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 Toronto Police Service sought judicial review of a decision by the Ontario Civilian Police Commission that varied the penalty imposed on a police officer who pled guilty to deceit and insubordination.

The Hearing Officer had ordered dismissal, but the Commission substituted a penalty of forfeiture of pay, suspension, and demotion, finding the Hearing Officer made several errors in principle.

The Divisional Court dismissed the application for judicial review, holding that the Commission reasonably concluded the Hearing Officer erred by mischaracterizing the officer's admission of a mistake, making unsupported findings about risks to an investigation, and improperly relying on the fact of the officer's suspension.

The Independent Police Review Director (OIPRD) sought judicial review of a decision by the Niagara Police Services Board denying an extension of time to serve a Notice of Hearing on two police officers for neglect of duty.

The Divisional Court had previously quashed the Board's first refusal.

On reconsideration, the Board again refused the extension, substituting its own interpretation of case law for the Divisional Court's previous findings.

The Divisional Court allowed the application, holding that the Board was bound by stare decisis to accept the Court's previous findings, and quashed the Board's second decision.

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 appellant dentist appealed a decision of the Discipline Committee of the Royal College of Dental Surgeons of Ontario, which found he sexually abused a patient and ordered mandatory revocation of his licence, along with a substantial costs award.

The appellant admitted to having sexual intercourse with the complainant but argued she was not his patient at the time.

The Divisional Court dismissed the appeal, finding the Panel's conclusion that a doctor-patient relationship existed was reasonable and supported by medical records.

The court also upheld the costs award, finding no error in principle despite its unusually high quantum, as it was driven by the appellant's defence strategy.

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 Applicants sought judicial review of a decision by the Regional Municipality of Niagara Police Services Board, which declined to extend the time for service of a Notice of Disciplinary Hearing on two police officers beyond the six-month period under s. 83(17) of the Police Services Act.

The Divisional Court found that the Board breached procedural fairness by not providing the Applicants with the officers' submissions or an opportunity to respond.

The Court also found the Board's decision unreasonable for failing to consider the causes of delay holistically.

The Board's decision was quashed and remitted for reconsideration.

The applicant Commissioner of the OPP sought judicial review to quash an order by the respondent Independent Police Review Director requiring a misconduct hearing for an OPP officer.

The officer was charged with neglect of duty for failing to disclose in an Information to Obtain (ITO) and during testimony before a Legislative Committee the reason why a suspect refused to provide a statement.

The Divisional Court granted the application and quashed the order, finding that the officer's conduct could not possibly constitute neglect of duty.

The court held there is no duty to include irrelevant information in an ITO, and the officer answered the Committee's questions truthfully without a duty to volunteer extraneous information.

The appellant was convicted of firearms offences based on text messages found on his co-accused's cell phone.

The appellant challenged the search of the co-accused's phone under s. 8 of the Charter.

The application judge held that the appellant lacked standing because he had no reasonable expectation of privacy in text messages once they reached the recipient's phone.

The Court of Appeal dismissed the appeal, affirming that the sender loses control over the messages once received, thereby extinguishing any objectively reasonable expectation of privacy.

The moving party, a dental surgeon, sought a stay of the revocation of his licence pending his appeal of a Discipline Committee decision finding him guilty of professional misconduct and sexual abuse of a patient.

The court applied the three-part test for a stay.

The court found that while there were weak but arguable grounds regarding the existence of a doctor-patient relationship at the time of one incident, the overwhelming evidence of subsequent sexual abuse made a finding of misconduct and a period of suspension inevitable.

As the moving party would not suffer irreparable harm by beginning to serve an inevitable suspension, the motion for a stay was dismissed.

The appellant appealed convictions arising from historical sexual offences against a teenage complainant who was a close family friend.

He argued that the mixed verdicts were inconsistent and that the jury charge was deficient on count-by-count reasoning, witness credibility, delay in disclosure, corroboration, and limiting use of bad character evidence.

The court held that the acquittals and conviction were rationally reconcilable on the evidence and that the jury instructions, read functionally and as a whole, adequately conveyed the governing principles.

Although a limiting instruction on alleged mistreatment of children would have been preferable, its absence caused no reversible error.

The appeal was dismissed.

The accused was charged with abandoning her four-and-a-half-year-old child after leaving her sleeping in a locked car on a hot July day while she went into a supermarket.

The court applied the Supreme Court of Canada's decision in R. v. A.D.H., which requires proof of subjective fault for the offence.

The court found that while the accused's actions were extremely unwise, the Crown failed to establish beyond a reasonable doubt that she had the requisite awareness of the risk to which she was exposing her child.

The charge was dismissed.

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 pleaded guilty to mischief and criminal harassment after distributing degrading emails and a naked photograph of his former intimate partner and a former co-worker.

He appealed his sentence of 90 days intermittent imprisonment and a suspended sentence, seeking a conditional discharge and introducing fresh evidence of rehabilitation.

The Court of Appeal dismissed the appeal, finding that despite the appellant's positive prospects and time served, a conditional discharge would be contrary to the public interest given the serious nature of the offences and the need for denunciation.