Matthew R. Gourlay

The appellant was convicted of drug trafficking following a search of his residence conducted pursuant to a warrant issued under the Controlled Drugs and Substances Act.

The warrant did not specify a date for execution but authorized entry "at any time." The appellant appealed, arguing the warrant was invalid because it failed to specify an execution date, rendering the search a violation of Charter rights against unreasonable search and seizure.

The Court of Appeal upheld the conviction, finding that while the warrant did not expressly state an execution date, an execution date could be implied from the date of issuance.

The court rejected the appellant's characterization of the warrant as expressly non-expiring and held that the absence of an express date was a technical fault that did not invalidate the warrant.

The appellants, owners of property within Wychwood Park, a residential community in Toronto, challenged their obligation to pay annual levies for maintenance and taxes of common property pursuant to a 1891 trust deed.

The respondent trustees sought to recover unpaid levies from 2010-2013.

The appellants invoked the common law rule that positive covenants do not run with freehold land.

The Court of Appeal for Ontario held that the positive covenant obligation was not enforceable against the appellants, as neither the "benefits and burdens" exception nor the "conditional grant" exception to the positive covenant rule applied under Ontario law.

The court affirmed that the Amberwood precedent, which rejected adoption of these exceptions in Ontario, remained binding.

The appellants, owners of property in Wychwood Park, Toronto, challenged their obligation to pay annual levies under an 1891 trust deed governing common property in the residential community.

The appellants argued that the positive covenant to pay levies does not run with freehold land under Ontario law.

The trial judge dismissed the trustees' claim, accepting the positive covenants argument.

The appeal judge reversed, holding that both the benefit and burden exception and the conditional grant exception to the positive covenants rule apply under Ontario law.

The Court of Appeal allowed the appeal, holding that the appeal judge erred by failing to follow binding precedent in Amberwood Investments Ltd. v. Durham Condominium Corp. No. 123, which established that neither exception forms part of Ontario law.

The court found that the grants of benefit in the trust deed were not framed as conditional upon payment of the levy, and therefore the conditional grant exception did not apply.

On appeal from a Superior Court decision granting a sending order under the Mutual Legal Assistance in Criminal Matters Act (MLACMA) to send seized evidence to Belgium.

The appellants sought to include terms and conditions in the sending order to restrict disclosure of commercially sensitive information about cyclotron design and manufacture to a state-owned competitor.

The Court of Appeal dismissed the appeal, holding that the sending judge did not err in refusing to impose such restrictions.

The court found that the Treaty between Canada and Belgium, combined with MLACMA, adequately protects against improper use and disclosure through the Minister's supervisory role and the Treaty's restrictions on use and disclosure.

The appellant was convicted of sexual offences against a 10-year-old male complainant following a judge-alone trial.

The trial judge convicted the appellant of sexual misconduct during the period December 2012 to August 2013 and on October 21, 2013, but acquitted on charges relating to August 6, 2013.

On appeal, the appellant challenged the trial judge's reasoning, arguing she failed to explain how she could accept the complainant's evidence on some counts while rejecting it on others, that she improperly focused on credibility rather than reliability, and that she failed to consider the appellant's demeanour when confronted.

The Court of Appeal dismissed the appeal, finding the trial judge's reasons were adequate and went beyond reliance on demeanour alone.

The appellant appealed his conviction for possession of fentanyl for the purpose of trafficking and sought leave to appeal his sentence of 48 months' imprisonment.

Following a search warrant execution, police found five 100 microgram fentanyl patches and other drugs.

The appellant pleaded guilty to simple possession but the Crown rejected this plea.

He was convicted after trial of possession for the purpose of trafficking based primarily on expert police opinion regarding the quantity.

The Court of Appeal found that the trial judge improperly abdicated his role by deferring entirely to the expert's opinion on the ultimate issue.

The conviction was set aside and substituted with a conviction for simple possession.

The sentence was reduced to one day of imprisonment in addition to time already served, as the appellant had already served over three years.

The appellant challenged an order permitting an FBI "clean team" to examine seized computer servers and prepare a report to assist the court in determining what material should be sent to the United States under the Mutual Legal Assistance in Criminal Matters Act.

