Marc Rosenberg

The appellant police services board appealed a Divisional Court decision finding that its officers unlawfully entered the respondent's home and unlawfully arrested him.

The officers entered the respondent's apartment without a warrant or consent to arrest him for failing to remain at the scene of an accident.

The Court of Appeal held that the officers were not protected from civil liability for trespass and false arrest by section 25 of the Criminal Code or the common law, as they lacked legal authorization to enter the dwelling following the Supreme Court's decision in Feeney.

The appeal was dismissed.

The appellant police services board appealed a judgment imposing civil liability for an allegedly unlawful warrantless arrest arising from a neighbourhood assault complaint.

The court held that the lower courts erred by treating non-compliance with s. 495(2) of the Criminal Code as sufficient to establish arbitrary detention under s. 9 of the Charter.

Applying prior authority, the court found the arresting officer had reasonable and probable grounds, acted in the public interest context of escalating neighbour conflict, and did not act capriciously, despotically, or unjustifiably.

The appeal was allowed, liability for the first arrest was set aside, and damages were reduced from $6,000 to $3,000 to reflect the uncontested second arrest.

The appellant's conviction for attempted murder was previously substituted with a conviction for aggravated assault by the Court of Appeal.

The court received written submissions on sentencing.

The Crown sought to uphold the original three-year penitentiary term, while the appellant sought a conditional sentence of 12 to 18 months.

The court rejected the conditional sentence, emphasizing denunciation and general deterrence given the deliberate nature of the vehicular assault and the severe injuries caused.

The court imposed a sentence of 20 months' imprisonment, factoring in a two-for-one credit for two months of pre-sentence custody.

The United States sought the extradition of the appellant for attempted murder and other offences.

The appellant appealed the committal order, arguing that the evidentiary provisions of the Extradition Act (ss. 32, 33, 34) violate section 7 of the Charter by allowing the admission of unreliable, unsworn evidence, such as hearsay.

The Court of Appeal dismissed the appeal, holding that the principles of fundamental justice in the extradition context must respect the differences in foreign legal systems.

The court found that the impugned provisions do not violate the Charter and that the extradition judge is not required to assess the reliability of the evidence tendered by the requesting state.

The appellant appealed his conviction for second degree murder.

He argued the trial judge erred by not leaving manslaughter or provocation with the jury, that the Crown improperly elicited prior out-of-court statements to rebut recent fabrication, and that the Crown improperly cross-examined him on the rule in Browne v. Dunn.

He also sought to adduce fresh evidence regarding a forged arrest warrant.

The Court of Appeal dismissed the appeal, finding no evidence to support provocation, that the prior statements were admissible, that any prejudice from cross-examination was cured by instructions, and that the fresh evidence was collateral.

The appellant was convicted of impaired driving causing death and sentenced to four years in prison.

He appealed his conviction, arguing that the search warrant used to seize his blood sample from the hospital was invalid due to the police officer's failure to disclose a prior warrant refusal.

He also argued the trial judge erred by refusing to compel the prosecuting attorney to testify on the voir dire.

The Court of Appeal dismissed the appeal, finding that the non-disclosure did not invalidate the warrant because the second information was substantially different and the omission was not intended to mislead.

The court also upheld the trial judge's refusal to compel the prosecutor to testify and agreed that the blood sample was non-conscriptive evidence that should not be excluded under section 24(2) of the Charter.

The appellant supplied floor and wall coverings to the respondent, a retail store, without knowing or inquiring about the specific improvements where the materials would be used.

When the respondent became insolvent, the appellant claimed that the moneys received by the respondent from its customers were trust funds under section 8(1) of the Construction Lien Act, and sought to hold the respondent's principals personally liable for breach of trust.

The Court of Appeal, sitting as the Divisional Court, dismissed the appeal, holding that a trust under the Act only arises if the supplier intends the materials to be used for a known and identified improvement.

The insured was seriously injured in a motorcycle accident in Florida.

Her travel insurer paid her medical expenses and sought to assert a subrogated claim against the insurer of the at-fault driver.

The application judge held that the travel insurer had no right of subrogation because its policy had to conform to the Ontario Insurance Act, which bars subrogation for health care expenses.

On appeal, the Court of Appeal affirmed the decision, holding that Ontario contract law, not Florida tort law, governed the subrogation right.

The Court also applied the Fraser River principled exception to privity of contract, allowing the at-fault driver's insurer to benefit from the statutory waiver of subrogation.

The appellant sought solicitor-and-client costs pursuant to Rule 49.10 based on an offer to settle.

The respondent argued the offer was ambiguous regarding costs and incapable of acceptance, and that the appellant failed to obtain the relief sought.

The Court of Appeal applied recent jurisprudence holding that uncertainty in an offer is only relevant to whether the party met its burden of proof under Rule 49.10.

The court found the appellant met its burden and awarded party-and-party costs to the date of the offer and solicitor-and-client costs thereafter.

The appellant appealed his dangerous offender designation and indeterminate sentence, arguing the trial judge erred in admitting evidence of an escape plot and relying on it for psychiatric assessments.

The appellant also sought to introduce fresh evidence of his progress in prison to be designated a long-term offender instead.

