Marie Henein

The accused, charged with second degree murder, conspiracy to commit arson, arson causing bodily harm, and arson with intent to defraud in relation to a fatal business fire, challenged the Crown’s attempt to introduce numerous out‑of‑court statements under the co‑conspirators’ exception to the hearsay rule.

The court reviewed the Carter three‑stage test governing admissibility and considered whether a pre‑trial voir dire was required to assess whether the statements were capable of falling within the exception and whether they satisfied the principled approach to hearsay, including necessity and reliability.

The judge held that a voir dire was appropriate where the defence raised credible concerns about whether statements were made in furtherance of a conspiracy or where the availability of declarants raised necessity issues.

Several statements were admitted as capable of meeting the Carter requirements, particularly where declarants were deceased or unavailable and the statements furthered either the alleged arson conspiracy or a post‑offence cover‑up.

Statements attributed to an available witness with significant credibility concerns were excluded because the necessity and reliability requirements of the principled approach were not met.

The appellant was convicted of sexual assault and sexual assault with a weapon against his wife.

At trial, a police officer gave lay opinion evidence that a mark on the appellant's finger was a bite mark, corroborating the complainant's testimony.

On appeal, the appellant sought to introduce fresh evidence from a forensic dentist concluding the mark was not a bite mark.

The Supreme Court of Canada allowed the appeal and ordered a new trial, finding that while the due diligence criterion was not met, the fresh evidence was sufficiently cogent that it could reasonably be expected to have affected the trial judge's credibility assessment and the ultimate verdict.

The appellant was convicted of refusing to comply with a roadside demand for a breath sample.

At trial, she testified that a panic attack prevented her from providing a sample.

The trial judge rejected her evidence, relying on her failure to mention the panic attack to the officer at the roadside and on inconsistent statements she made before being advised of her right to counsel.

The Court of Appeal allowed the appeal and ordered a new trial, holding that the trial judge erred by using pre-counsel roadside statements to impeach the appellant's credibility and by using her pre-trial silence to draw adverse inferences against her.

The appellant appealed his conviction for sexual offences, arguing the trial judge erred in admitting the evidence of two complainants as similar fact evidence due to potential collusion.

The Court of Appeal found the trial judge thoroughly and correctly addressed the possibility of collusion, both as deliberate concoction and as the potential impact of their discussions on the independence of their evidence.

The trial judge's finding that the evidence was not the product of concoction was upheld.

The appeal was dismissed, with the Court noting the case against the appellant was overwhelming.

The appellant physician appealed the revocation of his medical license and a costs order of $95,812 imposed by the Discipline Committee of the College of Physicians and Surgeons for sexual misconduct involving three young boys.

The appellant, joined by intervenors, also challenged the constitutionality of the College investigator's summons power under s. 76(1) of the Health Professions Procedural Code, arguing it violated s. 8 of the Charter.

The Divisional Court dismissed the appeal, finding that the summons power was constitutional in the regulatory context, the Committee had jurisdiction to hear the Charter challenge, and the delay in proceedings did not amount to an abuse of process.

The Court upheld the Committee's factual findings, penalty, and costs order as reasonable.

The applicant sought bail pending appeal of his convictions.

The Crown conceded the appeal was not frivolous and the applicant was not a flight risk, but opposed bail on public interest grounds.

The applicant's appeal grounds relate to the trial judge's refusal to order disclosure of police investigations into two key police witnesses, one of whom was subsequently charged with perjury.

The Court of Appeal granted bail, finding sufficient merit in the appeal grounds to temporarily suspend enforcement of the sentence, and ordered the appeal to be case managed for expeditious resolution.

The appellant appealed his convictions for sexual assault and sexual assault with a weapon against his estranged spouse.

He argued the trial judge erred in relying on the complainant's post-offence demeanour, improperly rejected his evidence, and sought to introduce fresh expert evidence that a mark on his finger was not a bite mark.

The majority of the Court of Appeal dismissed the appeal, finding the trial judge properly assessed credibility and that the fresh evidence, even if believed, could not reasonably be expected to have affected the result given the strength of the other evidence.

The appellant, a lawyer, appealed a conviction for criminal contempt arising from a sentencing submission that inadvertently misled the trial judge regarding her client's pre-sentence custody status.

The trial judge found that the actus reus of contempt was established and placed the burden on the appellant to purge the contempt with an explanation and apology, which he ultimately rejected.

The Court of Appeal allowed the appeal and entered an acquittal, holding that the trial judge erred by failing to properly assess whether the Crown had proven the requisite mens rea beyond a reasonable doubt, and finding that the record did not support a finding of intentional or reckless conduct.

The appellants, husband and wife, were convicted of second degree murder in the death of their seven-year-old son, who died following months of severe physical abuse.

On appeal, the appellants sought to introduce fresh medical evidence regarding the cause of death and challenged the trial judge's jury instructions on aiding and abetting, out-of-court statements, and propensity reasoning.

The Court of Appeal dismissed the appeals, finding that the fresh evidence did not meet the required cogency threshold to affect the verdict, particularly given the tactical decision not to call such evidence at trial.

The Court also found no reversible errors in the jury instructions or evidentiary rulings, and upheld the 18-year parole ineligibility period for the stepmother.

The appellant physician sought a stay of the College's Discipline Committee penalty revoking his licence to practice pending his appeal.

The penalty was based on findings of historic sexual misconduct.

