Mark J. Sandler

The applicant, charged with firearms offences, brought a Charter application challenging the search of his residence, the seizure of his cell phone, and the search of text messages on a co-accused's phone.

The court found the search warrant for the residence was overly broad and lacked reasonable grounds, violating s. 8.

The seizure of the applicant's phone was also unauthorized.

Evidence from the residence and the applicant's phone was excluded under s. 24(2).

However, the court held the applicant had no reasonable expectation of privacy in text messages sent to the co-accused's phone, dismissing that part of the application for lack of standing.

In an extradition appeal, the court issued a brief endorsement addressing whether a publication ban imposed by the extradition judge during the hearing extended to the court's previously released decision.

The court held that, whether explicitly or implicitly, the ban was subject to further order of the court.

It declined to apply the ban to the appeal decision and confirmed that the decision could be published.

The appellant physician appealed findings by the Discipline Committee of the College of Physicians and Surgeons that he engaged in sexual abuse of a patient and professional misconduct.

The appellant argued the Committee failed to properly consider inconsistencies in the complainant's evidence and video surveillance footage.

The Divisional Court dismissed the appeal, finding the Committee's credibility assessments and conclusions were reasonable and supported by the evidence.

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 applicant filed a police misconduct complaint arising from a stop and search during the G20 summit.

The OIPRD investigated and directed the Chief of Police to hold a disciplinary hearing.

Because more than six months had passed, the Chief applied to the Police Services Board for an extension of time.

The Board denied the extension without notifying the applicant, allowing him to make submissions, or providing reasons for its decision.

On judicial review, the Divisional Court quashed the Board's decision, holding that the Board breached its duty of procedural fairness by failing to provide the applicant with notice, an opportunity to be heard, and reasons for its decision.

The appellant, a family doctor, was convicted of sexually assaulting a patient during an examination.

His appeal to the Summary Conviction Appeal Court was dismissed.

He sought leave to appeal to the Court of Appeal, arguing the trial judge erred in law by failing to consider the complainant's 'suspicions evidence' when assessing her credibility.

The Court of Appeal dismissed the motion for leave, finding no clear error of law and concluding the trial judge properly considered all evidence in his credibility analysis.

The appellant appealed a jury conviction for sexual assault arising from sexual activity at a house party involving an intoxicated complainant and later DNA confirmation.

The court held that the jury charge was fatally deficient because it failed to properly put the defence position, conflated actual and mistaken belief in consent, misstated the burden of proof by implying the accused had to prove consent beyond a reasonable doubt, and referred to wilful blindness without defining it.

Although the charge also included unnecessary references to vitiating factors unsupported by the evidence, that error alone was not reversible.

Considering the cumulative effect of the charge errors, the court declined to apply the curative proviso, quashed the conviction, and ordered a new trial.

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.

The young person appealed a finding of guilt for extortion.

The trial judge provided only half a page of analysis after a ten-day trial, failing to address significant inconsistencies in the evidence or specify which of the five alleged incidents constituted the extortion.

The Court of Appeal allowed the appeal and ordered a new trial, holding that the trial judge's reasons were insufficient and demonstrated a failure to consider the whole of the evidence.

The Crown appealed the acquittal of a police officer charged with assault, attempt to obstruct justice, and perjury arising from his arrest of a demonstrator.

The Crown argued the trial judge erred in permitting the defence to challenge potential jurors for cause based on their affiliation with the protest group, and that the challenge procedure was flawed.

The Court of Appeal dismissed the appeal, finding the trial judge properly exercised his discretion in allowing the challenge for cause and that any procedural irregularities in the jury selection process caused no prejudice to the Crown.

The respondents were charged with multiple counts of fraud and conspiracy relating to an investment scam.

The trial judge granted a stay of proceedings under s. 11(b) of the Charter, finding unreasonable delay.

The Crown appealed.

The Court of Appeal allowed the appeal, finding that the trial judge erred in his allocation of the delay, his determination of prejudice, and his balancing of the accused's rights against the societal interest in having serious charges tried.

The stay was set aside and the matter was ordered to proceed to trial.

The appellant appealed his convictions for assault, assault with a weapon, and uttering a death threat against his wife, primarily arguing ineffective assistance of trial counsel.

