D.R. O’Connor

The appellant was arrested for impaired driving and asked to speak to a specific lawyer.

After waiting over an hour for the lawyer to return the call, the police offered the appellant the opportunity to speak with duty counsel, which he refused.

He subsequently provided breath samples.

The trial judge excluded the breathalyzer results, finding a breach of the appellant's s. 10(b) Charter rights, and acquitted him.

The summary conviction appeal judge set aside the acquittal and ordered a new trial.

The Court of Appeal dismissed the appellant's appeal, holding that the availability of duty counsel is a crucial factor in determining reasonable diligence, and the appellant failed to exercise his right to counsel diligently when he refused duty counsel.

The appellant was convicted of multiple drug trafficking offences and sentenced to seven years' imprisonment.

Much of the evidence was derived from wiretaps.

The appellant appealed his convictions, arguing the trial judge erred in dismissing his Garofoli application to exclude the wiretap evidence under s. 8 of the Charter, alleging the supporting affidavit was misleading.

The Court of Appeal dismissed the conviction appeal, finding no error in the trial judge's conclusion that the police acted in good faith and that the evidence would not be excluded under s. 24(2).

The sentence appeal was also dismissed.

The respondent was charged with criminal harassment based on an information that was a nullity, as the alleged offence date predated the enactment of the criminal harassment provisions.

She was released on a recognizance with non-communication conditions, which she subsequently breached, leading to convictions for failing to comply and failing to appear.

A summary conviction appeal judge quashed the convictions, reasoning that the nullity of the underlying information rendered the release order a nullity.

The Court of Appeal allowed the Crown's appeal and restored the convictions, holding that the rule of law requires court orders to be obeyed until they are set aside through due process, even if the underlying information is a nullity.

The appellants were convicted of conspiracy related to the illegal entry of individuals into Canada.

They appealed their convictions, arguing that the trial judge erred in admitting intercepted communications obtained pursuant to Ontario wiretap authorizations that relied on evidence from a Quebec authorization.

The appellant Kullman also argued that the trial judge erred in admitting hearsay statements of his co-conspirator under the Carter approach, arguing it did not meet the necessity and reliability criteria established in Starr.

The Court of Appeal dismissed the appeals, finding no jurisdictional defects in the wiretap authorizations and holding that the traditional co-conspirators' exception to the hearsay rule survives the principled approach established in Starr.

The appellant appealed his convictions for trafficking, possession of proceeds of crime, and possession of a prohibited weapon.

During deliberations, the jury requested a playback of a specific portion of the appellant's testimony.

The trial judge refused the request, expressing confusion and instructing the jury to continue discussing.

The Court of Appeal held that the trial judge erred by failing to respond directly to the jury's question and denying them a review of evidence central to the appellant's credibility.

The convictions for the cocaine offences were set aside and a new trial was ordered.

The respondents appealed to the Ontario Municipal Board after the City of London failed to address their applications for zoning amendments and site plan approval for two apartment buildings.

The Board allowed the appeal in part, approving one building instead of two.

The City appealed to the Divisional Court, which dismissed the appeal.

On further appeal, the Court of Appeal held that while the Divisional Court erred in applying a patent unreasonableness standard of review rather than correctness or reasonableness, the result was correct.

The Court also rejected the City's argument that it was denied natural justice, finding that section 88 of the Ontario Municipal Board Act provided adequate notice that the Board could grant partial relief.

The appellant appealed his convictions for attempted murder and uttering a threat to cause bodily harm, as well as his sentence of 11 years and 4 months.

The appellant had confined his former girlfriend in the trunk of her car, bound her, and placed a plastic bag and canvas bag over her head secured with duct tape.

The Court of Appeal dismissed the conviction appeals, finding the trial judge's factual conclusions regarding the use of the plastic bag and the appellant's subjective intent to kill were supported by the evidence.

The court also upheld the threat conviction, noting it did not require proof of a weapon.

The sentence appeal was dismissed as the trial judge properly considered the aggravating factors, including the domestic context and breach of bail.

The appellant, an engineering student, sued the respondent university for fraudulent and negligent misrepresentation regarding the transferability of its two-year program to other Ontario universities.

The motions judge granted summary judgment dismissing the action and denied class certification, finding that the appellant's failure to complete one elective course meant he had not met a 'condition precedent' to rely on the representations.

The Court of Appeal allowed the appeal, holding that the claim was framed in tort, not contract, and therefore no condition precedent applied.

The summary judgment was set aside, and the certification motion was remitted to the Superior Court.

The appellant was convicted by a jury of six drug-related offences, including conspiracy to traffic cocaine and possession for the purpose of trafficking, and sentenced to seven years' imprisonment.

On appeal, the appellant challenged the jury instructions regarding reasonable doubt, the W.(D.) credibility framework, the separation of counts, and the definition of possession.

The Court of Appeal dismissed the appeals on the first three grounds, finding the charge as a whole was sufficient.

However, the Court allowed the appeal on the possession count, finding the trial judge erred by instructing the jury that responsibility for a bedroom was sufficient for possession of drugs found in an adjacent cupboard and ceiling.

A new trial was ordered for that count, and the global sentence was reduced from seven to six years.

The appellant appealed his conviction for sexual touching of his five-year-old stepdaughter.

He argued the trial judge failed to adequately warn himself about the frailties of the child's evidence, erred in relying on confirmatory evidence, and rendered an unreasonable verdict.

The appellant also sought to introduce fresh evidence regarding an undisclosed interaction between the Crown and the complainant's mother outside the courtroom.

