Mark J. Sandler

The appellant, J.C., appealed his convictions for sexual assault, sexual interference, and invitation to sexual touching related to K.M., while he was acquitted of charges related to C.M. The appeal raised four main issues: the admission of similar act evidence from C.Y., the consideration of cross-count similar act evidence between K.M. and C.M., the lack of a jury instruction on the prohibited use of bad character evidence from Facebook communications, and the refusal to permit a challenge for cause during jury selection.

The Court of Appeal dismissed the appeal, finding no errors in the trial judge's decisions regarding the admissibility and use of similar act evidence, the jury instructions, or the refusal to allow a challenge for cause.

The appellants, a corporation and its owner, appealed their convictions for tax evasion and making false statements under the Income Tax Act.

The trial judge had found that claiming the owner's son's wedding as a business expense was illegal, relying heavily on a finding that there was 'no evidence' that business associates attended the wedding.

The Superior Court of Justice allowed the appeal, finding that the trial judge misapprehended the evidence of the company's accountant, who testified that the owner told him many business associates were present.

This misapprehension played an essential role in the trial judge's reasoning, resulting in a miscarriage of justice.

A new trial was ordered.

The appellant was convicted of sexual interference, sexual exploitation, and sexual assault following a jury trial.

The offences involved two separate incidents with the appellant's stepdaughter when she was 13 years old and approximately 18 months later.

On appeal, the court found that the trial judge erred in failing to instruct the jury that evidence concerning one incident could not be used to support a finding of guilt on charges relating to the other incident.

The jury charge was deficient and confusing, creating a risk of propensity reasoning.

The appeal was allowed, a new trial was ordered, and an acquittal was entered on the sexual exploitation count as the complainant did not meet the statutory definition of a young person.

The appellant appealed his convictions for three historical sexual offence charges on the basis that the trial judge erred in denying two s. 11(b) Charter applications regarding unreasonable delay.

The first application was decided under the Morin test, and the second under the Jordan test.

The Court of Appeal found that the trial judge erred in calculating the delay period and in assessing the relevant factors.

The trial judge incorrectly attributed delay to the defence when much of it was attributable to Crown disclosure practices and procedural issues.

The properly calculated delay of over 17 months substantially exceeded the Morin guideline of 8-10 months for provincial trials.

The case was not complex, and the prejudice to the accused was not modest as the trial judge had found.

The appeal was allowed, convictions were set aside, and the proceedings were stayed.

The Court allowed the accused’s appeal and held that, on the totality of circumstances, he had a reasonable expectation of privacy in text messages recovered from the recipient’s phone, giving him standing to challenge the search under section 8.

With standing conceded, the warrantless search was unreasonable, and the text-message evidence was excluded under section 24(2) because admission would bring the administration of justice into disrepute.

Without that evidence the convictions could not stand, and the curative proviso did not apply.

The appellant, a pediatrician, was convicted at trial of sexual assault following a genital examination of a 15-year-old patient during an initial consultation for attention deficit disorder.

The trial judge found that the appellant did not forewarn the patient of the genital examination and did not palpate the patient's testicles, and concluded the touching was gratuitous and for a sexual purpose.

The Court of Appeal found the trial judge misapprehended material evidence regarding the reliability of the complainant's testimony, the significance of the appellant's contemporaneous medical notes, and the expert evidence regarding the medical necessity and appropriateness of the examination.

The court concluded that on a correct apprehension of the evidence, no reasonable trier of fact could find the appellant guilty beyond a reasonable doubt.

The defendant, Daniel Costa, was charged with perjury for making a false statement under oath to homicide detectives.

The Crown conceded that Costa could not be convicted of perjury due to the application of s. 131(3) of the Criminal Code, as he was not legally required, permitted, or authorized to make the statement.

The Crown then sought to continue the prosecution on the basis that attempt to obstruct justice was an included offence of perjury as described in the indictment.

The court denied the Crown's request, finding that attempt to obstruct justice was not necessarily included in the perjury charge as worded, and that the accused did not have fair notice of this potential charge.

The appellant was convicted of possession of controlled substances and possession for the purpose of trafficking based on evidence seized from his residence and vehicle pursuant to search warrants.

The central fact in the Information to Obtain (ITO) supporting the warrants was false: the police believed the appellant had sent a text message setting up a drug transaction, but it was actually sent by an employee.

The trial judge dismissed the appellant's Charter s. 8 application.

On appeal, the Court of Appeal found the search warrants invalid, as the false information was the central basis for the residence search, and the remaining evidence was insufficient.

The court also found the warrant overbroad and the execution improper.

Applying s. 24(2) of the Charter, the court excluded the evidence and set aside the convictions.

The appellant, Anna Trubashnik, appealed her conviction for public mischief, arguing errors by the trial judge and seeking to admit fresh evidence, specifically a videotaped police interview and medical evidence.

The court applied the R. v. Palmer test for fresh evidence, relaxing the due diligence requirement for criminal cases.

It found the videotaped statement, which revealed the appellant's state of mind and doubts about the alleged robbery, to be relevant, credible, and potentially outcome-determinative.

The appeal was granted, and a new trial was ordered to allow the trial judge to consider this fresh evidence.

The defendant was charged with abandoning a child under section 218 of the Criminal Code after leaving her four-and-a-half-year-old daughter sleeping in a locked car on a hot July day while she briefly entered a supermarket.

The Crown alleged the child was left unattended for approximately 30 minutes in temperatures reaching 28.6 degrees Celsius.

The court applied the Supreme Court of Canada's decision in R. v. A.D.H., which requires proof of subjective fault—specifically, awareness of the risk created by the conduct.

The court found that while the defendant's actions were unwise, the evidence did not establish beyond reasonable doubt that she had the requisite awareness of the risk.

The charge was dismissed.

The appellant appealed a summary conviction for sexual assault arising from an incident during a work retreat where he entered a colleague’s bedroom through a balcony and engaged in non-consensual sexual touching.

He argued the trial judge misapprehended evidence, erred in credibility findings, misdirected himself regarding honest but mistaken belief in consent, and improperly rejected unchallenged evidence.

The Superior Court held that the trial judge properly applied the W.D. framework, made credibility findings grounded in the record, and did not materially misapprehend evidence.

The court further held that the defence of honest but mistaken belief in consent lacked an evidentiary foundation because there was no conduct from the complainant capable of conveying consent.

The appeal was dismissed.

The appellant, a family doctor, appealed his conviction for sexually assaulting a patient during an after-hours examination.

He argued the trial judge erred in relying on the complainant's post-event demeanour, failing to properly assess her credibility regarding her suspicions of his motives, misapprehending a witness's evidence, and misapplying the W.(D.) framework for credibility.

The Summary Conviction Appeal Court dismissed the appeal, finding the trial judge properly applied the law, reasonably assessed the evidence, and made no reversible errors in concluding the Crown's evidence overwhelmed the defence's evidence.

During a criminal fraud trial involving former corporate executives, the Crown sought disclosure of lawyers’ interview notes created while representing two accused during internal corporate investigations.

The defence asserted litigation privilege over handwritten and typed notes taken by counsel and assisting lawyers during interviews conducted by investigators retained by the corporation’s audit committee.

The court held that the notes were created for the dominant purpose of anticipated litigation, including regulatory proceedings and civil actions, and therefore attracted litigation privilege.

None of the recognized exceptions to litigation privilege were established.

The court ruled that the privileged notes were not producible, though counsel-witnesses could review their own notes to refresh memory without waiving privilege.