Jill M. Copeland

This decision concerns a third motion brought by the applicant to reopen an appeal abandoned in 2003, following his 1996 convictions for sexual assault, sexual interference, and sexual touching, and subsequent dangerous offender designation.

Previous motions to reopen were dismissed in 2005 and 2013, with the latter upheld by the Supreme Court of Canada.

The Court of Appeal, assuming without deciding jurisdiction for successive motions, found no change in circumstances or merit in the proposed appeal, emphasizing the critical need for finality in criminal proceedings.

The motion was dismissed.

This is an appeal of a summary judgment in a wrongful dismissal action.

The motion judge had awarded the appellant damages equivalent to six months' reasonable notice, reduced by two months for failure to mitigate.

The Court of Appeal found that the motion judge erred in reducing the appellant's damages for failure to mitigate.

Specifically, the motion judge erred in principle by suggesting the appellant should have sought lesser-paying jobs and made a palpable and overriding error by concluding the appellant "aimed too high" based solely on job titles without considering comparable duties.

The Court emphasized that the employer bears a heavy burden to prove both that the employee failed to take reasonable steps and that comparable employment would have been found.

The appeal was allowed, and the damages were based on an eight-month notice period without the two-month reduction.

The appellant appealed convictions for sexual assault and sexual interference and an indeterminate dangerous offender sentence.

The appeal raised two grounds: an alleged s. 11(b) Charter breach due to delay in the dangerous offender hearing, and an error in the interpretation and application of s. 752.1 of the Criminal Code regarding assessor designation.

The Court of Appeal dismissed the appeal, finding no s. 11(b) infringement as it was a transitional case with exceptional circumstances (dangerous offender proceedings and Crown illness).

While the trial judge erred in applying a presumption for the Crown's proposed assessor under s. 752.1, this error caused no substantial wrong or miscarriage of justice given the fairness of the proceedings and the overwhelming evidence supporting the dangerous offender designation.

The appellants, convicted of aggravated assault, appealed both their convictions and their 15-month custodial sentences.

The Court of Appeal dismissed the conviction appeals, finding no reversible error in the trial judge's assessment of causation of injuries.

However, the court granted leave to appeal the sentences, concluding that the trial judge erred in principle by automatically ruling out a conditional sentence due to the violence involved and by failing to adequately weigh all relevant sentencing objectives, including restraint and rehabilitation.

The Court of Appeal substituted the custodial sentences with 15-month conditional sentences, including a period of house arrest, while maintaining probation and ancillary orders.

The appellant appealed convictions for sexual assault and two counts of assault, arguing the trial judge misapprehended evidence and applied uneven scrutiny.

The Court of Appeal found that the trial judge made material misapprehensions of the complainant's evidence regarding inconsistent prior statements in an Indian proceedings affidavit and the timing of disclosure of allegations.

These errors were substantial, related to material issues, and played an essential role in the trial judge's credibility assessment, particularly concerning the defence theory of motive to fabricate.

The cumulative effect of these misapprehensions caused a miscarriage of justice.

The appeal was allowed, convictions set aside, and a new trial ordered.

The appellant, a truck driver, appealed his convictions for importing cocaine and possession for the purpose of trafficking, following a retrial.

The Crown's case was entirely circumstantial, with the central issue being the appellant's knowledge of the drugs found in his trailer.

The trial judge, sitting alone, rejected the appellant's testimony and concluded that knowledge was the only reasonable inference.

The Court of Appeal dismissed the appeal, finding the verdict reasonable, the trial judge's application of circumstantial evidence principles correct (including considering inferences from lack of evidence), and no material misapprehension of evidence that led to a miscarriage of justice.

The appellant's property was sold under power of sale.

She initiated an action alleging conspiracy to defraud and moved to set aside the sale, claiming fraud and improvidence.

The motion judge dismissed all claims except for an accounting by the mortgagee.

The Court of Appeal dismissed the appeal, finding no direct or circumstantial evidence of fraud, and that the sale was not improvident, especially considering the appellant's history of default and delay.

The appellant, convicted of first-degree murder and attempted murder for the benefit of a criminal organization, appealed a Superior Court judge's decision denying his application for a reduction in parole ineligibility under s. 745.6(1) of the Criminal Code.

The appellant argued the application judge erred by treating non-acknowledgment of guilt as a precondition, placing undue weight on gang membership, and misinterpreting R. v. Swietlinski.

The Court of Appeal dismissed the appeal, finding no material error in the application judge's discretionary decision, affirming that guilt acknowledgment is not a precondition but relevant to assessing responsibility, and that the judge's weighing of factors was reasonable.

The appellant was convicted of dangerous driving and aggravated assault and appealed both conviction and sentence.

The Court of Appeal dismissed the conviction appeal and the sentence appeal for dangerous driving.

However, the sentence imposed for aggravated assault was found to be unlawful due to a postponed commencement of the jail term.

The court allowed the sentence appeal for aggravated assault, varying it to a suspended sentence, considering the appellant's positive contributions, employment, and successful completion of a prior conditional sentence and probation.

The appellant sought to appeal a sentence of over 8 months for fraud and probation breach, arguing that a retroactive legislative change in 2013 removed his right to appeal a criminal inadmissibility finding to the Immigration Appeal Division (IAD) because his sentence exceeded six months.

He requested a reduction of the jail term to less than six months to restore this right.

The Court of Appeal, applying R. v. Pham, found that the original 8-month sentence was lenient and fit, considering the nature of the fraud and the appellant's criminal record.

The court held that reducing the sentence to avoid immigration consequences would constitute an "inappropriate and artificial sentence" and would circumvent Parliament's will.

The appeal was dismissed.

The appellants sought an interpretation of their retainer agreement with the respondent law firms, arguing it was a contingency fee agreement capped at one-third of any favourable result.

