Marc Rosenberg

The appellant appealed his conviction for first degree murder on three grounds: the admission of drop cloths and a shovel as evidence of planning and deliberation, the use of evidence regarding a gun from a prior home invasion, and the admission of evidence found in his vehicle despite an error in the search warrant.

The Court of Appeal dismissed the appeal.

The court found that the physical evidence had sufficient probative value, the gun evidence was properly admitted for motive and identity with appropriate limiting instructions, and the search warrant error was a minor technical breach that did not warrant exclusion of the evidence under the Charter.

The appellants appealed a declaration that the respondent's claims were not released by bankruptcy due to defalcation under s. 178(1)(b) of the Bankruptcy and Insolvency Act.

The Court of Appeal dismissed the appeal, finding that the appellants' failure to invest funds as agreed, failure to recover them, and failure to account for them amounted to serious misconduct and moral turpitude within a fiduciary relationship, satisfying the test for defalcation.

The appellant appealed a trial judgment regarding spousal status, arguing the trial judge placed undue emphasis on the parties' subjective intentions rather than objective evidence.

The Court of Appeal dismissed the appeal, finding the trial judge applied the correct legal test from Moldowich v. Penttinen, properly considered the objective evidence, and made findings of fact supported by the record.

The appellant appealed his conviction and sentence for break and enter, uttering a threat, and possession of a weapon.

He argued that the identification evidence was unreliable and that he was prejudiced by the loss of the weapon (a nightstick) before trial.

The Court of Appeal dismissed the conviction appeal, finding the identification evidence supported by the appellant's own statement and circumstantial evidence, and no prejudice from the missing weapon.

The sentence appeal was also dismissed, as the four-year term for a home invasion to collect a drug debt was within the appropriate range.

The insurer appealed a judgment for the insured in an action for benefits under a sickness and accident policy.

The trial judge instructed the jury that because the insurer had accepted the claim and made some payments, it bore the legal burden of proof to establish that the insured was not totally disabled.

The Court of Appeal found this instruction to be an error, holding that the insured bore the legal burden of proof.

However, the appeal was dismissed as the misdirection did not result in any substantial wrong or miscarriage of justice.

The appellant appealed a trial judgment, arguing that Rule 37.15 precluded the trial judge from dealing with motions at the opening of trial and seeking to introduce fresh evidence.

The Court of Appeal dismissed the appeal, finding that Rule 37.15 does not prevent a trial judge from dealing with motions at the opening of trial.

The court also rejected the fresh evidence, noting the appellant failed to exercise due diligence by withdrawing from the trial and that the evidence would not have changed the result.

The respondents obtained an Anton Piller order and subsequent orders requiring the appellant to allow access to his premises to re-image computer hard drives.

The motion judge found the appellant in contempt for failing to comply with these orders and struck his statements of defence for failing to pay costs.

The Court of Appeal allowed the appeal, finding that the motion judge failed to properly apply the three-pronged test for civil contempt, including the requirement for clear and unequivocal orders and proof beyond a reasonable doubt.

The Court also set aside the order striking the defences, holding that the motion judge improperly reversed the onus and failed to give the appellant an opportunity to cure his default.

The appellant appealed his conviction, arguing the trial judge erred in relying on the demeanour of three Crown witnesses to infer he was the perpetrator.

The trial judge had concluded the witnesses were in terrible fear of the appellant and therefore unwilling to identify him.

The Court of Appeal held this was an error, as the trial judge could not infer positive identification from the witnesses' failure to identify the appellant.

The appeal was allowed and a new trial ordered.

Media organizations appealed orders upholding a mandatory publication ban imposed under s. 517 of the Criminal Code during terrorism-related bail proceedings and interpreting the ban to apply to all jointly charged accused when requested by one accused.

The Court of Appeal held the appeal should be heard despite mootness because the issue was recurring, evasive of review, and remained adversarial.

A majority held that the mandatory ban infringed s. 2(b) of the Charter and was justified under s. 1 only where the charges may be tried by a jury; the provision was therefore read down to that extent.

The interpretation ruling applying the ban to all jointly charged accused was upheld, and no costs were awarded.

The appellant appealed his conviction for refusing a breath demand.

He argued he mistakenly believed the demand was for an approved instrument and that he did not have to comply because he had not been informed of his right to counsel.

