Marc Rosenberg

The appellant was convicted of first-degree murder in the shaking death of his infant stepdaughter.

At trial, the Crown introduced similar fact evidence of a prior shaking incident to rebut the appellant's defence of innocent intention.

The appellant appealed, arguing the verdict was unreasonable and the jury was improperly instructed on the similar fact evidence.

The Court of Appeal held that while the verdict was not unreasonable, the trial judge failed to adequately relate the similar fact evidence to the legal issue of intent under s. 229(a)(ii) of the Criminal Code.

The appeal was allowed and a new trial ordered.

The respondents openly sold direct-to-home satellite systems with access cards that could decode United States satellite programming signals.

The police obtained and executed search warrants at the respondents' business premises, seizing extensive inventory and records.

The respondents successfully applied to quash the warrants and for the return of the seized property.

The Crown appealed.

The Court of Appeal dismissed the appeal, finding that the motions judge properly heard the application rather than deferring to the trial court, correctly concluded that the affiant failed to make full, frank, and fair disclosure, and correctly determined that the alleged offence under s. 9(1)(c) of the Radiocommunication Act was not an offence known to law due to statutory ambiguity regarding foreign signals.

The appellant corporation entered into a personal services contract with the respondent company.

The contract, drafted by the appellant's principal, contained a termination clause providing for compensation if the respondent unilaterally terminated the agreement.

The respondent's principal signed the contract without reading the termination clause.

The respondent later unilaterally terminated the agreement.

The trial judge held that the appellant's principal owed a duty to bring the termination clause to the respondent's attention and rectified the contract by striking the clause.

The Court of Appeal allowed the appeal, finding no such duty existed as the respondent's principal was an experienced businessman who was advised to read the contract.

The Court also held that rectification was inapplicable as there was no mutual intention regarding unilateral termination.

The appellant appealed a trial judgment setting aside a separation agreement and determining net family property.

The Court of Appeal found no error in the trial judge's conclusions that the respondent lacked capacity to sign the agreement, that its terms were unconscionable, and that it was signed under duress.

The court also upheld the trial judge's valuation of net family property.

The appeal was dismissed.

On cross-appeal, the court upheld the denial of pre-judgment interest but allowed the cross-appeal regarding costs, awarding the respondent her costs at trial on a party and party basis because she recovered a judgment in excess of her offer.

The appellant appealed the dismissal of his action under Rule 21.

The motions judge had dismissed the action, framed in negligence and breach of fiduciary duty, on the basis that it was brought after the expiry of the six-year limitation period and did not properly plead fiduciary duty.

The Court of Appeal granted the appellant leave to amend his statement of claim to address discoverability and properly plead breach of fiduciary duty, on the condition that he pay the respondents' costs of $3,500 within 30 days.

The appellant pleaded guilty to criminal harassment, impaired driving, and other offences, and was sentenced to two years' imprisonment and a lifetime firearms prohibition.

On appeal, the appellant argued the trial judge erred in imposing a mandatory lifetime firearms prohibition under s. 109(3) of the Criminal Code because the Crown had not provided notice under s. 727(1) that it would seek a greater punishment based on prior convictions.

The Court of Appeal agreed, holding that a mandatory lifetime prohibition for a subsequent offence constitutes a greater punishment requiring notice.

The appeal was allowed in part, and the lifetime prohibition for non-restricted firearms was varied to 15 years.

The appellant was convicted of second degree murder after fatally stabbing his friend during a fight.

At trial, the defence argued the appellant was extremely intoxicated from inhaling glue and consuming alcohol, impairing his capacity to form the intent to kill.

During deliberations, the jury asked a question about the timing of the appellant's glue inhalation relative to a threatening comment he made.

The trial judge declined to review the relevant evidence for the jury.

On appeal, the Court of Appeal held that the verdict was not unreasonable, but the trial judge erred in failing to review the evidence in response to the jury's question.

The appeal was allowed and a new trial ordered.

The appellant appealed his convictions for robbery, attempted robbery, wearing a disguise, and carrying a concealed weapon, as well as his six-year sentence.

The Court of Appeal dismissed the appeals regarding identification evidence and the use of an imitation firearm.

However, the Court allowed the appeal against the attempted robbery conviction, finding that the appellant's actions of observing a credit union while in possession of a disguise and imitation firearm did not go beyond mere preparation.

The attempted robbery conviction was quashed, and the total sentence was reduced by one year.

The appellant appealed a judgment regarding the integration of his pension and his entitlement to life insurance.

The Court of Appeal questioned its jurisdiction to hear the matter under section 50 of the Arbitration Act, 1991, but heard the merits as both parties submitted the proceeding below sought declarations beyond the arbitrated issues.

The Court held it had no jurisdiction over the pension integration issue because the parties' agreement required arbitration for pension disputes with no recourse to the courts.

On the life insurance issue, the appellant failed to provide material demonstrating he had not received the normal retiring benefit.

The appeal was dismissed.

The appellant was convicted of assault, unlawful confinement, assault causing bodily harm, and sexual assault with a weapon.

He appealed on several grounds, including the defective form of the indictment and the improper conduct of Crown counsel.

The Court of Appeal found that while the indictment was improperly drafted, the Crown's particulars cured the defect for most counts, except count #10.

