Matthew R. Gourlay

The appellant, Adel Arnaout, appealed from a dangerous offender designation and indeterminate sentence imposed after a second dangerous offender hearing.

He sought to set aside the designation and substitute a determinant sentence with a long-term supervision order, or alternatively, a fresh hearing.

The Court of Appeal upheld the sentencing judge's findings that a pattern of behaviour was established by the letter bomb incidents alone, that the conduct satisfied the brutality requirement under the Criminal Code, and that it was not reasonably possible to control the appellant's behaviour in the community, deferring to the sentencing judge's preference for expert psychiatric evidence.

The appeal was dismissed.

The appellant pharmacist appealed a penalty decision of the Ontario College of Pharmacists imposing a 14-month suspension and other remedial terms.

The appellant had been duped into filling thousands of fraudulent prescriptions for dangerous narcotics due to her failure to take basic professional steps.

The Divisional Court applied the appellate standard of review and found no error in principle, concluding that the penalty was not clearly unfit and was well within the range of reasonable outcomes given the colossal scale of the professional shortcomings.

The appeal was dismissed with costs awarded to the respondent.

The appellant, a traditional Chinese medicine practitioner, appealed his sexual assault conviction.

The appeal centered on whether the trial judge erred by introducing a new theory of liability (removal of a towel exposing genitals) late in the trial, which differed from the Crown's primary theory (vaginal examination).

The Court of Appeal found that the trial judge's introduction of this new theory, and subsequent conviction based on it, was unfair to the appellant as it constituted a drastic change made too suddenly and too late, prejudicing the defence.

The court held that while judges are not confined to parties' theories, trial fairness considerations may preclude new bases of liability inconsistent with how the case was litigated.

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

The appellant, a former elementary school teacher, appealed convictions for 16 counts of sexual offences and his sentence.

The appeal raised issues including the trial judge's curtailment of cross-examination regarding 'avoidance' and 'delayed disclosure' (collusion defence), the admission and alleged misapprehension of evidence about a principal's warning, and the application of the totality principle in sentencing.

The court found that the trial judge erred in impermissibly curtailing cross-examination on two counts (3 and 11), setting aside those convictions and ordering a new trial for them.

All other grounds of appeal against conviction were dismissed.

The sentence appeal was also dismissed, but the total incarceration period was reduced from 720 days to 630 days due to the two set-aside convictions.

The court also considered fresh evidence regarding collateral consequences of the convictions but did not reduce the sentence further based on them.

The appellant appealed an 8-year sentence for fentanyl trafficking, arguing it was unfit and that the sentencing judge failed to properly credit pre-sentence custody, including lockdown credit during the early COVID period.

The Court of Appeal found the 8-year sentence was not unfit given the aggravating circumstances of fentanyl trafficking.

However, the court agreed that the sentencing judge's reasons did not demonstrate proper credit for pre-trial custody.

The appeal was allowed in part, and the sentence was reduced by 204 days, reflecting a 1.5:1 credit for 136 days of pre-trial custody.

The court found no error regarding lockdown credit.

The appellants appealed a motion judge's decision striking out portions of their statements of defence.

The impugned pleadings referred to documents and communications from a judicial mediation, which the motion judge found were prima facie protected by settlement privilege.

The Divisional Court dismissed the appeal, holding that the motion judge correctly applied Rule 25.11 of the Rules of Civil Procedure.

The court affirmed that the respondents had not waived settlement privilege and that the justice of the case did not require an exception to allow the appellants to plead the privileged information to defend against breach of fiduciary duty claims.

The appellant, Richard Walker, sought leave to appeal his sentence for accessing, possessing, and making child pornography available.

He raised three grounds: (i) the trial judge erred in deeming lack of insight an aggravating factor; (ii) the trial judge erred in failing to reduce the sentence due to COVID-19 collateral consequences; and (iii) these errors rendered the sentence unfit.

The Court of Appeal dismissed the appeal, finding that lack of insight is distinguishable from lack of remorse and can be considered for future dangerousness, the trial judge correctly applied the law regarding COVID-19's minimal mitigating impact, and the sentence was fit given the gravity and nature of the child pornography offences, particularly the egregious content and victim ages.

A minor correction to the s. 161 order was made on consent.

The appellant appealed his conviction for possession of cocaine for the purposes of trafficking and sought leave to appeal his 53-month sentence.

The conviction appeal argued that the trial judge erred in allowing the Crown to cross-examine a defence witness (Christopher Small) on his knowledge of Charter s. 13 and Canada Evidence Act s. 5 protections, which the appellant claimed improperly impeached the witness's credibility.

The Court of Appeal found the cross-examination permissible because the defence had introduced the witness's motive for testifying, and the Crown's questions challenged the veracity of that explanation.

The sentence appeal sought a reduction based on potential deportation and the impact of COVID-19.

The court dismissed both appeals, finding the sentence was not excessive and the trial judge did not err in considering collateral consequences or COVID-19.

The applicant sought judicial review of an interlocutory decision by the Discipline Committee of the Ontario College of Pharmacists, which denied his request to stay a discipline hearing pending the resolution of parallel criminal proceedings.

The Divisional Court dismissed the application for judicial review on the ground of prematurity.