Applying the RJR-MacDonald test, the court found a serious issue to be tried, irreparable harm to the appellant's practice and income, and that the balance of convenience favoured a stay given the historic nature of the complaints and the success of interim practice restrictions.

The motion for a stay was granted on conditions.

The appellant was driving a rented SUV when he was pulled over by a police officer who mistakenly believed the vehicle required a front licence plate.

Despite realizing his error, the officer continued the detention, discovered the appellant's licence was suspended, arrested him, and searched the vehicle, finding 35 kg of cocaine.

The trial judge found breaches of ss. 8 and 9 of the Charter but admitted the evidence under s. 24(2).

The Court of Appeal upheld the conviction.

The Supreme Court of Canada allowed the appeal, applying the revised s. 24(2) framework from R. v. Grant.

The Court held that the police conduct was a brazen and flagrant disregard for Charter rights, aggravated by misleading testimony, and that admitting the evidence would bring the administration of justice into disrepute.

The evidence was excluded and an acquittal entered.

The appellant was convicted of sexual assault against a child but acquitted of sexual interference and invitation to sexual touching.

The trial judge rejected the complainant's evidence but convicted the appellant based on portions of his statement to the police.

On appeal, the Court of Appeal found the verdict unreasonable because the trial judge failed to consider the appellant's statement in its entirety, ignoring exculpatory portions.

The Court also found the conviction inconsistent with the acquittal on the sexual interference charge and held that the trial judge impermissibly drew an adverse inference from the appellant's silence during the police interview.

The appeal was allowed and an acquittal entered.

The appellant was convicted of possession of Ecstasy for the purpose of trafficking and production of Ecstasy.

During the investigation, police obtained a general warrant under s. 487.01 of the Criminal Code to conduct repeated covert entries and searches of a commercial office space and storage units.

The appellant appealed the convictions, arguing that the general warrant violated his s. 8 Charter rights because s. 487.01 does not authorize repeated covert entries and the statutory requirements were not met.

The Court of Appeal dismissed the appeal, holding that a covert entry and search is an investigative technique under s. 487.01, no other provision authorized the technique, and the warrant was in the best interests of the administration of justice.

The appellant was convicted of first degree murder after shooting his former friend and business partner.

On appeal, he argued the trial judge erred by excluding evidence of the deceased's propensity for violence and habit of carrying a gun, and by failing to instruct the jury on self-defence and provocation.

The Court of Appeal dismissed the appeal, finding the trial judge reasonably concluded the excluded evidence's prejudicial effect outweighed its probative value, and correctly determined there was no air of reality to the defences of self-defence or provocation.

The appellant was convicted of second degree murder following a street altercation where he stabbed the deceased.

At trial, the judge declined to leave the defence of provocation with the jury, finding no air of reality to the defence because the appellant disavowed anger as the trigger for his actions.

On appeal, the Court of Appeal held that the trial judge erred.

Despite the appellant's testimony that he acted out of fear, there was evidence from which a properly instructed jury could infer that he acted in the heat of passion or sudden loss of self-control due to the deceased's insults and actions.

The appeal was allowed and a new trial ordered.

The appellant appealed from a decision of a summary conviction appeal judge, arguing that the judge failed to apply the appropriate level of scrutiny to the trial judge's reasons.

The Court of Appeal dismissed the appeal, finding that the summary conviction appeal judge properly examined the trial judge's reasons in conjunction with the evidence and correctly concluded there was evidence to support the findings.

The College of Physicians and Surgeons of Ontario moved for leave to appeal an order dismissing its motions to strike out applications brought by four physicians.

The physicians had applied to the Superior Court challenging the constitutionality of s. 76(1) of the Health Professions Procedural Code.

The College argued the Superior Court lacked jurisdiction and the matters should be heard by the administrative tribunal.

The Divisional Court dismissed the motion for leave to appeal, finding the motions judge correctly applied the test for striking pleadings and properly concluded it was not plain and obvious the applications would fail, as the Superior Court retains residual jurisdiction over Charter challenges.

The Member, a registered nurse, faced allegations of professional misconduct after being convicted of multiple criminal offences for possession of stolen property over $5000 between 1998 and 2003.

The Member admitted to the allegations and pled guilty to professional misconduct.

The Discipline Committee accepted an Agreed Statement of Facts and a Joint Submission on Penalty.

The Member was reprimanded, received a seven-month suspension, and had conditions placed on his certificate of registration, including completing a nursing ethics course and restrictions on handling finances.

The appellant was driving a rented vehicle from Vancouver to Toronto when he was stopped by a police officer without reasonable grounds.

The officer discovered the appellant's license was suspended, arrested him, and searched the vehicle, finding 77 pounds of cocaine.

The trial judge found the officer's conduct violated ss. 8 and 9 of the Charter and described the breaches as flagrant, but admitted the evidence under s. 24(2) due to the seriousness of the offence and the reliability of the evidence.

The Court of Appeal upheld the conviction, finding the trial judge's decision to admit the evidence was reasonable and entitled to deference.

The appellant appealed his conviction for second degree murder and his sentence of life imprisonment with a 14-year parole ineligibility period.

He argued the trial judge erred in instructing the jury on intoxication, capacity to form intent, after-the-fact conduct, and provocation.

The Court of Appeal found the jury instructions were adequate and that the trial judge properly related the evidence to the issues of intent and foreseeability.

The court also upheld the 14-year parole ineligibility period as not clearly unreasonable.

The appeal was dismissed.