Miscarriage of justice

The moving party, convicted of impaired driving, sought to re-open his application for leave to appeal, arguing that due to an administrative error, the panel was not provided with all the material filed.

The moving party had relied on arguments from factums in two other related applications.

The Court of Appeal dismissed the motion, noting that the panel had in fact obtained and reviewed the related factums before determining the original application.

The moving party failed to establish a clear and compelling case that a miscarriage of justice would likely occur absent a re-opening.

The appellant appealed his convictions for five counts of attempted murder and arson, alleging ineffective assistance of trial counsel.

He claimed his counsel failed to challenge the voluntariness of his police statement and failed to prepare him for trial.

The Court of Appeal dismissed the appeal, finding no factual basis for the claims and concluding that, even if there were, the appellant suffered no prejudice given the overwhelming evidence of guilt and the trial judge's detailed reasons for rejecting his testimony.

The appellants, a corporation and its owner, appealed their convictions for tax evasion and making false statements under the Income Tax Act.

The trial judge had found that claiming the owner's son's wedding as a business expense was illegal, relying heavily on a finding that there was 'no evidence' that business associates attended the wedding.

The Superior Court of Justice allowed the appeal, finding that the trial judge misapprehended the evidence of the company's accountant, who testified that the owner told him many business associates were present.

This misapprehension played an essential role in the trial judge's reasoning, resulting in a miscarriage of justice.

A new trial was ordered.

The appellant appealed his conviction for impaired driving and 'over 80', arguing that the Crown's cross-examination of its own police witness during a blended trial and voir dire resulted in a miscarriage of justice, and that his s. 10(b) Charter rights were violated when he was not permitted to contact his father to arrange counsel.

The Superior Court of Justice dismissed the conviction appeal, finding that the procedural irregularity did not render the trial unfair and that the trial judge's factual finding that the appellant sought to contact his father for emotional support rather than to retain counsel was entitled to deference.

The appeal against sentence was allowed to the extent of setting aside the victim fine surcharge.

The appellant was convicted of multiple offences relating to a residential break-in and theft of firearms.

On appeal, he argued the trial judge erred in denying him standing to challenge a warrantless search of his girlfriend's vehicle, unfairly dismissed his s. 8 Charter challenges and Garofoli application, and erred in finding reasonable grounds for search warrants.

The Court of Appeal dismissed the appeal, finding that while the trial judge acted unfairly in summarily dismissing the Garofoli application and standing arguments without hearing submissions, no miscarriage of justice occurred because the applications had no reasonable prospect of success.

The appellant was convicted of sexual assault and sexual interference involving a young relative.

He appealed on the ground of ineffective assistance of counsel, alleging his trial counsel failed to properly advise him about his right to testify and effectively prevented him from doing so.

The Court of Appeal found that trial counsel failed to provide meaningful advice on the advantages and disadvantages of testifying.

Concluding that the appellant likely would have testified if properly advised and that his testimony could have reasonably affected the verdict, the Court found a miscarriage of justice occurred.

The appeal was allowed and a new trial ordered.

The appellant pleaded guilty to five charges arising from a home invasion, including an imitation firearm charge carrying a mandatory minimum sentence.

He appealed to strike his guilty pleas, alleging ineffective assistance of counsel.

The Court of Appeal allowed the appeal, finding that the plea to the imitation firearm charge was uninformed because trial counsel failed to advise him of it.

Furthermore, the court found that trial counsel provided ineffective assistance on the remaining charges by failing to assess the strength of the Crown's case, review disclosure, or consider potential Charter claims before advising the appellant to plead guilty.

The guilty pleas were struck and a new trial was ordered.

The accused sought to withdraw a guilty plea after learning it carried serious immigration consequences.

A majority held that an accused must show a reasonable possibility of subjective prejudice, meaning they would have pleaded differently if informed.

The court found the plea was uninformed but dismissed the appeal because that prejudice was not established.

The applicant was convicted of attempted robbery and subsequently retained new counsel to bring a mistrial application prior to sentencing, alleging ineffective assistance by his trial counsel.

The applicant argued his trial counsel failed to adequately prepare, failed to cross-examine key Crown witnesses on prior inconsistent statements, and provided flawed advice regarding the waiver of a preliminary inquiry.

The Superior Court of Justice found that trial counsel's failure to cross-examine key witnesses on crucial evidence and failure to properly advise the applicant on the benefits of a preliminary inquiry compromised trial fairness.

The mistrial application was granted.

The appellant challenged a conviction for sexual assault causing bodily harm, arguing misapprehension of evidence, failure to consider the totality of evidence, and an unreasonable verdict.

Applying the appellate standard of review under s. 686(1)(a)(i) and (iii) of the Criminal Code, the Court substantially agreed with the intermediate appellate reasons on miscarriage-of-justice issues.

The Court also rejected the alleged Beaudry error, finding no illogical or irrational reasoning process by the trial judge.

The verdict was held not unreasonable, and the conviction was upheld.

The appellant appealed his convictions for assault causing bodily harm and breach of recognizance arising from a parking lot altercation.

The trial judge had ruled that the complainant could not have consented to a fight because of the nature of the injuries sustained.

The appeal court found this was an error of law, as one cannot consent to the intentional infliction of bodily harm, but the mere fact that bodily harm resulted does not automatically vitiate consent.

