Marc Rosenberg

The appellant appealed his sentence of 27 months' imprisonment and probation for possession of drugs for the purpose of trafficking.

The Court of Appeal found the sentence was out of the range given the circumstances of the offence, though a substantial jail sentence was required due to the appellant's record and the fact he was on probation.

The appeal was allowed, the sentence was reduced to 18 months' imprisonment, and the probation order was set aside.

The Crown appealed the sentence imposed on the respondent, arguing that the trial judge erred in failing to impose house arrest as a term of the conditional sentence order.

The Court of Appeal upheld the conditional sentence but varied the order to include house arrest, noting that the respondent's counsel conceded the error.

The appellant appealed his conviction for assault causing bodily harm, arguing the verdict was unreasonable and that the summary conviction appeal court erred in failing to so find.

The appeal centered on the trial judge's rejection of the appellant's explanation for moving a bed, which the trial judge found was belied by videotape evidence.

The Court of Appeal reviewed the photographic copy of the videotape and concluded it was open to a reasonable trier of fact to reach the trial judge's conclusion.

The appeal was dismissed.

The appellant appealed his sentence for fraud and possession of stolen property.

The Court of Appeal found that the trial judge erred in principle by rejecting uncontradicted information in the pre-sentence report based on its sources.

Considering fresh evidence, including reasons from the Immigration and Refugee Board confirming the appellant's good prospects for rehabilitation, the Court allowed the appeal and replaced the remaining sentence with a 10-month conditional sentence.

The appellant appealed his sentence, arguing against the length of the probationary period.

The trial judge had imposed a lesser custodial term than the three years suggested in a joint submission, but included a three-year probationary period.

The Court of Appeal found no error in the custodial term and held that the probationary period, while high, was not unreasonable given the facts of the offence.

The sentence appeal was dismissed.

The appellants, physicians found liable for medical malpractice for failing to diagnose the respondent's acromegaly, appealed the trial judge's awards for future income loss, future medication costs, and a $150,000 costs premium.

The Court of Appeal dismissed the appeal regarding damages, finding the trial judge reasonably relied on lay evidence and medical reports to establish future income loss, and correctly held the tortfeasors responsible for medication costs despite government program coverage.

The respondent's cross-appeal to apply the Rule 53.09 discount rate to future medication costs was allowed.

The Court also reduced the costs premium to $75,000, finding the trial judge erred by penalizing the appellants for their insurer's settlement policy, though a premium was still justified by the risk assumed and result achieved by the respondent's counsel.

The applicant sought to set aside a 2002 dismissal order and reinstate his appeal of a dangerous offender finding.

The Court of Appeal accepted that the applicant consistently maintained an intent to appeal and bore no fault for the dismissal.

However, the court dismissed the application because the applicant failed to demonstrate any underlying merit to the appeal, noting that expert evidence showed the serious risk he poses to re-offend could not be managed by community supervision.

The appellant appealed the dismissal of his application to quash an order that he stand trial on offences under the Excise Tax Act.

He argued that the joint representation of himself and his co-accused wife by the same counsel at the preliminary inquiry created a conflict of interest that breached the principles of natural justice.

The Court of Appeal dismissed the appeal, finding that the appellant failed to demonstrate an actual conflict of interest at the preliminary inquiry stage or that his counsel's representation was compromised in a way that deprived him of a fair hearing.

The young person appealed a conviction for an offence involving the issue of consent.

The Court of Appeal allowed the appeal, finding that the trial judge failed to resolve significant inconsistencies in the evidence regarding how the complainant met the appellant.

Furthermore, the trial judge erred by merely stating a preference for the complainant's evidence without properly applying the burden of proof beyond a reasonable doubt as required by W.(D.).

The conviction was set aside and a new trial ordered.

The appellant appealed his conviction, arguing the trial judge erred by failing to consider self-defence and by failing to apply the middle ground of the W.(D.) framework.

The Court of Appeal dismissed the appeal, finding no air of reality to the self-defence claim and concluding that the trial judge's reasons, read as a whole, properly applied the W.(D.) principles in rejecting the accused's evidence and finding it did not raise a reasonable doubt.

The sentence appeal was abandoned as the custodial portion had been served.

The appellant appealed his conviction, arguing that the trial judge's handling of a difficult situation would have led the jury to conclude his lawyer no longer believed in him.

The Court of Appeal dismissed the appeal, finding that the trial judge handled the situation appropriately with a firm and fair instruction to the jury.

The court rejected the appellant's submission as speculative and contrary to the presumption that jurors follow a trial judge's directions.

The appellant appealed his conviction, arguing that the trial judge's comments on the performance of witnesses demonstrated a reasonable apprehension of bias.

