Karen M. Weiler

The appellant appealed convictions for trafficking-related offences, possession of proceeds of crime, breach of probation, and fraud over $1000.

The appeal focused on improper Crown cross-examination that repeatedly required the accused to comment on whether an undercover officer was lying or mistaken, together with aspects of the jury charge that overstated the accused's interest in the outcome and reinforced the Crown's position.

The court held that, while a single impropriety may not undermine a verdict, the cumulative effect of the improprieties here caused serious prejudice and deprived the appellant of a fair trial.

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

The appellant appealed his jury conviction for importing heroin after he and his wife were found carrying 9.9 kilograms of heroin on arrival from Pakistan.

The Crown conceded that the trial judge’s refusal to permit a Parks challenge for cause under s. 638(1)(b) of the Criminal Code was reversible error requiring a new trial.

The court rejected the argument that the verdicts were inconsistent, holding that the duress defence required an individualized assessment of the co-accuseds' personal characteristics and circumstances, including whether each had an obvious safe avenue of escape.

The court declined to determine the improper cross-examination ground because no acquittal was available and a retrial was already required.

The appellant appealed a sexual assault conviction, arguing that the trial judge improperly relied on prior consistent statements, made an unreasonable finding regarding attempted anal intercourse, and reversed the onus when discussing physical evidence.

The Court of Appeal held that the trial judge did not use prior consistent statements to bolster credibility, but only to identify the scope of the alleged recent fabrication and assess the explanation offered.

The court further held that the impugned factual finding was reasonably open on the evidence, including testimony and medical evidence.

It also found no onus reversal, as the trial judge merely noted the absence of an explanation capable of raising a reasonable doubt in the context of an admitted intercourse and consent defence.

The appeal was dismissed.

The appellant appealed convictions for aggravated assault, robbery, and uttering a death threat, and also appealed sentence.

The court rejected the challenge to the jury charge on identification evidence, holding the instruction was sufficient and finding no merit in that ground.

On sentence, the appellant argued parity required a reduction after a co-offender's sentence had been lowered on appeal.

The court held parity did not mandate equal sentences where the offenders' circumstances differed, including remorse, criminal record, and post-sentence evidence, and upheld the sentence as fit and free of error in principle.

The appellant challenged convictions arising from a package containing narcotics delivered to her address.

The Court of Appeal held the suspicious circumstances relied on by the Crown were insufficient to support the inference, beyond a reasonable doubt, that the appellant knew of the narcotics or was wilfully blind to their presence.

The evidentiary foundation for the trial judge's inferences was inadequate.

The appeal was allowed, the convictions were quashed, and verdicts of acquittal were entered.

The appellant appealed conviction and sentence arising from offences involving choking used to facilitate a sexual assault, while the Crown also appealed sentence.

The court held the trial judge was entitled, on the evidence including forensic evidence, to find that the choking facilitated the sexual assault notwithstanding inconsistencies in the complainant's testimony.

Although the trial judge misstated the law on corroboration in sexual assault cases, that error could only have benefited the appellant.

Leave to appeal sentence was granted to both sides, but no error in principle or demonstrable unfitness was shown, and all appeals were dismissed.

The appellant appealed jury convictions on two counts of trafficking in a narcotic, arguing loss of identification evidence, inadequate jury instructions on in-dock identification, inconsistent verdicts, and unreasonable verdicts.

The court held that the lost identification card relating to an acquitted count caused no prejudice to the defence on the remaining count.

It further found the jury was thoroughly instructed on the frailties and unfairness of in-dock identification.

Considering the surveillance, close-range observations, self-identification to police, and other objective features of identification, the court concluded the verdicts were reasonably supported by the evidence and dismissed the appeal.

The appellant corporation appealed the dismissal of its challenge to provincial corporation tax reassessments based on the thin capitalization rules.

The central issue was whether a mortgage debt to a non-resident shareholder had been incurred by a partnership or separately by the corporate partners, such that s. 18(4) of the Income Tax Act would apply.

The Court of Appeal accepted the respondent's position that the secured debt was the debt of the partners, with several liability limited to one-half each, and not a debt of the partnership.

Because that factual finding was supported by the evidence, appellate intervention was unwarranted and the thin capitalization rules applied.

The appellants challenged an order rejecting their allegation that the respondent had committed perjury in prior trial evidence.

The court held that the taped conversation relied upon did not establish, directly or by reasonable inference, that the respondent had deliberately misled the trial court.

The proposed affidavit evidence was not fresh because it could have been adduced on the motion, and in any event did not provide clear and cogent evidence of perjury or fraud.

The appeal was dismissed with costs.

The appellant appealed a jury conviction and advanced, among other grounds, ineffective assistance of counsel and improper use of evidence connected to a bail hearing.

Applying the governing two-part framework, the court held the proposed fresh evidence established neither incompetence nor a miscarriage of justice, and found the suggested alternative trial strategy would have exposed the appellant to highly prejudicial bad character evidence.

The court also held that the impugned questioning did not engage s. 13 of the Charter and did not violate s. 7 because the appellant was not confronted with his prior bail testimony and the reply evidence regarding the bail document was inconsequential.

The application to admit fresh evidence was dismissed and the appeal was dismissed.

The appellant appealed a sexual assault conviction arising from a motel room encounter where the central issue was consent and credibility.