The servers were seized pursuant to a valid search warrant in connection with an investigation into alleged copyright infringement.

The court held that while the application judge had jurisdiction under section 15(2) of the Act to make such an order, the application judge erred in failing to consider the effect on the appearance of fairness and judicial impartiality of having an entity closely associated with one of the adversaries examine the material and prepare the report.

The court set aside the order and held that any entity retained to assist the judge should be independent of the interested parties, absent compelling circumstances such as unique expertise.

The appellant physician appealed a Discipline Committee decision finding he committed professional misconduct by sexually abusing a patient and revoking his license.

The appellant argued the defence of officially induced error, abuse of process by the College Registrar, and that the mandatory revocation provisions violated section 7 of the Charter.

The Divisional Court dismissed the appeal on all substantive grounds, finding the sexual relationship was concurrent with the doctor-patient relationship and that the court was bound by Court of Appeal precedent upholding the constitutionality of mandatory revocation.

The court only allowed the appeal in part to vacate an order requiring the appellant to post security for the patient's potential future therapy costs.

The applicant physician sought judicial review of a decision by the Inquiries, Complaints and Reports Committee (ICRC) requiring him to complete a continuing education program and undergo a practice assessment.

The applicant argued he was denied procedural fairness because the ICRC relied on a second report from an assessor that was not disclosed to him.

The Divisional Court agreed, finding the failure to disclose the report breached procedural fairness.

The Court also held that the ICRC has the jurisdiction to order a practice assessment as part of a specified continuing education or remediation program.

The application was granted, the decision set aside, and the matter remitted for reconsideration.

The appellant appealed his conviction for assault causing bodily harm and sought leave to appeal his sentence.

The conviction arose from an assault on a fellow inmate at a detention centre.

The Crown's case relied on surveillance video and victim testimony.

The appellant was identified in the video as approaching the washroom area where the assault occurred and appearing to deliver a knee strike.

The trial judge instructed the jury that the appellant could be found guilty as either a joint principal or an aider.

The Court of Appeal found sufficient evidentiary basis for the jury instructions and dismissed the conviction appeal.

On sentencing, the appellant invoked the parity principle, comparing his 20-month sentence (reduced to 191 days after pre-disposition custody credit) to a co-accused's 18-month sentence.

The Court found the sentences were not comparable due to differences in culpability, criminal records, and mitigating factors, and dismissed the sentence appeal.

The appellant was convicted of possession of methamphetamine for the purpose of trafficking, possession of marijuana, and failing to comply with probation.

The drugs were found hidden behind a recessed light fixture in a basement closet of a residence where the appellant was sleeping.

The trial judge found the appellant in constructive possession based on circumstantial evidence, including his wallet and a letter in the bedroom.

The Court of Appeal held that the circumstantial evidence could not reasonably support an inference that the appellant had knowledge of the hidden drugs.

The appeal was allowed and acquittals were entered on all charges.

The applicant, a justice of the peace, sought judicial review of a Hearing Panel's decision removing him from office for judicial misconduct involving sexual harassment of female staff, and denying him compensation for his legal expenses.

The Divisional Court upheld the findings of misconduct and the penalty of removal, finding the panel's decisions reasonable given the applicant's lack of insight and the need to preserve public confidence in the judiciary.

However, the Court set aside the decision denying compensation for legal fees, finding the panel erred by presuming that a judicial officer found guilty of misconduct should not be compensated, and remitted that issue for reconsideration.

Following a successful appeal, the appellant sought trial costs of over $200,000.

The respondent opposed, arguing the appellant failed to provide detailed dockets and that costs should be reduced for various reasons, including the extra time required for a bilingual proceeding.

The Court of Appeal held that the appellant's costs outline provided sufficient detail and awarded partial indemnity costs.

The Court applied a 20% discount to the claimed fees, deducted costs for a motion the respondent had won, and excluded one unsupported disbursement.

The Court awarded the appellant $162,239.25 in trial costs and amended the previous appeal costs order to include $16,683.65 in disbursements.

