Marc Rosenberg

The appellant appealed convictions for multiple sexual assaults committed against boys in his foster care and appealed a global ten-year penitentiary sentence.

The court upheld the admission of each complainant’s evidence as similar fact evidence, finding a high degree of connectedness arising from exploitation of vulnerable boys under the appellant’s care and no material risk of misuse by the jury given the charge as delivered.

The court also rejected challenges to the jury instructions on similar fact evidence, good character evidence, and delayed reporting.

However, the sentence appeal was allowed because the sentencing judge placed the case in too high a range when compared with the governing authority, given the absence of physical violence, threats, or extortion and the presence of substantial mitigating factors.

The global sentence was reduced from ten years to seven and a half years.

The appellant was convicted of first degree murder of a former drug associate.

On appeal, he raised nine grounds of error, including the trial judge's instructions on the failure to call witnesses, the Crown's cross-examination on the failure to cross-examine Crown witnesses, the use of disclosure to tailor evidence, the right to silence, the admission of his criminal record, the voluntariness of statements, informer privilege, the trial judge's interventions, and the jury charge on alternative verdicts.

The Court of Appeal dismissed the appeal.

While the trial judge erred in attributing an alternative defence of manslaughter to the appellant, the Court applied the curative proviso under s. 686(1)(b)(iii) of the Criminal Code, finding that the circumstantial evidence of guilt was overwhelming and the error occasioned no substantial wrong or miscarriage of justice.

The appellant appealed his convictions for robbery, assault with a weapon, and related offences arising from an attack at an ATM.

The Crown's case relied heavily on eyewitness identification by the victim, who identified the appellant outside the courtroom at the preliminary inquiry.

The Court of Appeal allowed the appeal and ordered a new trial, finding that the trial judge failed to adequately caution the jury about the highly problematic nature of the out-of-court identification.

Furthermore, the trial judge erred by refusing to allow defence counsel to cross-examine the victim about a conversation he had with his father during a break in his cross-examination.

The appellant general contractor appealed a trial judgment awarding the respondent electrical subcontractor $45,000 for loss of profits due to breach of contract.

The appellant had carried the respondent's bid in its tender but later refused to use the respondent, demanding 100% performance bonds which the respondent could not obtain.

The Court of Appeal dismissed the appeal, upholding the trial judge's findings that the appellant failed to establish a reasonable objection to contracting with the respondent and was not entitled to demand 100% bonding when the prime contract only required 50%.

The appellant mortgaged several properties to Royal Trust.

Following default, Royal Trust sold the properties under power of sale and sued for the deficiency.

The appellant counterclaimed, alleging the sales were improvident and Royal Trust acted in bad faith.

The trial judge awarded judgment to Royal Trust for a portion of the deficiency and dismissed the counterclaim.

On appeal, the appellant argued the trial judge erred in his findings on improvident sale, bad faith, and costs.

The Court of Appeal dismissed the appeal, finding no error in the trial judge's reliance on valuation evidence, his rejection of the bad faith claims, or his exercise of discretion regarding costs.

The Crown appealed the disposition of a conditional discharge imposed on a young person.

The Court of Appeal noted it did not agree with all of the trial judge's reasons or disposition, but refused leave to appeal the sentence because a year had passed and the young person had complied with all terms of the conditional discharge.

The appellants were injured in a motor vehicle accident and sought statutory accident benefits.

The insurer required them to undergo a Designated Assessment Centre (DAC) assessment, which concluded the requested treatments were not reasonable or necessary.

The appellants sued the DAC and its assessors for negligence and bad faith.

The motion judge struck the claims, finding no duty of care and applying witness immunity.

The Court of Appeal allowed the appeal in part, holding that while policy considerations preclude a claim for simple negligence against DAC assessors, it is not plain and obvious that claims based on bad faith or breach of a duty of neutrality should be struck, nor does witness immunity necessarily apply to their role as decision-makers.

The appellant sought leave to appeal his conviction for dangerous driving, arguing the verdict was unreasonable.

The Court of Appeal found no error of law, holding that the trial judge was entitled to accept the complainant's evidence regarding how the appellant's vehicle contacted him.

Leave to appeal was refused.

The appellant appealed his sentence for a vast conspiracy to traffic cocaine and launder money, committed while on bail pending appeal for another drug trafficking offence.

The Court of Appeal found the sentence was at the high end of the range but not manifestly excessive.

The trial judge's findings of fact were consistent with the jury's verdict, and she did not err in refusing enhanced pre-sentence credit beyond 2:1.

The appeal was dismissed.

The appellant appealed his custodial sentence for an impaired driving offence that resulted in a collision with a motorcyclist whose leg was amputated.

