Julie A. Thorburn

The appellant appealed firearm convictions arising from two mass shooting incidents and challenged the dismissal of a s. 11(b) Charter application.

The court held that the trial judge acted within his discretion in permitting a late Leaney application, where the prejudice caused by the Crown’s delay was cured by an adjournment and further disclosure.

Applying Jordan, the court upheld the deduction of periods attributable to defence delay, discrete exceptional circumstances, and pandemic-related delay, leaving the net delay below the presumptive ceiling.

The court also found the trial reasons on identity sufficient, given the combined force of police familiarity evidence, video evidence, and corroborative evidence linking the appellant to the vehicles and participants.

The appellant appealed a sexual assault conviction involving a protected complainant and argued that the trial judge misapplied the third branch of the W.(D.) framework.

The Court of Appeal held that the trial judge misapprehended defence counsel's submissions, conflated disbelief of the appellant's evidence with the step-three reasonable doubt inquiry, and used adverse credibility findings as a makeweight for guilt.

The court also found the reasons failed to grapple with material weaknesses in the complainant's evidence.

The conviction appeal was allowed and a new trial was ordered.

The accused appealed sentence after receiving a conditional sentence and probation for invitation to sexual touching arising from sexualized messages sent to a child, arguing that the sentencing judge should have granted a conditional discharge.

The Crown cross-appealed, asserting that the sentencing judge failed to make a mandatory DNA order, improperly omitted a contemplated s. 161(1) prohibition order, and inserted unlawful long-duration restrictions into the probation order.

The Court of Appeal held that the sentencing judge erred about the availability of a discharge, but the error had no impact because the reasons showed that only a punitive conditional sentence could satisfy denunciation and deterrence.

The court therefore dismissed the accused's sentence appeal, made the mandatory DNA order, corrected the unlawful probation terms, and declined to impose a new s. 161(1) order because the accused had not been given notice or an opportunity to make submissions.

The appellant appealed convictions for sexual interference, invitation to sexual touching, and making sexually explicit material available to a child, arguing that the trial judge's reasons were insufficient because they did not meaningfully address defence evidence from the appellant's mother.

The court held that appellate review of reasons is functional and contextual, and that the impugned defence evidence was largely hearsay and of limited probative value.

Even if accepted, that evidence could not materially support the defence theory or give rise to a reasonable doubt in light of the trial judge's credibility findings rejecting the appellant's account and accepting the complainant's evidence.

The appeal was dismissed.

The appellant appealed convictions for sexual offences against a child arising from online communications, inducement to travel to another city under false pretences, and subsequent sexual assaults, and also sought leave to appeal a seven-year global sentence.

The court rejected arguments alleging misapprehension of evidence, improper application of W.(D.), unresolved inconsistencies in the complainant’s evidence, and unfairness arising from the lengthy delay between verdict and reasons.

Applying the presumption of integrity for delayed reasons, the court held that the appellant had not displaced the presumption or shown after-the-fact reasoning.

The court also held the sentence was fit, emphasizing the seriousness of sexual offences against children and the aggravating circumstances of grooming, vulnerability, isolation, and forced intercourse.

Following a successful appeal and dismissal of a cross-appeal, the parties agreed that the appellants were entitled to costs throughout and agreed on the quantum for the application.

The Court of Appeal ordered the respondent to pay $105,000 in partial indemnity costs for the application and $70,000 in partial indemnity costs for the appeal, payable within 60 days.

The moving party brought a motion to quash the insurers' appeal of an order denying them leave to amend their pleadings to add the defence of civil fraud.

The moving party argued the order was interlocutory and should be appealed to the Divisional Court.

The Court of Appeal held that an order refusing leave to amend a pleading to advance a new substantive defence is a final order.

Because the order foreclosed the insurers' ability to assert the distinct defence of civil fraud, the appeal properly lies to the Court of Appeal.

The motion to quash was denied.

The appellant appealed an order denying her motion to set aside a default judgment obtained by the respondent after the appellant defaulted on her mortgage.

The motion judge found that while the appellant moved with reasonable dispatch, she failed to provide a draft statement of defence and her proposed defences lacked an air of reality.

The Court of Appeal found no error in the motion judge's articulation or application of the test for setting aside a default judgment and dismissed the appeal.

The appellant appealed a scheduling order made by the Superior Court of Justice.

The Court of Appeal quashed the appeal, holding that a scheduling order is an interlocutory order because it does not determine the merits of the dispute.

Therefore, the appeal should have been brought to the Divisional Court, and the Court of Appeal lacked jurisdiction.

No costs were awarded.

The moving party sought review of a single-judge order dismissing its motion for an extension of time to appeal an order made in a receivership matter.

The court held that no error in principle, legal error, misapprehension of the evidence, or unreasonable result had been shown, and accepted that the motion judge properly considered all relevant circumstances, including prejudice and the conduct of the receivership.

The court also refused to admit proposed fresh evidence because it was not shown to have been unavailable through due diligence and would not have affected the result.

The review motion was dismissed with costs payable to the receiver.

The appellant challenged a conviction for possession for the purpose of trafficking in carfentanil and fentanyl found in a bedroom linked to a suspected drug operation, arguing that the circumstantial evidence did not exclude the reasonable possibility that a former co-accused possessed the drugs.

Applying the circumstantial evidence principles in Villaroman and appellate deference to a trial judge’s inference drawing, the court held that the alternative theory was speculative because the appellant had keys to the building and unit, had been seen repeatedly in the bedroom, and had been linked to a debt list found there, while the former co-accused had none of those connections.

