Marc Rosenberg

In a Reference directed by the Minister of Justice under s. 696.3(3)(a)(ii) of the Criminal Code regarding the 1959 murder conviction of Steven Murray Truscott, the parties sought directions on the scope of the issues.

The Court of Appeal ruled that the Reference is limited to the issue of fresh evidence, which means material not presented in prior court proceedings (including the 1966 Supreme Court Reference).

The Court further held that the Kaufman Report does not limit the evidence the parties can tender, and that transcripts from the Kaufman investigation are part of the record but must satisfy hearsay exceptions to be admitted for their truth.

Following an appeal where the appellant achieved partial success against multiple respondents, the Court of Appeal determined the appropriate costs awards.

Recognizing the divided success at both the motions and appellate levels, the court ordered the appellant to pay costs for the motions below, while ordering certain respondents to pay costs for the appeal.

The court accounted for the multiplicity of counsel and the novelty of the appellant's arguments in fixing the amounts.

The appellant appealed an order recognizing and implementing a U.K. court order that authorized a meeting of creditors for a scheme of arrangement.

The Court of Appeal held that the motion judge erred in relying on the Reciprocal Enforcement of Judgments (U.K.) Act, as the U.K. order was not a final judgment for the payment of money and the appellant was not served with the originating process.

However, the Court upheld the recognition order based on the common law rules of private international law, finding that the lack of finality was not a bar to recognition and that the real and substantial connection test was met.

The appellant was convicted of second degree murder after shooting the deceased during a confrontation.

The appellant claimed the gun discharged accidentally while he was using it to ward off the deceased in self-defence.

On appeal, the appellant argued the trial judge erred in instructing the jury on the relationship between self-defence and accident.

The Court of Appeal found that while the trial judge made errors that would have affected a manslaughter verdict, the jury's conviction for murder meant they must have found the appellant had the requisite intent to kill, rejecting the accidental discharge defence.

Applying the curative proviso, the court concluded the errors did not result in a substantial wrong or miscarriage of justice and dismissed the appeal.

The corporate defendant appealed its convictions under the Occupational Health and Safety Act, arguing it was not the 'employer' of a common carrier's driver who was injured on its site.

The Crown appealed the provincial offences appeal judge's decision to remit the defendant's s. 11(b) Charter delay motion for a rehearing.

The Court of Appeal dismissed the defendant's appeal, finding it was an employer because it controlled the workplace.

The Court allowed the Crown's appeal, holding that a corporate defendant cannot rely on presumed prejudice for s. 11(b) delay and must show actual prejudice to its fair trial rights, which it failed to do.

The appellant appealed his convictions for second degree murder and attempted murder, as well as his 15-year parole ineligibility period.

He argued the trial judge failed to provide a special instruction regarding identification evidence from neighbours who had picked out photos of other persons.

The Court of Appeal dismissed the conviction appeal, finding the standard instructions were adequate and noting no objection was made at trial.

The sentence appeal was also dismissed, as the 15-year parole ineligibility period was within the appropriate range given the brutal nature of the attack, the home invasion, and the finding that the appellant killed the deceased to eliminate a witness.

The mother appealed a trial judgment granting custody of the children to the father.

The trial judge found that the mother engaged in persistent alienating conduct, including moving the children to a different town on the eve of trial, and was unable to support a relationship between the children and their father.

The Court of Appeal dismissed the appeal, finding no error of law and concluding that the trial judge's decision was supported by expert evidence and the mother's deep-rooted inability to foster the children's relationship with the father.

The appellants appealed an order allowing a receiver to sell a property free of their leases.

The receiver conceded that the motion judge's statement of the law was overly broad and that equitable considerations should have been weighed.

The Court of Appeal allowed the appeal, set aside the order, and remitted the matter back to the Superior Court of Justice, noting the appellants were not given a proper opportunity to lead evidence on the equities.

The Court of Appeal allowed the appeal, set aside the order of Justice Ground, and remitted the matter to the Superior Court of Justice.

The decision was based on the reasons provided in the companion endorsement in Court File C44279.

Costs were fixed at $4,000 inclusive of G.S.T. and disbursements.

The appellant appealed his convictions for possession of marijuana, breach of recognizance, and obstructing a police officer.

The court previously dismissed the appeals for possession and breach of recognizance.

On the obstructing charge, duty counsel raised the issue of the adequacy of the trial judge's reasons.

The Crown conceded that the trial judge failed to consider a possible defence and provided inadequate reasons.

The Court of Appeal agreed, allowed the appeal on the obstructing charge, and ordered a new trial.