The appellant had a very high blood alcohol level, was driving without insurance, and breached a zero-alcohol licence condition.

The Court of Appeal dismissed the appeal, finding that the trial judge properly concluded that general deterrence required a custodial sentence rather than a conditional sentence.

The Crown appealed an order quashing the accused's committal for trial.

The preliminary inquiry judge had misapprehended the evidence regarding the cause of death.

The reviewing judge found that the pathologist's evidence supported a non-culpable explanation for the death and that other causes were mere speculation.

Furthermore, there was no evidence that the fire was deliberately set, nor any evidence of motive, animus, or an altercation.

The Court of Appeal agreed with the reviewing judge that the circumstantial evidence amounted to no more than speculation and suspicion, and dismissed the appeal.

The appellant appealed his conviction for impaired driving.

The Court of Appeal found that the trial judge erred in law by failing to address or reconcile contradictions in the arresting officer's testimony concerning the appellant's manner of speech and movements, which formed the basis for the conviction.

The appeal was allowed, the conviction set aside, and a new trial ordered.

The appellant appealed the sentence imposed by the trial judge, arguing that the trial judge erred in departing from a joint submission.

The Crown conceded that the joint submission would not bring the administration of justice into disrepute and was not contrary to the public interest.

The Court of Appeal allowed the appeal, finding the trial judge erred in principle by departing from the joint submission without explaining why it was contrary to the public interest and failing to consider the appellant's minor role.

The sentence was reduced to a 13-month conditional sentence.

The appellant operated a website containing audiovisual material and written stories depicting violence against women.

He was convicted of making, possessing, and distributing obscene material.

On appeal, the Court of Appeal found the trial judge erred in instructing the jury that adult nudity alone could amount to explicit sex for the purposes of obscenity.

The court ordered a new trial for the audiovisual counts but upheld the conviction for the written stories, which clearly depicted explicit sex and violence.

The sentence was varied to a $2,000 fine.

The Court of Appeal released a costs endorsement following an appeal.

The court agreed with the appellant that costs should be fixed and ordered the respondent to pay the appellant $15,000 inclusive of disbursements and GST.

Costs of the underlying application were reserved to the trial judge.

The appellant pharmaceutical company sued the respondents for defamation arising from radio and internet broadcasts, as well as statements made in the House of Commons.

The appellant failed to serve a notice of defamation prior to commencing the action, as required by s. 5(1) of the Libel and Slander Act.

The Court of Appeal upheld the striking of the defamation claims, confirming that the notice requirement applies to non-media defendants and that failure to provide notice is an absolute bar to the action.

The Court also upheld the striking of claims based on statements made in Parliament due to absolute parliamentary privilege.

The Crown appealed the sentence imposed on the respondent, arguing it was wholly inadequate.

At the sentencing hearing, there were critical factual disputes regarding the respondent's intoxication and whether she acted in self-defence, but neither counsel requested a Gardiner hearing to resolve them.

The trial judge accepted the respondent's version of events, including that her capacity was seriously compromised and she acted in self-defence using excessive force.

The Court of Appeal held that in these highly unusual circumstances, the sentence, while at the extreme low end of the range, was not wholly inadequate and did not reflect an error in principle.

The appeal was dismissed.

The appellant appealed his conviction and sentence, arguing the trial judge erred in assessing the credibility of the complainant and the appellant.

The Court of Appeal found that the trial judge reasonably concluded the complainant's evidence was confirmed by another witness in critical respects, and that variations in testimony were collateral or explained by intoxication.

The court also found no error in the trial judge's treatment of a serious inconsistency in the appellant's evidence.

The appeal from conviction was dismissed, and the appeal from sentence was dismissed as abandoned.

The appellant appealed his conviction for first degree murder, arguing that the trial judge's Vetrovec warning regarding the Crown's principal witness was inadequate.

The witness, who had a criminal record and received conditional immunity, testified that the appellant shot the deceased.

The Court of Appeal found that the trial judge's instructions properly identified the witness as requiring special scrutiny, highlighted the characteristics bringing his evidence into question, cautioned the jury about relying on his unconfirmed evidence, and appropriately addressed confirmatory evidence.

The appeal was dismissed.

The appellant appealed a disposition of the Ontario Review Board ordering his continued detention at a mental health centre.

The Board found he continued to pose a significant threat to public safety due to a substance abuse problem that rendered him aggressive and violent.

The Court of Appeal found no errors of law and held the Board's decision was reasonable.

The appellant's application to adduce fresh evidence was dismissed, as the evidence pertained to his pending annual review and did not show the Board erred in its original decision.

The appeal was dismissed.