The court found no exceptional circumstances to justify reviewing the interlocutory decision before the administrative proceedings had run their full course, noting that the applicant's concerns about revealing his criminal defence strategy were generic and did not constitute irreparable harm.

The appellant, John McRae, appealed his conviction for second-degree murder and the life sentence with a 12-year parole ineligibility period for stabbing his son to death.

The appeal raised four grounds: the trial judge's failure to instruct the jury on provocation, errors in the Scopelliti and Corbett rulings regarding character evidence, an erroneous hearsay caution, and an excessive parole ineligibility period.

The Court of Appeal dismissed all grounds, finding no air of reality to the provocation defence, no significant prejudice from the character evidence rulings, the hearsay caution was not undermining, and the sentence was fit, including the application of the position of trust aggravating factor.

The appellant appealed convictions for assault, sexual assault, and uttering threats, and the custodial sentence.

The appeal against conviction argued the trial judge erred in applying R. v. W.(D.) by failing to find a reasonable doubt due to alleged inconsistencies in the complainant's evidence regarding the timing of disclosure to her brother.

The appeal against sentence argued it was excessive and that enhanced credit for COVID-19 conditions was warranted.

The Court of Appeal dismissed both appeals, finding no material inconsistency in the evidence and no error in the trial judge's W.(D.) analysis or the fitness of the sentence.

A young person convicted of sexual assault appealed on the basis that the verdict was unreasonable, arguing the trial judge illogically accepted selective parts of the accused's evidence while rejecting others due to intoxication.

The majority held the verdict was reasonable, finding the trial judge provided sound reasons for accepting some portions of the accused's evidence while rejecting others.

The appellant also challenged the constitutionality of s. 37(10) of the Youth Criminal Justice Act, which denies young persons the automatic appeal rights available to adults under s. 691 of the Criminal Code.

The majority upheld s. 37(10) as consistent with ss. 7 and 15 of the Charter, while Abella J. (with Karakatsanis and Martin JJ.) found it to be an unjustified breach of s. 15.

The appeal was dismissed, with Côté J. dissenting on the reasonableness of the verdict and declining to address the constitutional questions as moot.

The respondent, a Traditional Chinese Medicine practitioner, was acquitted of sexually assaulting three clients.

The Crown appealed, arguing the trial judge erred in assessing the relevance and probative value of a complainant's evidence regarding a phone call with the respondent, and in her similar fact evidence ruling.

The Court of Appeal dismissed the appeal, finding that the trial judge's determination on the reliability of the complainant's evidence was a finding of fact, not an error of law, and therefore not appealable.

The appellant appealed convictions for attempted murder, assault of a police officer with intent to resist arrest, and firearm offences.

The Court of Appeal allowed the appeals for attempted murder and assault police, finding the trial judge erred in inferring specific intent for attempted murder given the circumstances (distance, lack of motive, possibility of unintended target) and erred in convicting for assault police based on recklessness rather than specific intent.

The firearm convictions were upheld.

The aggravated assault charge, previously stayed, was remitted to the trial judge for conviction and sentencing.

The appellant appealed his convictions for assault, sexual assault, and forcible confinement, arguing the trial judge misapprehended the complainant's evidence regarding the timeline of events and failed to adequately address inconsistencies in her testimony.

The Court of Appeal dismissed the appeal, finding that the timeline discrepancy went only to the reliability of time estimates rather than core credibility, and that the trial judge had ample corroborating evidence to support his findings.

The applicant, a former justice of the peace removed from office for judicial misconduct involving sexual harassment, applied for judicial review of a panel's decision declining to recommend compensation for his legal costs.

The applicant argued he was denied procedural fairness by not having an oral hearing and that the panel's decision was unreasonable.

The Divisional Court dismissed the application, finding no requirement for an oral hearing on costs and concluding the panel reasonably weighed factors including the nature of the misconduct and the vexatious conduct of the applicant's counsel during the proceedings.

The applicant, convicted of second degree murder for killing his son, applied for bail pending his conviction and sentence appeal.

The Crown opposed bail solely on the public interest ground under s. 679(3)(c) of the Criminal Code.

The Court of Appeal granted bail, finding that the reviewability interest outweighed the enforceability interest.

The court noted the applicant's advanced age, health challenges, successful prior release history, and the strength of his appeal, particularly the trial judge's failure to instruct the jury on the partial defence of provocation.

The applicant requested a case management conference to seek a brief adjournment three days before the scheduled hearing, intending to introduce further materials on the issue of anti-black racism.

The responding parties did not consent.

The case management judge declined to convene a conference at this late stage, noting the matter had been pending for almost two years.

The applicant was permitted to bring a formal motion for an adjournment before the hearing panel.

A case management conference was held to schedule a review of a single judge's decision denying a proposed intervener's motion for leave to intervene as a party.

The parties agreed that the review would be heard in writing by a panel of the Divisional Court, and a schedule for the exchange of materials was established.

A case management conference was held to schedule the hearing of the application following the denial of a motion for leave to intervene.

The court directed that the application proceed by ZOOM videoconference on July 31, 2020, and provided detailed instructions for the electronic filing of materials, including factums, compendiums, and authorities.