Marvin A. Catzman

The appellant appealed convictions for aggravated assault, robbery, and uttering a death threat, and also appealed sentence.

The court rejected the challenge to the jury charge on identification evidence, holding the instruction was sufficient and finding no merit in that ground.

On sentence, the appellant argued parity required a reduction after a co-offender's sentence had been lowered on appeal.

The court held parity did not mandate equal sentences where the offenders' circumstances differed, including remorse, criminal record, and post-sentence evidence, and upheld the sentence as fit and free of error in principle.

The appellant appealed a sexual assault conviction, arguing that the trial judge improperly relied on prior consistent statements, made an unreasonable finding regarding attempted anal intercourse, and reversed the onus when discussing physical evidence.

The Court of Appeal held that the trial judge did not use prior consistent statements to bolster credibility, but only to identify the scope of the alleged recent fabrication and assess the explanation offered.

The court further held that the impugned factual finding was reasonably open on the evidence, including testimony and medical evidence.

It also found no onus reversal, as the trial judge merely noted the absence of an explanation capable of raising a reasonable doubt in the context of an admitted intercourse and consent defence.

The appeal was dismissed.

The appellant appealed conviction and sentence arising from offences involving choking used to facilitate a sexual assault, while the Crown also appealed sentence.

The court held the trial judge was entitled, on the evidence including forensic evidence, to find that the choking facilitated the sexual assault notwithstanding inconsistencies in the complainant's testimony.

Although the trial judge misstated the law on corroboration in sexual assault cases, that error could only have benefited the appellant.

Leave to appeal sentence was granted to both sides, but no error in principle or demonstrable unfitness was shown, and all appeals were dismissed.

The appellant appealed a sentence of fifteen months' imprisonment imposed after a guilty plea to production of 102 marijuana plants.

The court held that the sentence was outside the appropriate range, noting the absence of a prior record, the absence of evidence of trafficking, and recent Supreme Court of Canada guidance on conditional sentences.

Applying the principle that a conditional sentence is likely a better sanction where both punitive and restorative objectives can be achieved, the court substituted a conditional sentence of fifteen months commencing on the date of judgment.

The Crown appealed a sentence imposed following a guilty plea to aggravated assault arising from a stabbing that caused near-fatal injuries.

The majority held that the trial judge crafted a sentence that appropriately responded to the circumstances, including significant restrictions on liberty over four and a half years, and found no error warranting appellate intervention.

Fresh psychiatric evidence indicating the respondent's mental state was stable and that he presented no risk to the community reinforced that conclusion.

A dissenting judge would have set aside the conditional sentence and imposed a 12-month custodial sentence plus probation.

The appellant appealed a sexual assault conviction arising from a motel room encounter where the central issue was consent and credibility.

The court held that the trial judge erred by instructing the jury that a deliberately false explanation could be used as circumstantial evidence of guilt without first requiring extrinsic or independent evidence that the explanation was concocted.

Given the nature of the case, the jury's difficulties, and the risk that the burden of proof was distorted, the curative proviso could not be applied.

The conviction was set aside and a new trial ordered.

The appellant appealed a jury conviction and advanced, among other grounds, ineffective assistance of counsel and improper use of evidence connected to a bail hearing.

Applying the governing two-part framework, the court held the proposed fresh evidence established neither incompetence nor a miscarriage of justice, and found the suggested alternative trial strategy would have exposed the appellant to highly prejudicial bad character evidence.

The court also held that the impugned questioning did not engage s. 13 of the Charter and did not violate s. 7 because the appellant was not confronted with his prior bail testimony and the reply evidence regarding the bail document was inconsequential.

The application to admit fresh evidence was dismissed and the appeal was dismissed.

The appellants appealed convictions for manslaughter, conspiracy to commit robbery, possession of a weapon, and wearing a disguise arising from a fatal botched robbery.

The court held that the trial judge erred in three respects: by giving an improper deadlock exhortation that suggested the majority view was correct, by failing to give a limiting instruction on bad character evidence led by one co-accused against the other, and by failing to provide a Vetrovec warning regarding a central accomplice witness whose credibility was seriously in issue.

The court declined to apply the curative proviso under s. 686(1)(b)(iii) of the Criminal Code.

The convictions were set aside and a new trial was ordered.

The appellant appealed a jury conviction for counselling murder arising from an alleged arrangement with a co-accused witness to kill a prospective witness in unrelated property offences.

He argued the verdict was inconsistent with acquittals on conspiracy to commit murder and attempted murder, that the jury charge on counselling was flawed, that a prior guilty plea to possession of property obtained by crime was wrongly admitted, and that the Crown’s closing unfairly overstated the target witness’s importance.

The Court of Appeal held the verdicts were not violently at odds because the offences were separately defined and involved materially different elements, the charge as a whole could not have misled the jury, the prior guilty plea was admissible, and the closing address disclosed no reversible error.

The appeal was dismissed.

The appellant challenged his convictions on the basis that the trial judge improperly dismissed a Charter application seeking exclusion of a saliva sample.

The Court of Appeal held that the trial judge erred by placing the burden on the appellant to prove lack of consent under s. 8, failed to make adequate credibility findings, and gave no reasons on the alleged s. 10(b) breach.