The court held that the trial judge erred by instructing the jury that a deliberately false explanation could be used as circumstantial evidence of guilt without first requiring extrinsic or independent evidence that the explanation was concocted.

Given the nature of the case, the jury's difficulties, and the risk that the burden of proof was distorted, the curative proviso could not be applied.

The conviction was set aside and a new trial ordered.

The Crown appealed a sentence imposed following a guilty plea to aggravated assault arising from a stabbing that caused near-fatal injuries.

The majority held that the trial judge crafted a sentence that appropriately responded to the circumstances, including significant restrictions on liberty over four and a half years, and found no error warranting appellate intervention.

Fresh psychiatric evidence indicating the respondent's mental state was stable and that he presented no risk to the community reinforced that conclusion.

A dissenting judge would have set aside the conditional sentence and imposed a 12-month custodial sentence plus probation.

The appellant appealed a sentence of fifteen months' imprisonment imposed after a guilty plea to production of 102 marijuana plants.

The court held that the sentence was outside the appropriate range, noting the absence of a prior record, the absence of evidence of trafficking, and recent Supreme Court of Canada guidance on conditional sentences.

Applying the principle that a conditional sentence is likely a better sanction where both punitive and restorative objectives can be achieved, the court substituted a conditional sentence of fifteen months commencing on the date of judgment.

The appellant law firm appealed an order refusing to set aside a registrar's ex parte assessment order obtained by the client under s. 3 of the Solicitors Act.

The court held that a client may proceed by requisition only where the statutory preconditions are met, including a timely requisition and the absence of special circumstances.

The requisition was defective because it failed to specify a delivery date within the one-month statutory window.

In any event, the totality of the circumstances — including 29 bills over more than 11 years, differing services and file numbers, and payment of 28 bills — constituted special circumstances requiring a noticed court application.

The appeal was allowed and both the motion judge's order and the registrar's order were set aside.

The appellant appealed convictions for criminal negligence in the operation of a motor vehicle and assault with a weapon arising from a confrontation between police and occupiers of a provincial park claimed under an aboriginal treaty right.

The Court of Appeal rejected the argument that the trial judge misapprehended the evidence concerning intent and held the reasons must be read as a whole under the governing appellate framework.

The court further held that the defence of property under s. 41(1) of the Criminal Code was unavailable because the occupiers were not in peaceable possession and the force used by driving at police officers was neither necessary nor proportionate.

The defence of justification under ss. 27 and 30 also failed because the trial judge did not accept that the appellant acted to rescue the arrested band member.

Conviction and sentence appeals were dismissed.

The appellant appealed convictions entered after guilty pleas to three counts of first degree murder and sought to withdraw those pleas.

He advanced a fresh evidence application alleging the pleas were not voluntary and that he had been deprived of effective assistance of counsel, and also sought to adduce evidence from an unrelated matter involving the same defence counsel.

The court held that the record did not support involuntariness or ineffective assistance, and that the pleas were voluntary, unequivocal, and informed.

The proposed collateral affidavits from the unrelated matter were found to have no probative value.

The fresh evidence application and the appeal were dismissed.

The appellant challenged a priority ruling involving two motor vehicles, arguing its lease agreements were true leases and did not require registration under the Personal Property Security Act.

The Court of Appeal held that the agreements were open-end leases under which the lessee remained liable for any deficiency on disposition and received any surplus, making the arrangements financing agreements in substance.

Because the transactions created security interests under s. 2 of the Act, registration was required to preserve priority.

The appeal was dismissed with costs.

The appeal arose from a trial judgment rescinding an agreement of purchase and sale for vacant land marketed as a residential building lot when the vendors knew that obtaining a building permit was uncertain at best.

The Court of Appeal upheld the trial judge's findings that the purchasers reasonably relied on misrepresentations that the property was a building lot and that obtaining a permit would not be a problem.

The court rejected the argument that the statements concerned only a future event, holding that the representation related to an existing fact about the nature of the property.

Leave to appeal costs was granted on the cross-appeal, but the costs appeal was dismissed and the trial costs award on a party-and-party basis was left undisturbed.

The appellants appealed a trial judgment awarding damages for injuries sustained when an automatic sliding glass door closed on the plaintiff at an airport in Greece.

The trial judge found the appellants liable as occupiers, held there was no contributory negligence, and accepted medical evidence that the trauma and related brain surgery unmasked or accelerated the onset of Alzheimer’s disease by three years.

The Court of Appeal adopted the trial judge’s reasons, found no error of law, and dismissed the liability and damages appeal.

Leave to appeal the party-and-party costs order was granted, but that appeal was also dismissed given the trial judge’s broad discretion under rule 49.10(3) in light of the related medical negligence action tried at the same time.

Appeal from a Divisional Court order quashing a municipal restructuring commission’s final proposal amalgamating several municipalities and annexing unorganized territory.

The Court of Appeal held that judicial review of a restructuring commission performing a political and legislative function is narrowly confined to whether the commission acted according to law, and does not permit the court to revisit the merits of restructuring policy.

The Divisional Court erred in finding illegality, inadequate consultation with First Nations as a free-standing jurisdictional defect, failure to apply the former OMB 'three filters' test, an impermissible 'tax grab', and bias.

The cross-appeal seeking a declaration under s. 35(1) of the Constitution Act, 1982 was dismissed without prejudice because the record was inadequate for determination of the constitutional issue.