Timothy Breen

During an appeal involving allegations of ineffective assistance of counsel, the appellant's trial counsel retained his own lawyers.

Trial counsel's lawyers inadvertently disclosed a letter between trial counsel and themselves to the appellant's appeal counsel.

Trial counsel brought a motion for the return of the document, asserting solicitor-client privilege.

The Court of Appeal granted the motion, finding that the letter was privileged, the inadvertent disclosure did not constitute a waiver, and the innocence at stake exception did not apply to abrogate the privilege.

The appellant was convicted of multiple historical sexual offences and assault causing bodily harm against two of his daughters.

At trial, extensive evidence of the appellant's uncharged violent behaviour and strict discipline was admitted without objection.

The trial judge failed to provide a promised limiting instruction prohibiting propensity reasoning based on this bad character evidence.

Furthermore, the trial judge failed to instruct the jury that they could not use the evidence of one complainant to bolster or confirm the credibility of the other.

The Court of Appeal found these omissions constituted errors in law, allowed the appeal, quashed the convictions, and ordered a new trial.

The appellant appealed a conviction for failing to provide a suitable breath sample contrary to s. 254(3) of the Criminal Code.

He argued that the trial judge’s questioning created a reasonable apprehension of bias, that fresh evidence regarding the distance between two locations should be admitted, and that the trial judge erred in taking judicial notice of the location of a nearby hotel.

The appeal court admitted the fresh evidence but held that the trial judge’s intervention did not demonstrate bias and that judicial notice of the hotel’s location was permissible.

Although the trial judge had misapprehended the precise distance between the locations, the error did not materially affect the credibility findings or the ultimate verdict.

The conviction was upheld.

The appellant appealed convictions for three counts of dangerous driving causing death arising from a highway collision after attempting to pass three vehicles on a wet two-lane road while cresting a hill in heavy traffic.

The court held that the trial judge gave careful and thorough reasons and committed no reviewable error in finding that the passing manoeuvre was dangerous and a marked departure from the standard of a reasonable driver.

The court rejected appellate calculations advanced to challenge the factual findings, noting they had not been tested through the trial process and did not undermine the trial judge's reasoning.

The court also upheld the finding that evasive action and loss of control by the oncoming vehicle were foreseeable consequences of the appellant's conduct.

The appeal was dismissed.

In a youth criminal appeal from a conviction for possession of child pornography, the appellant argued that the search warrant was invalid because the information to obtain was sworn before a commissioner of oaths rather than a justice.

The court rejected that submission, holding that s. 487(1) of the Criminal Code requires only that a justice issue the warrant, not that the oath be sworn before a justice.

Relying on the statutory provisions permitting non-substantive deviations from prescribed forms and variation of Criminal Code forms to suit the case, the court held the local warrant application practice was appropriate.

The alleged s. 8 Charter breach was therefore not made out and the conviction appeal was dismissed.

The appellant was convicted of first-degree murder after an elderly woman died of asphyxiation when an intruder taped her mouth shut during a break-in.

On appeal, the appellant argued the trial judge erred in his jury instructions regarding the review of evidence, the legal duty to act, and the presentation of factual scenarios concerning the intruder's intent.

The appellant also argued the verdict was unreasonable.

The Court of Appeal dismissed the appeal, finding no errors in the jury charge and concluding it was reasonable for the jury to infer the appellant was present when the victim asphyxiated.

Two appellants appealed jury convictions for sexual assault and unlawful confinement arising from an assault on an intoxicated teenage complainant at a rural gravel pit.

The court held that the trial judge properly instructed the jury that it could consider defence counsel's failure to cross-examine the complainant on a central factual issue later contradicted by one appellant's evidence when assessing credibility.

The court also rejected objections to evidence that two witnesses had pleaded guilty to perjury in relation to their preliminary inquiry testimony.

Although aspects of Crown cross-examination and submissions touched improperly on one appellant's pre-trial silence, the curative instruction was held sufficient and no miscarriage of justice was found.

The appellant appealed a sexual assault conviction, arguing that the trial judge misapprehended material evidence and that the finding of guilt was unreasonable.

The appeal focused on the complainant's post-incident police statement, conflicting evidence from another witness about a prior incident, and an alleged motive to fabricate arising from employment circumstances.

The Court of Appeal held that the trial judge considered each point, was entitled to accept and reject portions of the evidence as he did, and gave clear and persuasive reasons.

The conviction appeal was dismissed.

The appellant appealed an 18-month sentence imposed following conviction for criminal negligence causing bodily harm.

He argued the sentencing judge failed to give proper effect to restorative justice principles and should have imposed a conditional sentence.

The court held the sentencing judge had fully considered the relevant sentencing principles later articulated in Proulx, and that a custodial sentence was entirely appropriate given the highly dangerous conduct and the serious injuries to the complainant.

Leave to appeal sentence was granted, but the appeal was dismissed.

A criminal lawyer appealed a contempt conviction arising from his failure to appear with his client at a peremptory disposition hearing.

The Court of Appeal held that counsel non-appearance is not per se criminal contempt and that the fault element requires at least indifference to obligations to the court and client.

The trial judge erred by cutting off evidence about arrangements made for an associate to attend and by relying on prior non-appearances by the lawyer and others in his firm without proper notice.

The conviction was quashed and an acquittal entered because, on the uncontested affidavit record, the conduct did not amount to criminal contempt.