The court declined to apply the curative proviso under s. 686(1)(b)(iii) of the Criminal Code, set aside the convictions, and ordered a new trial.

The appellant pleaded guilty to manslaughter in 1992 in connection with the death of her stepdaughter, largely based on the pathology evidence of Dr. Charles Smith.

Decades later, fresh expert evidence unanimously discredited Dr. Smith's findings regarding the cause and mechanism of death.

The Court of Appeal admitted the fresh evidence, finding that the original guilty plea was uninformed and the conviction unreasonable.

The appeal was allowed, the conviction was set aside, and an acquittal was entered.

The appellant appealed her summary conviction for driving 'over 80', alleging ineffective assistance of trial counsel.

She argued that trial counsel failed to request maintenance and calibration records for the approved instrument and that his failings caused adjudicative unfairness.

The Superior Court of Justice dismissed the appeal, finding that trial counsel provided reasonable professional assistance by retaining an expert, considering defences, and holding the Crown to its burden of proof, and that no miscarriage of justice occurred.

The appellant brought a motion to reopen a final judgment based on fresh evidence, specifically a document ('exhibit H') purporting to show the correct zoning for his property, which would resolve a dispute over a revoked building permit.

The court found it had jurisdiction to reopen the case under Rule 59.06(2)(a) to prevent a miscarriage of justice, despite the appellant's lack of reasonable diligence in bringing the document forward.

However, after reviewing the evidence, the court concluded that exhibit H was not an authentic document.

The motion to alter the previous judgment was dismissed, and the original remediation timetable remained in effect.

The appellant appealed a conviction for sexual interference involving a child complainant.

The appeal alleged errors including improper admission of spousal communications obtained through cross‑examination of the accused’s spouse without advising her of spousal privilege, improper admission of similar fact evidence involving unrelated sexual conduct with an adult several years earlier, and ineffective assistance of counsel related to disclosure of a letter written by the accused.

The court held that spousal privilege under s. 4(3) of the Canada Evidence Act required the spouse to be informed of the privilege before waiving it, and the failure to do so resulted in improperly admitted evidence that materially affected the credibility findings against the accused.

The court further found that the similar fact evidence lacked probative value and created significant prejudice.

Because these errors could have affected the verdict, the conviction was set aside and a new trial ordered.

The applicant brought a motion to set aside a prior costs order requiring payment of approximately $32,974.57 following earlier child support litigation.

The applicant alleged that the respondent had a special fee arrangement with his law firm which was not disclosed to the court and would have affected the costs determination.

The court applied the stringent test for setting aside an order based on newly discovered facts, as articulated in West v. West.

The court found the evidence did not establish the existence of a special fee arrangement but rather a payment mechanism involving internal fee credits used to satisfy legal accounts.

As the arrangement did not reduce or forgive the respondent’s fees and did not exist when the costs order was made, the applicant failed to demonstrate that the original order would have been different or that a miscarriage of justice would occur.

The appellant appealed a conviction for impaired driving following a guilty plea, arguing the plea was involuntary and that trial counsel provided ineffective assistance.

The court found the guilty plea was voluntary because the appellant understood jail was not a possible sentence regardless of the plea.

However, defence counsel failed to review all Crown disclosure, including videotape evidence showing the appellant in a police station washroom, which could have raised potential Charter s. 8 privacy issues.

The court held that failing to review the disclosure before advising the appellant constituted conduct falling below the standard expected of defence counsel.

Because proper review and advice could reasonably have affected the outcome, the court found a miscarriage of justice and set aside the guilty plea.

The appellant appealed a summary conviction for assault, arguing that the trial judge improperly limited cross-examination of the complainant regarding a reconciliation letter, thereby denying the right to make full answer and defence.

The appellant submitted that the proposed questioning was relevant to credibility and supported by the principles governing cross-examination and the rule in Browne v. Dunn.

The respondent argued the questioning concerned a collateral issue and that the trial judge properly exercised discretion to limit it.

The court held the proposed line of questioning was collateral and that, even if limiting it was erroneous, the evidence of guilt was overwhelming and no miscarriage of justice occurred.

The conviction was upheld.

The appellant appealed a conviction for operating a motor vehicle with blood alcohol exceeding the legal limit, alleging ineffective assistance of counsel at trial.

Trial counsel mistakenly believed roadside statements regarding alcohol consumption could be used to impeach the accused’s credibility, and therefore failed to pursue a Carter defence, obtain relevant disclosure, or retain toxicology evidence.

On appeal, expert evidence suggested the approved instrument may have lacked proper maintenance and that the accused’s blood alcohol concentration at the time of driving could have been below the legal limit.

The court held that counsel’s misunderstanding of governing appellate authority affected strategic decisions and constituted ineffective assistance.

The resulting prejudice created a reasonable possibility that the verdict would have been different.

The appellant was found guilty of six counts of failing to comply with a recognizance.

The Crown subsequently applied to have her found not criminally responsible (NCR).

On the day of the NCR hearing, the self-represented appellant was provided with a lengthy psychiatric report and requested a two-week adjournment to retain counsel.

The trial judge refused the adjournment, forcing the appellant to proceed unrepresented.

The Superior Court of Justice allowed the appeal, finding that the refusal of the adjournment in these circumstances undermined the appearance of fairness and amounted to a miscarriage of justice.

A new trial was ordered.