Applying the conscriptive evidence analysis from Stillman, the court concluded the trial judge's s. 24(2) analysis was of little assistance and rejected the Crown's discoverability argument for lack of evidentiary foundation.

The convictions were set aside and a new trial was ordered.

The appellant challenged his conviction on the basis that a saliva sample was obtained without informed consent and without permitting access to counsel after request.

The court held that the trial judge erred by placing the onus on the appellant to prove lack of consent under s. 8 of the Charter and failed to give reasons on the s. 10(b) issue.

Applying the framework for conscriptive evidence and discoverability under s. 24(2), the court was not satisfied that the saliva sample would be admissible.

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

The appellant appealed convictions and sentence arising from trafficking in large amounts of cocaine.

He argued primarily that the judge hearing the Garofoli application unfairly limited cross-examination of the police officer who swore the affidavits supporting wiretap authorizations.

The court held that leave to cross-examine on such affidavits is not automatic, informer privilege remained protected absent the innocence-at-stake exception, and the application judge properly exercised his discretion in restricting questions that risked revealing protected information.

The court also rejected a sentence disparity argument, finding the appellant played a more significant role than others in the trafficking operation.

Both conviction and sentence appeals were dismissed.

The appellant estate challenged a deathbed transfer of land changing title from tenancy in common to joint tenancy, alleging lack of capacity and undue influence.

The Court of Appeal, by majority, held that the trial judge's findings were entitled to deference and were reasonably supported by the evidence.

The majority found the deceased had the requisite disposing mind and memory and that the successful persuasion to sign appealed to fairness rather than amounting to coercion.

A dissenting judge would have found actual undue influence based on the cumulative pressure exerted in the hospital room.

The appeal was dismissed with costs to the respondent payable from the estate.

The Crown appealed a sentence imposed after a manslaughter conviction arising from the death of the accused's mother by ligature strangulation.

The court reiterated the deferential appellate standard for sentence appeals and held that a conditional sentence for manslaughter is not, in itself, an error in principle.

In light of the offender's remorse, rehabilitation, psychiatric evidence, lack of risk to the community, and the trial judge's careful consideration of the sentencing objectives in the Criminal Code, the majority found no basis to interfere.

Leave to appeal sentence was granted, but the appeal was dismissed, with a dissent concluding that denunciation and general deterrence required custody.

The appellant challenged his conviction on evidentiary and credibility-assessment grounds.

The court held that evidence relating to a stolen Nintendo and a note left by the appellant was admissible, provided it was not used as propensity evidence, and found no such misuse on the record.

However, the trial judge's reasons showed a failure to assess whether disbelief of the appellant's testimony nonetheless left the court with a reasonable doubt in a case turning on credibility.

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

The appellant sought a declaration of professional competence and an order requiring a bank to place him on its list of lawyers qualified to act for it.

The court held there was no evidentiary foundation on the summary judgment record to connect the bank's internal competence manual to a by-law under s.158(2) of the Bank Act, and no other basis to compel the bank to retain the appellant.

The court further held it had no jurisdiction to grant a declaration respecting the appellant's competence as a lawyer.

The dismissal of the action on summary judgment was affirmed and the appeal was dismissed with costs.

This appeal concerned a construction tender in which the tender document and bid bond, read together, disclosed an obvious discrepancy between the stated tender price and the amount said to represent five percent bid security.

The court held that the mistake was apparent on the face of the tender, distinguishing the situation from the governing principle in Ron Engineering, which did not address facially apparent tender errors.

Because the error was evident from the tender package itself, the appellants were legally entitled to refuse to execute the construction contract after promptly notifying the respondent and seeking correction or withdrawal.

The appeal was allowed, the trial judgment was set aside, and the action was dismissed with costs.

The appellants challenged a Divisional Court decision that held development lands zoned for industrial and commercial use could not receive farm land assessment treatment because agricultural use was illegal under the zoning by-laws.

The Court of Appeal held that s. 19(3) of the Assessment Act focuses on actual use of the land as a factual matter, not on zoning legality, and that the ordinary meaning of the provision should govern absent compelling contrary indicators.

The court found no basis to read the word “lawfully” into the statute, noted the legislative scheme and policy favoured continued agricultural production, and concluded the Ontario Municipal Board reasonably found the lands were farm lands used only for farm purposes.

The appeal was allowed, the Divisional Court order was set aside, and the Board's order was restored.

In an appeal arising from a failed court-approved receiver sale of commercial property, the appellant receiver challenged an order requiring the return of the purchaser's deposit.

The court held that the alleged deficiencies in the closing documentation did not go to the root of title and did not impair the receiver's ability to convey good title on closing.

Because the purchaser was not justified in refusing to close, it was not entitled to recover its deposit.

The appeal was allowed, the motion below was dismissed, and the deposit paid into court was ordered released to the receiver with accrued interest.

The appellant challenged a deficiency judgment arising from repossession and sale of a replacement boat delivered after the original financed boat proved deficient.

The Court of Appeal held that the replacement vessel was not "proceeds" within the meaning of the Personal Property Security Act, but concluded that the parties, by their conduct over several years, modified the original conditional sale contract so that it applied to the replacement boat.

As a result, the secured creditor was entitled to repossess the replacement boat after default and sue for the deficiency.

The appeal was dismissed with costs.