The appellant alleged that his trial counsel lacked legal knowledge, failed to adduce helpful evidence, and was suspended from practice by the Law Society during the trial.

The Court of Appeal applied the G.D.B. test and found that while trial counsel's performance was deficient in some respects and his suspension was a matter of serious concern, the appellant failed to demonstrate that the incompetence resulted in a miscarriage of justice or an unreliable verdict.

The appeal was dismissed.

The appellant challenged convictions for sexual exploitation involving teenage complainants, arguing the trial judge misdirected himself on the meaning of a position of trust and improperly relied on evidence said to be tainted by collusion and police pressure.

The Court of Appeal held that the trial judge correctly applied the governing authorities under s. 153(1)(a) of the Criminal Code and was entitled to find a relationship of trust based on the appellant's close involvement with the family and the entrusted care of the young persons.

The court also held that the trial judge was not required to reject all impugned evidence and that the convictions rested largely on unchallenged evidence.

Leave to appeal sentence was granted, but the sentence appeal was dismissed.

The appellant appealed his conviction and sentence for assault, arguing that the summary conviction appeal court judge failed to provide adequate reasons and that the trial judge misapprehended evidence and applied unequal scrutiny to the testimony.

The Court of Appeal found that the summary conviction appeal court judge's reasons were adequate and permitted effective appellate review.

The Court rejected the appellant's arguments regarding the trial judge's assessment of credibility, the complainant's prior statements, and the use of confirmatory evidence.

The appeal from conviction was dismissed, and leave to appeal the sentence was refused.

The appellant appealed her conviction for second degree murder and her thirteen-year parole ineligibility period for shooting and killing her former husband during a child custody dispute.

She argued the trial judge erred by refusing to leave the defence of provocation with the jury.

The Court of Appeal dismissed the conviction appeal, finding no air of reality to the provocation defence because the appellant's actions were not sudden and she had time for her passion to cool.

The sentence appeal was also dismissed, as the trial judge made no error in principle in setting the parole ineligibility period.

The Attorney General of Ontario and the Ontario Provincial Police appealed a motions judge's order refusing to dissolve an injunction against Aboriginal protestors occupying a residential development, and requiring the Attorney General to take carriage of criminal contempt proceedings while reporting back to the court.

The Court of Appeal allowed the appeal in part.

It held that the motions judge erred in refusing to dissolve the injunction after the Ontario government purchased the property and consented to the occupation.

The Court maintained the referral of the contempt matters to the Attorney General, but imposed strict conditions, finding that the motions judge's previous contempt process was fundamentally flawed for denying procedural fairness and improperly interfering with police and prosecutorial discretion.

The Attorney General of Ontario brought a motion to stay an order of a motion judge pending appeal.

The motion judge had refused to dissolve an injunction prohibiting protestors from occupying land, even though the land had been purchased by the Province of Ontario, until criminal contempt proceedings were disposed of.

The Court of Appeal granted a stay of the paragraph continuing the injunction, finding a serious issue as to its validity, irreparable harm to the public interest and land claim negotiations, and that the balance of convenience favoured a stay.

The court declined to stay the paragraph referring the contempt matter to the Attorney General for carriage.

The applicant, a Canadian citizen, sought judicial review of the Minister of Justice's order surrendering him to the United States to face charges of conspiracy to distribute cocaine.

The applicant argued that the American jurisdictional claim was unfounded, that his surrender violated his section 6(1) Charter right to remain in Canada, and that he was denied procedural fairness.

The Court of Appeal dismissed the application, finding that the Minister correctly applied the substantial connection test to determine that Canada would have jurisdiction in similar circumstances, reasonably weighed the factors favouring prosecution in the United States, and afforded the applicant adequate procedural fairness.

The appellant appealed his convictions for conspiracy to smuggle, sell, and possess alcohol, and possession of unlawfully imported spirits.

The Court of Appeal found significant errors in the trial judge's jury instructions.

The trial judge failed to adequately explain the defence's position, mischaracterized the defence's argument regarding the police investigation, and improperly suggested that police surveillance confirmed the evidence of unsavoury witnesses.

Additionally, the instructions on the co-conspirators' exception to the hearsay rule (the Carter test) were confusing and deficient.

The appeal was allowed, the convictions were set aside, and a new trial was ordered.