

The appellant appealed a conviction for theft under $5,000 arising from the alleged failure to deposit restaurant proceeds at a bank night deposit.

The trial judge relied heavily on testimony from witnesses who had viewed surveillance video that was later destroyed and reported that the accused did not appear at the deposit chute.

On appeal, the court held that although secondary evidence of the lost recording could be admissible, the trial judge misapprehended central aspects of the evidence, including the surveillance camera’s limited capture intervals and the assumptions underlying the Crown’s theory.

The court further found concerns regarding the probative value and prejudice of the secondary evidence and issues related to the burden of proof under the W.(D.) framework.

The cumulative effect of these errors rendered the trial unfair.

The appellants appealed their convictions for assault causing bodily harm, arguing that the trial judge's verdict was unreasonable, that he erred in his assessment of eyewitness identification evidence, gave insufficient reasons, improperly relied on post-offence conduct, and failed to consider self-defence.

The Superior Court of Justice dismissed the appeal, finding that the trial judge's conclusions were reasonably supported by the evidence of independent eyewitnesses who observed the group assault.

The court held that the trial judge made no palpable and overriding errors in his credibility findings, properly applied the law regarding parties to an offence, and correctly assessed the post-offence conduct of fleeing the scene.