The appellant also sought to reduce a fit 10-year sentence through fresh evidence of extensive post-sentence rehabilitation.

Applying the Palmer criteria and sentence appeal principles concerning changed circumstances, the court refused the fresh evidence and held the sentence remained fit because rehabilitation had already been recognized as a major mitigating factor and ongoing custodial progress was better addressed by correctional and parole authorities.

The conviction appeal and sentence appeal were dismissed, although leave to appeal sentence was granted.

The appellants appealed an order striking their pleadings for failure to pay an outstanding costs award of $260,500.

They also sought to file fresh evidence and adjourn the appeal to advance an allegation that the underlying debt resulted from a fraudulent signature.

The court held that the order under appeal was a discretionary decision and found no basis to interfere, particularly given the motion judge's history with the matter.

It further held that the alleged fraud issue was not properly before the court because judgment had already been granted on that issue in an unappealed decision.

The appeal was dismissed with costs.

The appellant challenged a summary judgment granting the respondent bank possession of the appellant's residence and monetary relief arising from mortgage default.

The Court of Appeal held there was no merit to the appeal because the evidence was undisputed, the appellant admitted non-payment even after adjustments and an extension, and the mortgage contract authorized possession upon default after required notice.

The court also rejected reliance on the Charte hypothécaire canadienne, holding that it formed part of a federal economic statement and had no force of law.

The appeal was dismissed with costs to the respondent.

The appellant appealed a judgment dismissing his action against the respondents on the basis that he was an undischarged bankrupt at the relevant time and thus lacked capacity to commence it.

The appellant argued the trustee in bankruptcy had implicitly assigned him authority to commence the action by permitting him to manage the property under s. 30(1)(l) of the BIA.

The Court of Appeal held the motion judge committed no palpable and overriding error in finding that no express assignment had been made, as the trustee was unaware of both the fire damage and the action.

The court further held the appellant's claim for general damages for loss of enjoyment and use of the property was proprietary rather than personal in nature, and therefore vested in the trustee.

Appeal dismissed with no costs order given the respondents' non-participation.

The appellant was convicted of importing heroin contrary to s. 6(1) of the Controlled Drugs and Substances Act after approximately 11 kilograms of heroin were found in a suitcase he carried into Canada from South Africa.

On appeal, the appellant challenged the trial judge's findings of fact and credibility, alleged a miscarriage of justice from the Crown's purported withholding of exculpatory evidence on his electronic devices, and sought to introduce evidence regarding COVID-19 entry restrictions as new evidence.

The Court of Appeal found no reversible error in the trial judge's assessment, held there was no Crown disclosure failure, and determined the COVID-19 restrictions argument had already been considered at trial and was not determinative.

The appellants brought an application seeking wide-ranging relief regarding the operation of the respondent gun club and the finances of all three respondents.

The application judge dismissed the application on the basis of lack of standing, a full and final release previously signed by the appellants, and the expiry of the limitation period.

On appeal, the appellants attempted to argue the merits afresh without addressing the application judge's dispositive findings.

The Court of Appeal found no merit to the appeal, holding the release barred the claims and the limitation period had expired, and dismissed the appeal with costs of $22,000 to the respondents.

The appellant sought to prove the validity of a holograph codicil executed by the deceased testatrix, purportedly leaving the most valuable estate asset, a home farm worth approximately $20 million, to the appellant alone.

The trial judge found suspicious circumstances relating to both the testatrix's knowledge and approval of the codicil's contents and her testamentary capacity, and concluded the appellant failed to discharge her burden on either issue.

The Court of Appeal dismissed the appeal, finding no error in the trial judge's assessment of suspicious circumstances, no misapplication of the legal standard for knowledge and approval, and no improper reliance on the family doctor's clinical notes.

The court also found the reasons for decision were sufficient for meaningful appellate review.

Costs of $100,000 were awarded to the respondents.

The appellant, found not criminally responsible for multiple violent offences including discharging an air pistol at a victim, appealed a disposition of the Ontario Review Board continuing his detention at a forensic psychiatry program.

He sought an absolute or conditional discharge.

The Court of Appeal found the Board's decision was reasonable, noting the seriousness and recency of the index offences, the appellant's limited insight into his illness, ongoing concerns about substance use and impulsivity, and the lack of suitable community accommodation.

The appeal was dismissed, though the court commended the appellant's significant progress.

The appellant pleaded guilty to unprovoked aggravated assault against a fellow NCR resident, causing severe life-threatening injuries and permanent serious brain damage.

He was sentenced to four years' imprisonment, less credit for presentence custody.

On appeal, the appellant argued the sentencing judge erred in failing to further reduce his sentence to reflect the harsh presentence custody conditions he experienced due to his mental illness.

The Court of Appeal found no reversible error, holding that the sentencing judge expressly considered and gave credit for the appellant's mental health difficulties in custody and imposed a sentence at the lower end of the appropriate range.

The appellant sought to reduce a global nine-year sentence for armed robbery-related offences by relying on fresh evidence of pre-sentence custody lockdowns and triple bunking.

The court admitted the fresh evidence but held that harsh-custody mitigation required evidence of actual impact, which was not provided.

Applying the governing approach to custody conditions as a mitigating factor within overall fitness analysis, the panel found no error in principle and no demonstrable unfitness.

Given the appellant’s extensive robbery record, parole status at the time of the offences, and the already low-end fit sentence for armed robbery, a reduction would have made the sentence unfit.