Mary Lou Benotto

The Court of Appeal for Ontario dismissed Kirk Richard Iredale’s appeal from the Superior Court’s order regarding equalization of assets and spousal support following the breakdown of his marriage to Carol Jeanette Dougall.

The court held that the trial judge properly found the equalization payment remedied any unjust enrichment and that a time-limited spousal support award was appropriate.

The court also upheld the trial judge’s refusal to admit fresh evidence post-trial.

The appellant, Guled Mohamed, appealed his conviction for possession of cocaine for the purpose of trafficking.

He raised three grounds: the trial judge erred in finding he lacked standing to challenge the search warrant, erred in inferring guilt from circumstantial evidence, and rendered an unreasonable verdict due to insufficient evidence of his knowledge of the cocaine.

The Court of Appeal dismissed the appeal, affirming the trial judge's findings on standing, the application of circumstantial evidence, and the reasonableness of the verdict.

The court clarified that a trial judge is not bound to accept the Crown's theory on standing if the accused presents contradictory evidence, and reiterated the standard for assessing circumstantial evidence and unreasonable verdicts.

Jacob Hoggard appealed his conviction for sexual assault causing bodily harm to J.B., arguing the trial judge erred by admitting expert evidence on the neurobiology of trauma, failing to correct the Crown's closing submissions, delivering an unbalanced jury charge, and improperly admitting discreditable conduct evidence.

The Court of Appeal found that the trial judge erred in admitting the expert testimony as it was not necessary and risked misuse, but applied the curative proviso under s. 686(1)(b)(iii) of the Criminal Code, concluding that no substantial wrong or miscarriage of justice occurred due to the trial judge's effective corrective instructions.

The other grounds of appeal were dismissed, and the appeal was dismissed.

This appeal concerned a dispute over the purchase and sale of a luxury home, where the purchaser sought rescission of the Agreement of Purchase and Sale due to fraudulent misrepresentation and latent defect.

The motion judge granted partial summary judgment for rescission and equitable damages against the seller.

The appellants (seller and co-defendants) argued errors in the finding of fraudulent misrepresentation, latent defect, and the appropriateness of partial summary judgment given a pending conspiracy claim.

The Court of Appeal dismissed the appeal, affirming the motion judge's finding of fraudulent misrepresentation based on the seller's failure to disclose safety risks and false representations, and upheld the partial summary judgment, finding no risk of inconsistent findings between corporate and personal liability for fraud.

The appellant's action for defamation and professional misconduct against the College of Traditional Chinese Medicine Practitioners and Acupuncturists of Ontario and its counsel was dismissed under Rule 2.1.01(1) as a collateral attack on a prior professional misconduct decision and for lack of jurisdiction.

The appellant appealed, arguing the dismissal lacked "substantial" motion record support and that the decision should have been stayed.

The Court of Appeal dismissed the appeal, affirming the motion judge's decision that the claim was frivolous and devoid of merit, and clarifying that Rule 63.01(1) only applies to monetary orders, not license suspensions.

The Crown appealed a trial judge's decision to declare a mistrial in a sexual assault case after conviction but before sentencing.

The trial judge had admitted fresh evidence of the accused's subsequent acquittal on similar fact charges, believing it rendered the similar fact evidence inadmissible retrospectively.

The Court of Appeal found that the trial judge erred in misinterpreting the Supreme Court's decision in R. v. Mahalingan, which clarified that issue estoppel does not operate retrospectively to render evidence inadmissible in an earlier completed trial, even if sentencing has not occurred.

The Court also found that it had jurisdiction to hear the appeal under s. 676(1)(b) of the Criminal Code because the trial judge failed to exercise jurisdiction on legally valid grounds by not proceeding to sentencing.

The appeal was allowed, and the matter remitted for sentencing.

The appellant, Gordon Morin, appealed his conviction and sentence for multiple counts of abuse against his domestic partner.

The Court of Appeal for Ontario allowed the conviction appeal, ordering a new trial.

The trial judge erred by improperly using the complainant's prior consistent text messages as corroborating her in-court testimony and contradicting the appellant's evidence, in violation of the hearsay rule and the rule against self-corroboration.

The trial judge failed to instruct herself on the permissible and impermissible uses of these statements, which was critical in a case turning on credibility.

The appellant was convicted of sexual assault based on a 1983 incident, with identity being the central issue.

The complainant identified the appellant by voice, not sight.

The appeal argued that the trial judge erred by failing to provide an adequate eye-witness identification caution and an insufficient voice identification caution.

The Court of Appeal found that both cautions were essential given the frailties in the identification evidence, including the historical nature of the allegations and the complainant's limited observation.

The court concluded that the errors were not harmless and could have affected the verdict.

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

Travelers Insurance Company of Canada appealed the dismissal of part of its subrogated claim for payment from proceeds of crime forfeited to the Crown.

The core issue was whether Travelers had an interest in the forfeited property by way of a constructive trust due to the Crown's erroneous failure to include Travelers' subrogated claim (Xpertdoc) in the initial restitution order.

The Court of Appeal found that the Crown's erroneous omissions, combined with the near certainty that restitution would have been made, amounted to unjust enrichment, supporting a constructive trust in Travelers' favour.

The appeal was allowed, and Travelers was granted relief from forfeiture for the full amount of the Xpertdoc claim.

The appellant, Rajindra Becessar, appealed his conviction for firearm possession, challenging a pre-trial ruling that admitted his statement to police.

The application judge had found breaches of the appellant's s. 8 (search) and s. 10(b) (right to counsel) Charter rights, excluding evidence from the search but admitting the statement.

On appeal, Becessar argued the statement should have been excluded due to the cumulative effect of the breaches, specifically that it was obtained in a manner infringing his s. 8 rights.