The appellant was arrested for drug trafficking and subjected to a 'bedpan vigil' search authorized by a general warrant.

He was detained for 43 hours, handcuffed to cell bars, and experienced severe withdrawal symptoms without medical supervision.

The Court of Appeal held that while a general warrant can authorize a bedpan vigil search, the warrant was defective because it purported to authorize indefinite detention, violating the requirement to bring an arrested person before a justice without unreasonable delay.

The court also found the search was conducted in an unreasonable manner, violating the appellant's Charter rights.

The evidence was excluded under s. 24(2) of the Charter, the convictions were set aside, and an acquittal was ordered.

On a civil appeal arising from historic sexual and physical abuse allegations based largely on recovered memories, the court held that the trial judge erred by using expert psychological evidence to corroborate the truth of the respondent's allegations and resolve a credibility contest.

Expert evidence could explain memory processes and damages, but could not be used to decide the ultimate issues of credibility, reliability, and liability.

The court therefore set aside the judgment, dismissed the assault claim, and held that a new trial was unnecessary because the admissible evidence was evenly balanced.

The court also allowed the appellant's defamation counterclaim in part, finding that qualified privilege did not protect defamatory communications sent to a former friend who had no reciprocal interest or duty to receive them.

The applicants sought leave to appeal a Sending Order made under the Mutual Legal Assistance in Criminal Matters Act, which directed that seized records be sent to Belgium for a criminal investigation.

The applicants argued the application judge erred in law by holding he had no jurisdiction to attach terms and conditions to the Sending Order to protect their trade secrets and confidential information from commercial competitors.

The Court of Appeal granted leave to appeal, finding that the scope of the sending court's power to impose terms under s. 15 of the Act is an unsettled question of law of general importance.

The appellant appealed his convictions for trafficking cocaine and possession of proceeds of crime, as well as his 18-month sentence.

He had facilitated a $40 sale of crack cocaine to an undercover police officer.

At trial, he argued he was merely an agent of the purchaser.

The trial judge rejected this defence, finding his actions fell within the definition of trafficking under the Controlled Drugs and Substances Act.

The Court of Appeal upheld the convictions, noting the appellant located the seller, transported and delivered the drugs, and obtained the purchase price.

The sentence was also upheld as fit for a mature recidivist with a lengthy record of trafficking convictions.

The appellant was convicted of sexual interference and sexual assault after witnesses observed him repeatedly kissing an 11-year-old girl in his truck.

On appeal, the appellant argued the trial judge failed to adequately analyze whether the conduct was for a sexual purpose or occurred in circumstances of a sexual nature.

The Court of Appeal dismissed the appeal, finding the trial judge's conclusion that the repeated kissing between a 44-year-old man and an 11-year-old girl was of a sexual nature was supported by the evidence.

The sentence appeal was also dismissed.

The appellant, a dentist, was injured in a motor vehicle accident and claimed damages for future income loss, arguing her injuries prevented full-time clinical practice.

The jury awarded significantly less for future income loss than claimed.

The appellant appealed, arguing the award was inconsistent and that the trial judge erred in failing to instruct the jury regarding the propriety of pre-trial communications between her counsel and an expert witness.

The respondents cross-appealed on costs, assignment of collateral benefits, and prejudgment interest.

The Court of Appeal dismissed both the appeal and cross-appeal, finding evidence supported the jury's verdict, counsel had agreed to the jury charge regarding the expert witness, and the trial judge made no errors in her discretionary orders on costs, benefits, and interest.

The appellant appealed his convictions for sexual assault and breach of an undertaking, as well as a mandatory lifetime SOIRA order.

He argued the trial judge erred in admitting and relying on MSN messages to find consciousness of guilt and to reject his testimony.

The Superior Court dismissed the conviction appeal, finding the trial judge properly considered circumstantial evidence, including the content of the messages and the appellant's own testimony, to authenticate the electronic correspondence.

The court quashed the sentence appeal, concluding there is no statutory jurisdiction to appeal a mandatory SOIRA order made under section 490.012(1) of the Criminal Code.