However, the Court held that Crown counsel's cross-examination of the appellant was highly improper, sarcastic, and abusive, and improperly attacked the appellant's character.

This misconduct, combined with an improper jury address, created a real danger of a miscarriage of justice.

The appeal was allowed and a new trial ordered.

The plaintiff was involved in two separate motor vehicle accidents and sued multiple defendants, including her own insurer, State Farm, because one driver was uninsured.

At trial, one defendant, Hnatiuk, was found 100% responsible for the first accident, and the action against State Farm was dismissed.

The trial judge refused to order Hnatiuk to pay State Farm's costs (a Bullock or Sanderson order) and awarded the plaintiff solicitor-and-client costs against Hnatiuk based on an unaccepted offer to settle that included escalating costs.

On appeal, the Court of Appeal allowed the plaintiff's appeal, granting a Sanderson order directing Hnatiuk to pay State Farm's costs.

The Court dismissed Hnatiuk's appeal regarding the costs award, upholding the solicitor-and-client costs either under the discretion of Rule 49.13 or as a valid Rule 49 offer.

The appellant, a bouncer, struck a patron outside a tavern, causing the patron to fall and hit his head on the concrete, resulting in death.

The preliminary inquiry judge committed the appellant for trial on a charge of murder, finding evidence that he knew his actions were likely to cause death and was reckless.

The appellant's application for certiorari to quash the committal was refused.

On appeal, the Court of Appeal dismissed the appeal, holding that while the evidence of the requisite knowledge was weak, there was a scintilla of evidence to support the committal.

The appellant appealed a custodial sentence.

The Court of Appeal found that the trial judge erred in principle by mechanically applying a two-stage process, which led to a failure to consider the appellant's extraordinary cooperation with police and significant rehabilitation.

The appeal was allowed, and the custodial sentence was varied to a 20-month conditional sentence, with the three-year probation term remaining.

The appellants appealed their convictions, arguing the trial judge erred in his treatment of alibi evidence and by admitting hearsay evidence.

The Court of Appeal found that the trial judge reversed the burden of proof by stating he was 'not satisfied' the alibi witnesses were reliable, without considering if their evidence raised a reasonable doubt.

Additionally, the trial judge erred in admitting hearsay evidence regarding cell phone records through a police officer without meeting the principled exception to the hearsay rule.

The Court of Appeal allowed the appeals, set aside the convictions, and ordered a new trial for both appellants, declining to apply the curative proviso.

The Crown appealed the sentences imposed on the respondent for extortion and impaired driving causing bodily harm.

The trial judge had departed from a joint submission and imposed a conditional sentence for extortion and 60 days' imprisonment for impaired driving causing bodily harm.

The Court of Appeal found the conditional sentence inappropriate but declined to interfere as it was nearly completed.

However, the Court held the 60-day sentence for impaired driving causing bodily harm was manifestly inadequate, noting the respondent was on bail for 'over 80' at the time.

The sentence for impaired driving causing bodily harm was increased to five months.

The Crown appealed the conditional sentence imposed on the respondent, arguing the trial judge erred by failing to include punitive conditions.

The Court of Appeal agreed that an error in principle occurred, noting the trial judge did not have the benefit of the Supreme Court's decision in R. v. Proulx.

However, the Court dismissed the appeal due to the respondent's family circumstances, his guilty plea, his testimony against co-accused, and the significant passage of time since the offence and sentencing.

The appellant appealed his conviction for robbery and his sentence of three and one-half years' imprisonment.

He argued that the trial judge's Vetrovec warning regarding an accomplice's testimony was deficient, that hearsay evidence was improperly admitted, and that the defence of intoxication should have been left to the jury.

The Court of Appeal dismissed the conviction appeal, finding the Vetrovec warning adequate, no prejudice from the hearsay evidence, and no air of reality to the intoxication defence.

The sentence appeal was also dismissed, as the trial judge properly applied the mandatory minimum for robbery with a firearm and the sentence was not excessive.

The appellant appealed her custodial sentence for cocaine trafficking.

The trial judge had rejected a conditional sentence on the basis that general deterrence and denunciation required a custodial sentence.

Relying on the Supreme Court of Canada's decision in R. v. Proulx, the Court of Appeal held that general deterrence and denunciation can be met by a conditional sentence even in cocaine trafficking cases.

Given the appellant's full rehabilitation over four years on bail, the appeal was allowed and the sentence varied to a 13-month conditional sentence.

The appellant appealed his conviction, arguing ineffective assistance of counsel because his trial counsel failed to apply to strike his guilty plea after learning of a second DNA test.

The Court of Appeal dismissed the appeal, finding that counsel had informed the appellant of the test and its significance.

The court held that counsel's decision not to seek to set aside the plea was within the bounds of competency, as the second DNA test would have had minimal impact given the strong independent evidence confirming the complainant's testimony.

The appellant, a bank employee in a position of trust, appealed a summary judgment dismissing her wrongful dismissal action.

The motions judge found the bank had just cause to dismiss her after she engaged in kiting or similar conduct, having been warned twice previously.

The Court of Appeal upheld the decision, finding no trial was required as the appellant had no innocent explanation and admitted to the conduct.