Mark J. Sandler

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 physician appealed a decision of the Discipline Committee finding he committed acts of professional misconduct, including sexual abuse of a patient.

The Divisional Court allowed the appeal, finding the Committee's reasons were flawed.

Specifically, the Committee failed to distinguish between the complainant's honesty and the reliability of her evidence, subjected the appellant's evidence to a different level of scrutiny, and improperly used after-the-fact conduct to support the complainant's version of events.

The matter was remitted for a re-hearing.

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.

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 appellant appealed a summary conviction for operating a motor vehicle with a blood alcohol concentration exceeding 80 mg per 100 mL of blood.

The appeal alleged errors of law including misapplication of the evidentiary burden under s. 258(1)(c) of the Criminal Code following the Supreme Court’s decision in R. v. St-Onge Lamoureux, improper reliance on earlier breath samples, and failure to assess the reliability of the breath technician’s evidence.

The court acknowledged that the trial judge overstated the evidentiary burden imposed on the accused but held that no substantial wrong or miscarriage of justice occurred.

The evidence supported the reliability of the final two breath samples obtained after the intoxilyzer testing sequence reset and ambient contamination was cleared.

The conviction was therefore upheld.

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 Ministry of Labour charged the City of Guelph with failing to ensure a workplace wall was safe under section 25(1)(e) of the Occupational Health and Safety Act, and charged an architect and engineer with providing negligent or incompetent advice under section 31(2) of the Act.

The charges arose from a concrete wall collapse in 2009 that killed a student, five years after the project's completion in 2004.

All defendants moved to dismiss the charges as statute-barred under section 69 of the Act, which provides a one-year limitation period from the last act or default.

The court distinguished between the charges: the architect and engineer's charges were dismissed as statute-barred because their negligent advice was provided years before the collapse, while the City's charge was permitted to proceed because the employer's duty to maintain a safe workplace is a continuing obligation that extends beyond the construction phase.

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.