The Court of Appeal dismissed the appeal, agreeing with the summary conviction appeal judge that while the comments were ill-advised and could cause concern if taken out of context, they did not demonstrate a reasonable apprehension of bias.

The appellant appealed his committal for extradition to the United States on charges of conspiracy to distribute MDMA, and sought judicial review of the Minister's surrender order.

The Court of Appeal dismissed the appeal from the committal order, finding the Authority to Proceed sufficiently particularized the conspiracy.

On the judicial review, the Court rejected arguments regarding jurisdiction, disclosure, and adequacy of reasons.

However, based on fresh evidence that the main prosecution witness had been returned to Canada and was on parole, the Court adjourned the judicial review application to allow the appellant to request the Minister to amend the surrender order.

The Ontario Securities Commission found the respondent guilty of insider trading and imposed a 15-year suspension of his registration, along with a costs award of $186,052.30.

The Divisional Court upheld the liability finding but reduced the suspension to four years and remitted the costs award with specific procedural instructions.

The Court of Appeal allowed the Commission's appeal, restoring the 15-year suspension on the basis that the Commission's decision was reasonable and entitled to deference.

The Court of Appeal also remitted the costs issue to the Commission, but without the Divisional Court's specific procedural instructions, requiring only that the process be fair.

The deceased's estate brought a medical malpractice action against the appellant doctor for failing to diagnose and treat bladder cancer.

The action was commenced beyond the two-year limitation period in s. 38(3) of the Trustee Act.

The estate pleaded that the doctor fraudulently concealed his negligence by lying to the family about having recommended radical treatment.

The doctor moved to strike the claim as statute-barred.

The Court of Appeal upheld the motion judge's decision dismissing the motion, finding that the common law doctrine of fraudulent concealment can toll the limitation period in s. 38(3) of the Trustee Act, and that the facts as pleaded were capable of supporting a finding of fraudulent concealment.

The appellant was convicted of possession of cocaine for the purpose of trafficking and possession of proceeds of crime after police stopped his vehicle and searched him.

The police suspected the appellant was involved in drug trafficking after observing his interactions with a suspected prostitute.

During the stop, an officer touched the appellant's groin area, leading to the discovery of cocaine and cash.

The Court of Appeal found that while the initial stop was justified, the search violated the appellant's s. 8 Charter rights as it was not conducted for officer safety.

The Court concluded that the trial judge erred in admitting the evidence under s. 24(2), as the breach was serious and its admission would bring the administration of justice into disrepute.

The appeal was allowed and acquittals were entered.

Following a successful Crown appeal against directed verdicts of acquittal for first and second-degree murder, the Court of Appeal considered whether to set aside the respondents' convictions for forcible confinement.

Although the respondents had not cross-appealed, the Court invoked s. 686(8) of the Criminal Code to set aside the forcible confinement convictions.

The Court reasoned that the forcible confinement charge was inextricably bound to the first-degree murder charge under s. 231(5)(e), and allowing the convictions to stand would impair the respondents' fair trial rights at the new trial.

The appellant appealed convictions on multiple sexual offences alleged to have been committed against the complainant between ages 10 and 15 in a context of spiritual manipulation and control.

The appeal focused on whether the trial judge erred in his credibility analysis by relying on demeanour evidence, prior consistent statements, and by applying uneven scrutiny or reversing the burden of proof.

The court held that, although parts of the reasons contained errors or unfortunate phrasing, the trial judge properly applied the governing credibility instruction and the errors did not affect the correctness of the verdict.

The appeal was dismissed.

The appellants purchased 1700 acres of land and sought a declaration under the Road Access Act or a prescriptive easement to use two roads on the respondent's adjacent 40-acre property.

The trial judge dismissed the claims, finding alternate access existed and the appellants failed to prove continuous use for a prescriptive easement.

On appeal, the appellants argued the trial judge erred in assessing alternate legal access and failing to apply the doctrine of lost modern grant.

The Court of Appeal dismissed the appeal, holding that alternate access over private property can constitute legal access and that the appellants failed to establish the necessary continuous, uninterrupted, open, and peaceful use to raise a presumption of lost modern grant.

The appellant appealed a decision granting an application for partition and sale of commercial properties under the Partition Act.

The appellant argued that the scope of discretion to refuse partition and sale should be broadened beyond circumstances of malice, oppression, and vexatious intent.

The Court of Appeal dismissed the appeal, affirming that co-tenants have a prima facie right to compel partition or sale, which should only be refused in limited circumstances including hardship amounting to oppression.

The court found no palpable and overriding error in the motion judge's exercise of discretion.