Joanne McLean

Appeal decision of the Supreme Court of Canada in 2013 SCC 61, addressing the legal issues identified in the reasons and determining the matter on the basis set out by the Court.

The Crown appealed a trial judge's decision to stay impaired driving charges against the respondent due to an alleged violation of his right to be tried within a reasonable time under s. 11(b) of the Charter.

The total delay was just over 15 months.

The Superior Court of Justice found that the trial judge erred in characterizing the delay periods, particularly by failing to properly account for neutral intake time, inherent time requirements for pre-trial conferences, and the time needed for counsel to prepare.

The court concluded the systemic delay was within acceptable guidelines and the societal interest in prosecuting drinking and driving offences outweighed the minimal prejudice to the respondent.

The appeal was allowed and a new trial ordered.

The applicant, who was convicted of sexual assault, was granted court-appointed counsel under s. 694.1 of the Criminal Code for proceedings in the Supreme Court of Canada and incidental proceedings in the Ontario Court of Appeal.

The parties disagreed on the hourly rate to be paid by the Attorney General.

The Crown argued for the provincial legal aid tariff, while counsel sought higher rates based on their experience and the complexity of the case.

The Supreme Court held that the legal aid tariff is not conclusive, and the determination should be based on a broader assessment of what is fair and reasonable.

The Court fixed the rates at $225 per hour for senior counsel and $175 per hour for junior counsel.

The appellant appealed his conviction for first-degree murder, arguing the trial judge made several errors in her jury instructions.

The Crown's theory was that the appellant killed the victim during a sexual assault, relying on forensic evidence and the appellant's post-offence conduct.

The defence argued the sexual intercourse was consensual and pointed to an alternate suspect.

The Court of Appeal found that the trial judge erred by failing to properly set out the defence's position and the evidence supporting it.

Furthermore, the trial judge's instructions on the appellant's post-offence conduct and fabricated statements were flawed, and she failed to instruct the jury on how to use the alternate suspect's post-offence conduct.

The appeal was allowed and a new trial ordered.

The appellant was convicted of sexual assault in 1995 based on the testimony of a single witness.

After a remand from the Supreme Court of Canada, the Court of Appeal considered the admissibility of fresh evidence.

The Court found that trial counsel provided ineffective assistance by failing to use available evidence that could have undermined the credibility of the Crown's sole witness, including evidence of a motive to lie and failure to report the incident.

The Court admitted the fresh evidence, allowed the appeal, quashed the conviction, and ordered a new trial, concluding that the ineffective assistance resulted in a miscarriage of justice.

On a ministerial reference concerning a 1972 murder conviction, the court considered whether previously undisclosed police information about a potentially exculpatory alibi and witness statements, and new expert reports about false confessions, were admissible as fresh evidence.

The majority held that the alibi-related material and related witness information were admissible under the Palmer framework because they could reasonably have affected the verdict, although the Crown's non-disclosure did not render the 1972 trial unfair under the disclosure standards then prevailing.

The majority rejected the recent expert reports as not truly fresh, finding that their substance had already been before the jury through trial experts.

Treating the matter as an appeal, the majority quashed the conviction and ordered a new trial; one judge dissented on the first question and would have refused admission of the fresh evidence.

The appellant appealed his conviction for second degree murder, arguing that the trial judge erred in admitting post-hypnosis identification evidence, failed to properly instruct the jury on eyewitness identification and alibi evidence, and delivered an unbalanced charge that favoured the Crown.

The Court of Appeal found that while the post-hypnosis evidence was properly admitted, the trial judge committed serious errors in his jury instructions regarding the frailties of the identification evidence and the requirements for finding a fabricated alibi.

Furthermore, the jury charge lacked fairness and balance, compromising the appellant's right to a fair trial.

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

The appellant was convicted of second degree murder for killing his ex-girlfriend.

He appealed the conviction on several grounds, including the admission of post-offence conduct, similar fact evidence, and hypnotically enhanced testimony from a witness.

The Crown cross-appealed the sentence, seeking an increase in the 10-year parole ineligibility period.

The Court of Appeal dismissed both appeals, finding no reversible errors in the trial judge's evidentiary rulings or jury instructions, and upholding the sentence as fit and entitled to deference.

The applicant brought a second original application for bail pending appeal from a second degree murder conviction after an earlier bail application and review had been dismissed.

The court held that a fresh application may proceed only where there has been a material change in circumstances affecting one or more of the statutory factors in s. 679(3) of the Criminal Code.

The court found such a change based on significantly stronger grounds of appeal, improved evidence that the applicant would surrender, and extraordinary delay caused by the pursuit of fresh evidence.

Balancing enforceability against reviewability under the public interest branch, the court concluded that further detention was not necessary and granted release pending appeal.