The appellants appealed an order regarding their right to renew a mortgage.

The Court of Appeal dismissed the appeal, agreeing with the motion judge that not being in default was a condition precedent to the privilege to renew.

As the mortgage was and remained in default, the appellants could not renew it.

The appellant appealed his convictions for producing marijuana and possession for the purpose of trafficking, arguing that the search warrant for his residence was invalid because it relied on an anonymous tip that only expressed a suspicion of criminal activity.

The Court of Appeal dismissed the conviction appeal, finding that while the tip itself was not compelling, the police officer's independent observations of heavy blinds, condensation, and a vent provided sufficient grounds for the warrant.

However, the Court allowed the sentence appeal based on fresh psychiatric evidence showing the appellant's severe depression and fragility.

The six-month custodial sentence was varied to an 18-month conditional sentence.

The respondent was convicted at trial of prowling at night after being found hiding in a residential backyard.

The summary conviction appeal judge quashed the conviction, holding that the Crown must prove the respondent intended to commit a specific evil act.

The Court of Appeal allowed the Crown's appeal and restored the conviction, clarifying that section 177 of the Criminal Code only requires proof of intentional prowling (stealthy traversing) without lawful excuse, and does not require proof of an underlying intent to commit a further specific offence.

The appellant was convicted of second degree murder after fatally stabbing the deceased during an attempted robbery.

He appealed, arguing the trial judge erred in failing to define 'accident', failing to leave unlawful act manslaughter to the jury, and misdirecting the jury on the intent for murder under s. 229(a)(ii) of the Criminal Code.

The Court of Appeal dismissed the appeal, finding that the jury charge was adequate, the failure to leave unlawful act manslaughter caused no prejudice as the jury was given a favourable alternative route to manslaughter, and the verdict was not unreasonable given the evidence.

The appellant, former Commissioner of the Canadian Football League, appealed an order striking out his statement of claim against the CFL, its member clubs, and various individuals.

The claim alleged breach of confidence, negligent misrepresentation, breach of contract, defamation, injurious falsehood, and interference with contractual relations arising from his hiring and subsequent dismissal.

The Court of Appeal allowed the appeal in part, finding that while the statement of claim was prolix and contained evidence rather than material facts, certain causes of action for negligent misrepresentation, breach of contract, and defamation were viable.

The Court struck the entire pleading but granted the appellant leave to deliver a fresh amended statement of claim for the surviving causes of action.

The appellant husband appealed a trial judgment regarding the division of the parties' home, specifically challenging the trial judge's approach to occupation rent and post-separation credits.

The Court of Appeal upheld the trial judge's holistic approach, noting that while the respondent wife received 100% credit for occupation rent, the appellant received 100% credit for taxes, insurance, and mortgage principal payments.

The court also declined to admit fresh evidence that could have been introduced at trial.

However, the court varied the judgment to $41,516.20 based on a conceded calculation error.

The appeal was otherwise dismissed with costs to the respondent.

The Crown appealed an order granting the respondent an exemption from a firearm prohibition under s. 113(1)(a) of the Criminal Code.

The respondent, who ran a pest control business, claimed he needed the firearm to protect his livestock from predators.

The Court of Appeal allowed the appeal and set aside the exemption, finding that the respondent did not solely or predominantly depend on the firearm to sustain himself or his family.

The appellant appealed a trial judgment regarding spousal support.

The respondent did not appear.

The Court of Appeal found ambiguity in the trial judge's reasons but concluded the intent was to award $1,000 per month in spousal support.

The appeal was allowed, and the order was amended to clarify the support amount, inclusive of direct pension payments, with costs awarded to the appellant.

The appellants appealed an order of the motion judge regarding the validity of an assignment of an action by a bankruptcy trustee.

The Court of Appeal found that the motion judge misapprehended a critical fact, as the action was assigned by the trustee before its discharge in accordance with s. 40(1) of the Bankruptcy and Insolvency Act, not after.

The creditors had been informed and declined to fund the action.

The appeal was allowed and paragraph 21(i) of the Statement of Claim was reinstated.

The Ontario Society for the Prevention of Cruelty to Animals brought a motion to quash an appeal by the appellant from a Superior Court decision under the Ontario Society for the Prevention of Cruelty to Animals Act.

The Society argued that because the Act states the judge's decision is 'final', no further appeal lies and the appellant must proceed by judicial review.

The Court of Appeal dismissed the motion, holding that the word 'final' does not oust the appellate jurisdiction conferred by the Courts of Justice Act, and the decision is appealable as a final order of a Superior Court judge.