Michael Tulloch

The Crown appealed acquittals for making and distributing child pornography and child luring arising from sexualized text messages sent by an adult to a 14‑year‑old boy about the boy's friend.

The Court of Appeal held that the trial judge committed legal errors in interpreting ss. 163.1 and 172.1 of the Criminal Code.

Private electronic communications can constitute “written material” capable of meeting the statutory definition of child pornography, and the analysis must focus objectively on the content of the communications rather than the accused's claimed joking motive.

The trial judge also erred by importing a requirement that luring be for a sexual purpose and by failing to consider the facilitation element of s. 172.1.

Because the legal errors affected the acquittals, the court set them aside and ordered a new trial on all counts.

The appellant was convicted of importing and possessing cocaine for the purpose of trafficking after customs officials found 1.2 kilograms of cocaine wrapped in his t-shirt in a truck's fuse box.

On appeal, he argued the trial judge made several errors in assessing his credibility, including taking improper judicial notice, misapprehending evidence, and reversing the burden of proof.

The Court of Appeal dismissed the appeal, finding the trial judge's credibility findings were reasonably open on the evidence and any alleged errors were peripheral to the core reasoning.

An application to admit fresh evidence was also dismissed for failing the Palmer test.

The appellant was convicted of second-degree murder and using a firearm while committing an indictable offence after shooting the deceased at a party.

The appellant claimed self-defence, testifying that the deceased had threatened him and appeared to be reaching for a gun.

On appeal, the appellant argued that the trial judge made several errors in instructing the jury on self-defence.

The Court of Appeal agreed, finding that the trial judge failed to properly instruct the jury on the issue of retreat, reversed the burden of proof regarding the third element of self-defence, and failed to provide a Baxter instruction.

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

The appellant appealed a three-year penitentiary sentence imposed following convictions for multiple sexual offences against a young complainant.

The offences involved luring the complainant to a residence, exposing her to pornography, sexual touching, and intimidation with a knife while demanding sexually degrading conduct.

The appellant argued that the sentencing judge failed to apply the totality principle and undervalued rehabilitation.

The Court of Appeal held that although the reasons did not explicitly reference totality, the sentencing judge was aware of the prior sentence and the effective concurrency of the new term.

The sentence was within the appropriate range and properly emphasized denunciation and deterrence for offences against children.

The appellants appealed an order granting summary judgment dismissing their action against a lawyer who received their cheque in trust for his client.

They argued the lawyer knew or ought to have known they relied on him to ensure the funds were disbursed in a particular manner.

The court held there was no basis to interfere with the motion judge’s factual findings that no such reliance was known or reasonably knowable to the lawyer, and that there was no evidence the monies were paid out for any unauthorized purpose.

The appeal was dismissed with fixed costs to the respondent.