The Court of Appeal upheld the summary conviction appeal judge's decision, finding that a violation of section 10(b) of the Charter is not a reasonable excuse to refuse an approved instrument demand, though it may result in exclusion of evidence under section 24(2).

The appeal was dismissed.

The respondent was seriously injured when his motorcycle struck a freight train at a rural railway crossing at night.

The crossing had only a passive warning system.

The trial judge found the appellant railway company 75% negligent for failing to conduct nighttime inspections and failing to implement additional safety measures, and the respondent 25% contributorily negligent due to excessive speed and impairment.

The Court of Appeal dismissed the railway company's appeal, upholding the trial judge's findings on standard of care, causation, and contributory negligence.

The appellant appealed his conviction for sexual exploitation arising from allegations by a child family member, arguing that the trial judge conflated credibility with reliability, misapprehended material parts of the defence evidence, and applied unequal scrutiny to the evidence of the complainant and the accused.

The Court of Appeal held that the trial judge expressly considered both credibility and reliability, properly applied the criminal burden of proof, and was entitled to assess the child's evidence in light of her age.

The court further held that no material misapprehension tainted the rejection of the appellant's denial and that the trial judge did not impose a harsher standard on the defence evidence.

The appeal was dismissed.

The appellant appealed a trial judge's valuation of a business and treatment of a debt in a family law proceeding.

The Court of Appeal dismissed the appeal, finding that the trial judge did the best he could given the appellant's inadequate financial disclosure and that the findings of fact regarding the business value and post-separation debt were open to him.

The appellant was stopped for stunt driving and his vehicle was impounded under the Highway Traffic Act.

During an inventory search of the vehicle, police opened a bag and found cocaine and marijuana.

The appellant appealed his drug convictions, arguing the search violated his s. 8 Charter rights because inventory searches should be limited to itemizing visible property.

The Court of Appeal dismissed the appeal, holding that police are entitled to search and itemize the contents of bags and containers during an inventory search to properly safeguard the property.

The appellant appealed the dismissal of his claims for malicious prosecution and negligent investigation against the police and the Crown.

The trial judge found that the police had reasonable and probable grounds to lay charges related to an illegal firearms transaction, despite minor discrepancies in descriptions and a late-disclosed alibi.

The Court of Appeal upheld the trial judge's findings, noting that the discrepancies were matters for a trier of fact and did not undermine the existence of reasonable and probable grounds.

The appeal was dismissed with costs.

The appellant appealed an order regarding the interpretation of a settlement agreement term stating a mortgage 'will be held in escrow'.

The Court of Appeal upheld the application judge's finding that the parties intended the mortgage would not be effective and would not create an interest in land unless and until there was a default.

As no default occurred, the bank had nothing to assign to the appellant.

The appeal was dismissed with costs.

The appellants appealed a trial judgment dismissing their claim of negligent design.

The trial judge found that it was not reasonably foreseeable that a 'lazy line' would come into contact with a loop and cut through it.

The Court of Appeal upheld this finding, noting that the trial judge properly recognized manufacturers are not insurers and avoided applying hindsight.

The appeal was dismissed with costs of $12,500 awarded to the respondents.

The Crown appealed the sentence imposed on the respondent for sexual offences involving three young victims.

The Court of Appeal found that a penitentiary sentence was required due to numerous aggravating factors, including the respondent's position of trust, the young age of the victims, the frequency of the offences, and the devastating impact on the victims.

The Court also noted the respondent's lack of insight and speculative prospects for rehabilitation.

The appeal was allowed, and the sentence was increased to four-and-a-half years' imprisonment.

The appellants appealed a trial judgment finding they breached a consulting agreement by playing both ends against the middle and preventing Royal Trust from advancing funds.

The Court of Appeal dismissed the appeal, holding that the trial judge's findings were supported by the pleadings and evidence, and the appellants could not rely on the failure to advance funds when they were instrumental in bringing about that result.

The appellant sought leave to appeal a summary conviction appeal decision that dismissed an appeal of a conviction.

The appellant argued ineffective assistance of trial counsel.

The Court of Appeal refused leave to appeal, finding that the appeal judge's conclusion—that the result would have been the same even with effective assistance—was a finding of fact or mixed fact and law, and therefore did not raise a question of law alone.