The Court of Appeal dismissed the appeal, finding the trial judge properly assessed the evidence and credibility.

The application to admit fresh evidence was dismissed as it did not meet the Babinski test for admission based on non-disclosure.

The appellants appealed their convictions for second degree murder arising from a circumstantial case that they killed the deceased in order to steal and export his newly purchased vehicle.

The Court of Appeal rejected challenges to jury selection, exclusion of alleged third-party suspect evidence, and numerous aspects of the jury charge, including instructions on separate liability, recent possession, reasonable doubt, circumstantial evidence, manslaughter, and post-offence conduct.

The court also held that the co-accused's cut-throat closing address did not warrant severance or a mistrial, and that any improper advocacy was adequately corrected by the trial judge.

The convictions were upheld and the Crown's contingent cross-appeal was not addressed.

The appellant municipality appealed a judgment finding it liable for negligent misrepresentation arising from assurances given at council meetings that a road would be upgraded in time to permit a subdivision development.

The court held that the trial judge was entitled to accept the respondent's evidence over the municipal minutes, and that the respondent reasonably relied on the assurances in proceeding with the development agreement and related expenditures.

The representations were treated as implying an existing municipal commitment and ability to complete the road work, not merely non-actionable future promises.

In the circumstances, where the Reeve spoke before full council without correction, the municipality could be liable at the operational level in negligence.

The appeal was dismissed with costs.

A receiver appointed at the instance of a secured creditor sought recovery of deferred management fees withdrawn before receivership and operating funds deposited into a new bank account shortly before the appointment.

The Court of Appeal held that both claims were subject to equitable setoff because the respondent's cross-obligations arose from the same management relationship and were closely connected to the receiver's claims.

The court rejected arguments that the new account involved conversion or that the management agreement created a trust excluding the respondent's claims.

The appeal was dismissed and costs were awarded to the respondent.

The Crown appealed sentence for a very serious violent offence committed by a young first offender.

The Court of Appeal held that the six-month custodial sentence followed by probation was clearly inadequate and that appellate intervention was warranted.

Considering the respondent's completed incarceration, fragile psychological state, remorse, first-offender status, and the absence of any demonstrated ongoing danger to the community, the court concluded that a penitentiary term was not fit.

The sentence was varied to an 18-month conditional sentence to be served in the community, with probation to follow.

The appellant sought certiorari during an ongoing summary conviction trial after the trial judge refused to quash an information on the basis that there were allegedly no reasonable and probable grounds for one of the charges when the information was sworn.

The Court of Appeal held that interlocutory review in criminal proceedings is not routinely available and that certiorari cannot be used as a substitute for a prohibited interlocutory appeal absent compelling interests of justice.

Applying the governing framework, the court found no reason for immediate superior court intervention and held that the trial should have proceeded to completion within the ordinary criminal process.

The appeal was dismissed and the matter remitted to the trial judge.

The appellant appealed his attempted murder conviction arising from a gang invasion of a karaoke bar, arguing that the trial judge misdirected himself on the principles governing eyewitness identification evidence.

The court held that the identification case was very strong, based on circumstantial evidence and the eyewitness identification of two persons, and found no error in the trial judge's treatment of that evidence.

The appellant also sought leave to appeal sentence, submitting that a three-year sentence for extortion should have been concurrent rather than consecutive.

The court held that, regardless of that issue, the total sentence of 18 years, taking into account two years of pre-trial custody, was entirely appropriate.

The Crown appealed, with leave, from a summary conviction appeal decision that had reduced fines imposed on a corporate respondent convicted of two surviving workplace safety offences arising from an incident that caused an employee's death.

The Court of Appeal held that the trial judge's original sentence disclosed no error in principle and appropriately emphasized deterrence.

It found that the summary conviction appeal judge erred by diluting the importance of deterrence when treating it as only one of many sentencing factors.

The appeal was allowed and the original fines were restored.

The appellant sought leave to appeal from a summary conviction appeal judgment that set aside a stay of proceedings based on alleged unreasonable delay.

The court held that the delay between December 15 and May 5 was attributable to the defence, and that the trial judge improperly placed significant weight on systemic scheduling concerns unrelated to the actual causes of delay in the case.

Agreeing with the summary conviction appeal judge, the court concluded that a fair balancing of the relevant s. 11(b) factors did not justify a stay.

The application for leave to appeal was dismissed.

The appellant appealed his conviction following a guilty plea and sought to withdraw the plea, arguing it should not stand.

The court accepted trial counsel's affidavit that the plea was fully informed and voluntary and made in the face of an overwhelming Crown case.

The appellant also sought leave to appeal sentence and challenged the refusal of a conditional sentence for offences involving a large quantity of counterfeit travellers cheques, forged identification, embossing plates, a criminal record, and commission of the offences while on probation.

Leave to appeal sentence was granted, but both the conviction appeal and sentence appeal were dismissed.

The appellant challenged both the trial judgment and the costs award arising from a dispute concerning consideration for shares and obligations under minutes of settlement.

The Court of Appeal rejected the attack on the trial judge’s factual findings, holding there was evidence to support the impugned findings.

However, it held the trial judge erred in principle in awarding solicitor-client costs because the pleadings, while strongly worded, did not amount to fraud or dishonest conduct warranting elevated costs and were not pursued unreasonably.

Leave to appeal costs was granted, the appeal on costs was allowed, and party-party costs were substituted, with the respondent recovering 90 percent of the costs of the appeal.