The respondents contended it was a "pay-as-you-go" agreement based on hourly rates, with a potential premium.

The application judge found it was a "pay-as-you-go" agreement with a reduced hourly rate and a premium, where only the premium was capped, not the hourly fees.

On appeal, the Court of Appeal upheld this decision, finding no error in the application judge's interpretation.

The Court affirmed that the application judge correctly applied principles of contract interpretation, including considering surrounding circumstances while ensuring they did not overwhelm the clear wording of the agreement.

The appeal was dismissed with costs.

The appellant, a landlord, appealed a trial judgment that found it liable for conversion of chattels belonging to its former tenant's chattel mortgagee (the respondent).

The trial judge awarded compensatory damages based on the chattels' market value and punitive damages.

The appellant argued the compensatory damages should have been limited to the outstanding chattel mortgage balance, claiming an ownership interest in the abandoned chattels, and that punitive damages were unwarranted or excessive.

The Court of Appeal dismissed the appeal, finding the appellant's ownership argument was a new theory not raised at trial and was contradicted by evidence.

The court affirmed that market value was the appropriate measure of damages for conversion and upheld the punitive damages award as a rational response to the appellant's high-handed conduct.

The appellant appealed an order declaring her a vexatious litigant under s. 140 of the Courts of Justice Act, which also discontinued her action against the respondents and prohibited further proceedings without leave.

The Court of Appeal reviewed the appellant's history of multiple, unsupported, and vexatious proceedings stemming from a rental dispute, including fraudulent affidavits, numerous appeals of procedural orders, and incredible claims.

The court found ample evidence that the appellant conducted proceedings in a vexatious manner and for improper purposes, upholding the application judge's decision.

The appeal was dismissed with costs.

The appellant, convicted of first-degree murder, appealed on the ground that the trial judge failed to explicitly instruct the jury that the alleged unlawful confinement, which formed the basis for constructive first-degree murder, must be a distinct criminal act from the killing.

The Court of Appeal dismissed the appeal, finding that the jury instructions, when read as a whole and in the context of the trial, sufficiently conveyed this distinct act requirement, providing the jury with a functional understanding of their task.

The appellant was convicted of gross indecency against his sister and appealed the conviction.

The appeal raised five issues, all concerning the trial judge's assessment of credibility and reliability of the appellant and the complainant.

The Court of Appeal dismissed the appeal, finding no errors in the trial judge's conclusions.

The court reiterated the high deference owed to trial judges' credibility findings and affirmed that the judge correctly applied principles regarding witness demeanor and the theory of recent fabrication.

The appellant, found not criminally responsible for assault and uttering threats, appealed a disposition by the Ontario Review Board (ORB) ordering her detention at the Centre for Addiction and Mental Health (CAMH).

She argued the ORB erred in finding she posed a significant threat, seeking an absolute or conditional discharge.

The Court of Appeal dismissed the appeal, finding the ORB's determination of significant threat was reasonable, based on her history of violence, treatment-resistant schizophrenia, lack of insight into her illness and medication, and the risk of decompensation leading to violent behaviour if medication ceased.

The court also upheld the ORB's refusal of a conditional discharge, noting its inquisitorial function was fulfilled and a detention order was necessary for public safety, as the Mental Health Act would not provide sufficient control in all foreseeable situations.

The Court of Appeal for Ontario dismissed an appeal concerning a coverage dispute.

The appellants challenged the lower court's finding that Proturf was an essential party to the original application.

The appellate court affirmed that determining the existence of an implied contract between the appellants and Proturf was central to the coverage issue, and procedural fairness necessitated Proturf's inclusion as a party, even without direct relief sought against them.

The appellant appealed his conviction for possession of cocaine for the purpose of trafficking, arguing the trial judge erred in admitting cash seizure evidence as discreditable conduct without proper notice, provided confusing jury instructions, and that the verdict was unreasonable.

The Court of Appeal dismissed the appeal, finding the cash seizure evidence was contemporaneous circumstantial evidence not relying on propensity reasoning, thus not requiring a Rule 30 application.

The jury instructions were deemed sufficient, and the verdict was reasonable given the compelling circumstantial evidence of the appellant's involvement in drug trafficking.

The appellant was convicted of aggravated sexual assault in 2013 for non-disclosure of her HIV-positive status during condomless vaginal intercourse, which the trial judge found vitiated consent due to a realistic possibility of transmission.

On appeal, fresh expert evidence was admitted, demonstrating that with antiretroviral treatment (ART) and an undetectable viral load, the risk of HIV transmission is effectively zero.

The Court of Appeal found that this new scientific understanding undermined the trial judge's conclusion regarding the realistic possibility of transmission in the appellant's specific circumstances.

Consequently, the appeal was allowed, the conviction was set aside, and an acquittal was entered.

The court declined to make a broader statement on the "realistic possibility of transmission" threshold beyond the specific facts of the case, citing institutional concerns and limitations of the fresh evidence record regarding multiple sexual contacts or viral loads that are suppressed but not undetectable.

The appellants, former portfolio managers, appealed a trial decision dismissing their claim for over $1.3 million in performance fees and a discretionary bonus from their former employer.

The Court of Appeal upheld the trial judge's finding that the appellants were not contractually entitled to performance fees directly from the respondent, as their entitlement was structured through a side agreement with a lead portfolio manager.

However, the Court found the trial judge erred in precluding the appellants from arguing their entitlement to a discretionary bonus, as this claim was sufficiently pleaded.

The Court awarded each appellant $115,000 for the discretionary bonus, determining that the employer's discretion in awarding bonuses was not exercised fairly and reasonably given the fund's exceptional performance and bonuses paid to similarly situated employees.