The Court of Appeal dismissed the appeal, finding that this argument was not properly raised or supported with evidence before the application judge, thus she made no error in her analysis.

The appellant, Chad Michael Kennedy, appealed his convictions for arson, criminal harassment, uttering death threats, possession of an explosive substance, disobeying a court order, and breaches of probation, as well as his global sentence of 28 months.

The appeal primarily focused on the reliability of eyewitness identification and alleged inconsistencies with video evidence regarding the arson charges.

The Court of Appeal found that the trial judge properly cautioned himself regarding eyewitness testimony and adequately grappled with the alleged inconsistencies, concluding the video quality was too poor to contradict the eyewitness account.

The court also dismissed the sentence appeal, finding no error in principle.

The appellants appealed the sanction imposed by a motion judge for the respondents' civil contempt of a Mareva injunction.

The respondents had violated the injunction by encumbering a property and failing to place rental income in trust.

The motion judge imposed a fine and costs, with a conditional order to strike pleadings if not paid.

The appellants sought imprisonment and immediate striking of pleadings, arguing the sanction was inadequate and the costs award was too low.

The Court of Appeal dismissed the appeal, finding the motion judge's sanction proportionate and his discretion on costs appropriate, emphasizing that incarceration for civil contempt is rare and the contempt in this case was modest.

The Crown appealed the respondent's acquittal on multiple charges including assault and sexual assault.

The Court of Appeal found that the trial judge erred in law by adopting a "piecemeal" approach to assessing the evidence, specifically by discrediting the complainant's testimony before considering the probative force of a corroborating video.

This error might reasonably have had a material bearing on the acquittal.

The appeal was allowed, and a new trial was ordered on all counts.

This is an appeal from a disposition of the Ontario Review Board (ORB) concerning an individual found not criminally responsible for arson.

The appellant challenged the ORB's refusal to grant a cannabis exemption as part of his continued detention and privileges, arguing that cannabis use would be a harm reduction strategy for his cocaine use and was not linked to public safety risk.

The Court of Appeal upheld the ORB's decision, finding it reasonable and supported by evidence, including a link between cannabis use and the index offence, and that prior cannabis use did not curb cocaine use.

The appellant was convicted of seven counts of sexual assault, one count of assault with a weapon, and one count of assault.

He appealed on three grounds: the trial judge's treatment of the complainant's motive to fabricate, alleged "oath helping" to bolster the complainant's credibility, and the admission of electronic evidence.

The Court of Appeal dismissed the appeal, finding no error in the trial judge's assessment that the mere existence of family law litigation did not establish a motive to lie, no impermissible oath helping in the complainant's explanation for delayed reporting, and that the electronic evidence met the low bar for admission under the Canada Evidence Act and was not central to the credibility analysis.

The Crown appealed a lower court's decision to stay charges against the respondent, Elijah Jacques-Taylor, under section 11(b) of the Charter due to unreasonable delay.

The application judge found a net delay exceeding the 18-month Jordan ceiling, after deducting defence delay and a period for COVID-19 backlog.

The Crown argued errors in applying the contextual approach to initial date setting, failing to deduct delay from a co-accused's unavailability, and implying the Crown should have severed the respondent.

The Court of Appeal dismissed the appeal, affirming the application judge's findings that the contextual approach was correctly applied, delay from a co-accused is not automatically attributed to all, and the Crown had tools to address delay without necessarily severing.

The appellant sought leave to appeal his sentence for multiple driving offences, including impaired driving by drug, dangerous driving, impaired driving by alcohol, failure to stop at the scene of an accident, and driving while prohibited.

He received a global sentence of 46 months imprisonment, less credit, and a 10-year driving prohibition.

The Court of Appeal granted leave but dismissed the appeal, finding that the sentencing judge properly considered the principles of totality and proportionality.

The court rejected arguments that the judge failed to consider the principle of gradualism or imposed an excessive sentence, emphasizing the appellant's serious criminal record and the nature of the offences, especially in light of legislative changes increasing maximum penalties for driving offences.

The appellant, convicted of two counts of fraud over $5,000, appealed his sentence of two years' less one day imprisonment and two years' probation, along with forfeiture and a fine.

He argued the sentencing judge erred by not granting credit for presentence custody or time under restrictive bail conditions, and that the sentence was demonstrably unfit.

The Court of Appeal dismissed the appeal, finding no error in denying credit for presentence custody due to lack of causal connection to the fraud charges.

While acknowledging an error in the sentencing judge's assessment of the link for restrictive bail conditions, the Court found the conditions were not punitive enough to warrant mitigation.

The Court affirmed the fitness of the sentence, emphasizing the need for denunciation and deterrence for sophisticated frauds.

The appellant, convicted of four counts related to sexual luring of a child and sentenced to 3.5 years, appealed his conviction and sentence.

He argued his Asperger's Syndrome affected his testimony, but the trial judge had already considered this.

The Court of Appeal dismissed both the conviction and sentence appeals, finding no error.

The court also addressed a Kienapple conditional stay issue, correcting the trial judge's error by quashing the conviction on count 3 and entering a conditional stay, while lifting the stay on count 4 and entering a conviction, confirming the original sentence on count 4.

The appellant appealed his convictions for two counts of robbery, breaking and entering a dwelling house and committing robbery, and suffocating another person with intent to commit robbery.

The appeal raised two grounds: first, that the trial judge erred by not instructing himself on the frailties of eyewitness identification evidence, even when the witness purports to recognize someone known; and second, that the trial judge applied a different standard of scrutiny to the complainant's and the appellant's evidence when assessing credibility.

The Court of Appeal dismissed the appeal, finding that the complainant's extended interaction with the appellant reduced the chance of mistaken identity, and that the trial judge was entitled to weigh inconsistencies differently given their varying nature.