The Court of Appeal dismissed the appeal, finding the escape plot evidence was admissible and relevant to the experts' risk assessments.

Furthermore, the fresh evidence did not establish a reasonable possibility of eventual control of the risk in the community, precluding a long-term offender designation.

The plaintiff commenced an action against his insurer for statutory accident benefits.

The plaintiff's counsel sent a settlement offer to the insurer's adjuster, which the insurer's counsel accepted.

When the plaintiff refused to proceed with the settlement because costs were to be assessed rather than fixed, the insurer moved for judgment under Rule 49.

The motions judge dismissed the motion, finding the offer was improperly served and the insurer failed to provide a notice under section 9.1 of the Automobile Insurance Regulation.

The Court of Appeal allowed the insurer's appeal, holding that the technical defect in service did not invalidate the Rule 49 offer, and that section 9.1 does not apply to settlements reached after litigation has commenced.

The appellant sought to appeal a conviction entered after a guilty plea, after the federal Crown concluded that the conviction occasioned a miscarriage of justice.

The Court of Appeal received fresh evidence in the form of a sealed affidavit, granted an extension of time, quashed the conviction, and directed a new trial, with the Crown undertaking to stay further proceedings.

The court also addressed an application by the federal and provincial Crown to continue a sealing order over the affidavit.

Applying open court principles discussed in Dagenais, the court held that a sealing order was appropriate in rare circumstances but required notice to media outlets.

The appellant was initially found not criminally responsible (NCR) for property offences and possession of an imitation weapon based on psychiatric evidence.

At a subsequent Review Board hearing, it was revealed and undisputed that the appellant had feigned his mental disorder and did not actually suffer from one.

The proceedings before the Review Board were admitted as fresh evidence on appeal.

On the joint position of the parties, the Court of Appeal quashed the NCR finding and ordered a new trial on all counts.

The applicant, appealing a conviction for second degree murder, brought an application for the disclosure of an affidavit relating to the mental state of the principal Crown witness.

The Crown had put the witness's mental state in issue at trial to support her credibility.

The Court of Appeal found that the information in the affidavit suggested a previous diagnosis of post-traumatic stress disorder might have been in error, making it necessary for the applicant to make full answer and defence.

The court ordered the disclosure of the affidavit subject to conditions.

The appellant appealed his conviction for selling cocaine to an undercover officer, arguing the verdict was unreasonable due to frailties in the identification evidence.

The officer identified the appellant from a photo array eight months after the transaction.

The Court of Appeal dismissed the appeal, finding the trial judge was alive to the frailties of identification evidence and reasonably concluded the photo array was fair and the officer's identification was reliable.

The appellant appealed his conviction, arguing that a courier employee acted as an agent for the police when opening a package containing cocaine, thereby violating section 8 of the Charter.

The trial judge found that the employee acted independently based on his perceived obligation to his company, and the police officer did not encourage the search.

The Court of Appeal upheld the trial judge's finding that no agency relationship existed and dismissed the appeal.

The appellant appealed his conviction for attempted murder after striking the victim with his car.

The Court of Appeal found that the trial judge misapprehended evidence regarding the distance and speed of the vehicle, relying on unadopted hearsay to conclude the appellant had the requisite intent to kill.

The Court set aside the attempted murder conviction and, with the Crown's consent, substituted a conviction for the lesser included offence of aggravated assault.

The appellant appealed his convictions and 8-year sentence for robbery and related offences arising from a home invasion.

He argued the Crown improperly invited the jury to draw an adverse inference from his failure to call alibi witnesses disclosed for the first time during cross-examination.

The Court of Appeal dismissed the conviction appeal, finding the trial judge's failure to instruct the jury on the undisclosed alibi actually benefitted the appellant.

The Court substituted a conviction for simple assault on one count.

The sentence appeal was allowed, reducing the sentence to 7 years, as the trial judge erred in principle by denying pre-trial custody credit to punish the appellant for advancing a perjurious defence.

The accused pleaded guilty to the attempted murder of his common-law spouse.

At the sentencing hearing, the Crown sought a life sentence based on the 'Hill principle', attempting to introduce evidence of untried and uncharged violent acts against the victim and a former spouse to demonstrate a pattern of violence.

The trial judge ruled the evidence inadmissible and, based on a joint submission, imposed an eight-year sentence.

The Crown appealed the sentence.

The Court of Appeal dismissed the appeal, holding that while evidence of untried offences can be admitted to show background and character, it cannot be used to increase a sentence beyond what is proportionate to the convicted offence.

The court found no error in the trial judge's exclusion of the evidence or the sentence imposed, particularly given the Crown's position at trial.

The Governing Council of the University of Toronto appealed a Superior Court decision that quashed the Chief Returning Officer's rejection of the respondent's nomination for a student position on the Governing Council.

The lower court found a conflict between the Election Guidelines, which required a candidate to be a member of their constituency throughout the election period, and the University of Toronto Act, which stated every student is eligible for election.

The Court of Appeal allowed the appeal, finding no conflict.

The Court held that 'eligible' does not mean 'entitled,' and the guideline was a valid procedural rule establishing a connection with a constituency.