Howard Borenstein

The appellant was convicted of discharging a firearm with intent.

At trial, the appellant's girlfriend recanted her videotaped police statement implicating him, and then absconded before cross-examination before the jury.

The trial judge admitted the videotaped statement under the principled exception to the hearsay rule, finding necessity and threshold reliability.

The Court of Appeal upheld the admission, finding the trial judge correctly applied the legal criteria and that the transcript of the voir dire cross-examination adequately compensated for the inability to cross-examine before the jury.

The appeal was dismissed.

The applicant teacher was acquitted of criminal charges relating to alleged sexual misconduct with a former student in 1991.

The Ontario College of Teachers subsequently brought disciplinary proceedings against him under 1997 regulations.

The discipline committee refused the applicant's request for an adjournment, proceeded in his absence, admitted the criminal trial transcript and judge's obiter findings without adequate reasons, and found him guilty of professional misconduct.

The Divisional Court quashed the decision, finding that the committee breached natural justice by arbitrarily refusing the adjournment and failing to provide adequate reasons for its decisions.

The Court also held that applying the 1997 regulations to 1991 conduct offended the rule against retrospective application of legislation.

The appellant, a former bank employee, was convicted of fraud and theft-related offences arising from a scheme to steal from dormant accounts using inside information.

He appealed the restitution order of $40,734, arguing it was unfair to impose the full amount on him rather than apportioning it among his co-conspirators.

The Court of Appeal dismissed this argument, finding the full restitution order appropriate given the appellant's breach of trust as an employee.

However, based on a Crown concession regarding a calculation error, the restitution order was reduced to $33,733.96.

The appellant appealed his sentence, arguing that his low range of mental functioning should have been given more weight.

The Court of Appeal found that the trial judge considered the appellant's mental functioning, correctly concluded it did not detract from his moral culpability, and appropriately reduced the sentence by one year to reflect the difficulties of incarceration.

The sentence was deemed fit and the appeal was dismissed.

The Crown appealed the acquittals of the young person respondent on charges related to a series of car jackings.

The trial judge had excluded evidence under s. 24(2) of the Charter after finding that the police lacked objective reasonable grounds to arrest the respondent, rendering the arrest and subsequent searches unlawful.

The Court of Appeal held that the trial judge erred in law by failing to consider the totality of the circumstances, which objectively provided reasonable grounds for the arrest.

Consequently, the arrest and incidental searches were lawful, and the evidence should not have been excluded.

The appeal was allowed and a new trial ordered.

The appellant was convicted of armed robbery, use of an imitation firearm, and disguise with intent.

The Crown's case relied heavily on the testimony of the appellant's former girlfriend, who initially provided a false alibi but later recanted and testified that the appellant confessed to her.

The trial judge drew an adverse inference from the appellant's failure to testify, treating it as an exception under Noble because he found the alibi was fabricated.

The Court of Appeal held that the trial judge erred in drawing this adverse inference, as the defence did not advance an alibi at trial.

The appeal was allowed and a new trial ordered.

The appellant, a young person, fled from police and knocked on the door of an acquaintance's residence.

A child let him in, and the appellant asked him to pretend he lived there before going upstairs, where he was subsequently arrested.

He was convicted of forcible entry under s. 72(1) of the Criminal Code.

On appeal, the Court of Appeal held that the offence of forcible entry requires a taking of possession that interferes with the peaceable possession of the occupant, and that the manner of entry itself must be likely to cause a breach of the peace.

As the appellant entered peacefully with permission and did not interfere with the occupants' possession, the elements of the offence were not met.

The appeal was allowed and an acquittal entered.

The appellants were convicted of sexually assaulting two 15-year-old complainants.

The trial judge found that the complainants' bizarre and contradictory evidence was due to 'bolus drinking' and relied on a letter written by one complainant to find a lack of consent.

On appeal, the Court of Appeal held that the trial judge misapprehended the evidence, as one complainant had consumed very little alcohol, and the letter suggested consensual activity that was later regretted.

The Court set aside the convictions and ordered a new trial, finding that while the trial judge erred, the verdicts were not unreasonable.

The appellant appealed his convictions for sexual assault, invitation to sexual touching, and sexual interference against his former partner's son.

The appellant argued the trial judge made several errors, including improperly using neutral evidence to buttress the complainant's credibility, applying an uneven standard to criminal records, improperly using a prior consistent statement, and misapprehending evidence regarding inconsistencies.

The Court of Appeal dismissed the appeal, finding no material errors in the trial judge's assessment of credibility or evidence.

The appellant was convicted of assaulting a police officer and his summary conviction appeal was dismissed.

He appealed to the Court of Appeal, arguing the trial judge applied an uneven standard of scrutiny to the evidence.

The Court of Appeal agreed, finding the trial judge rejected the appellant's evidence based on minor contradictions while ignoring the police officers' lack of candour regarding the collaboration on their notes.

The appeal was allowed and an acquittal was entered.

The Crown appealed a youth court acquittal on a charge of trafficking in a substance represented or held out to be cocaine.

The trial judge erred in holding that the Crown was required to prove that the substance was not in fact cocaine.

Applying the authorities on held-out substances, the court held that the actus reus is the sale of something represented to be a controlled substance, and that the actual identity of the substance is immaterial.

The evidence amply supported that the respondent held out the substance as cocaine.

The acquittal was set aside, a finding of guilt was entered, and a one-year probation disposition was imposed.