Matthew R. Gourlay

Appeals by Richard Storey and Peter Cordeiro against convictions and sentences for offences under the Consumer Protection Act.

Both appellants were tried in absentia and convicted.

The original sentences imposed were significantly harsher than those sought by Crown counsel.

On judicial pretrial, the Crown and defence counsel agreed that the original sentences were unreasonable and would bring the administration of justice into disrepute.

The convictions were upheld on consent, but the sentences were substantially varied to reflect more proportionate terms of imprisonment, with concurrent rather than consecutive service, and restitution orders were imposed.

The appellant, a criminal defence lawyer, was convicted of smuggling drugs into the Toronto Jail for a former client during a professional visit.

On appeal, he argued that the trial judge applied uneven scrutiny to the evidence and erred in refusing to order the production of third party records relating to the prevalence of drug smuggling at the jail.

The Court of Appeal allowed the appeal, finding that the trial judge subjected the appellant's evidence to a stricter level of scrutiny than the Crown's evidence, and erred in concluding that the third party records were not likely relevant.

A new trial was ordered.

The appellant challenged convictions for sexual assault and sexual interference involving historic abuse of a child relative, and also appealed a six-year penitentiary sentence.

The court refused to admit fresh evidence consisting of a urologist's report because the proposed evidence merely bolstered unchallenged trial evidence and could not reasonably have affected the verdict.

Although the Crown's cross-examination about abortion risks was inflammatory and inappropriate, it did not render the trial unfair or cause a miscarriage of justice.

The court also held that the absence of a limiting instruction on one prior consistent statement was not fatal in light of the way prior statements were used at trial, and upheld the sentence as fit.

The appellants were convicted of possession of heroin for the purpose of trafficking and sentenced to nine years' imprisonment.

After the jury was discharged, it was discovered that the jury foreman had brought a document containing extraneous information into the jury room.

The appellants appealed their convictions, arguing that the juror misconduct caused a miscarriage of justice, that the trial judge failed to properly instruct the jury on post-offence conduct, and that the verdicts were unreasonable.

They also appealed their sentences.

The Court of Appeal dismissed the appeals, finding no reasonable possibility that the extraneous information affected the verdict, no error in the jury instructions or the dismissal of the directed verdict application, and that the sentences were fit.

The appellant appealed his sentence, arguing he was entitled to enhanced credit (1.5 to 1) for pre-sentence custody after his bail was revoked.

He had consented to his detention without a show cause hearing.

The Court of Appeal held that an accused whose prior form of release is cancelled under s. 524(8) of the Criminal Code is 'detained in custody' under that section, regardless of whether a separate detention order is made following a show cause hearing.

Consequently, the appellant fell within the exclusion in s. 719(3.1) and was not entitled to enhanced credit.

The appeal was dismissed.

The appellant creditor sought a declaration that the bankrupt's judgment debt survived his discharge from bankruptcy under s. 178(1)(d) of the Bankruptcy and Insolvency Act.

The trial judge dismissed the claim, finding that the bankrupt owed no fiduciary duty to the appellant, even though he had breached a fiduciary duty to a third party.

The Court of Appeal dismissed the appeal, confirming that s. 178(1)(d) applies only if the bankrupt owed a fiduciary duty directly to the creditor seeking the declaration.

The Crown appealed a judicial stay of proceedings granted at its own request during a pre-trial abuse of process motion.

The stay was requested after the motion judge ordered the production of communications between police investigators and Crown counsel, over which the Crown asserted solicitor-client privilege.

The Court of Appeal held that the Crown's appeal was not an abuse of process and that the motion judge correctly found no waiver of privilege by the police.

However, the Court concluded that the motion judge's disclosure order was premature, as solicitor-client privilege should only be abrogated as a last resort if a stay could not be granted without the privileged information.

The appeal was allowed and the matter remitted to the trial court.

The appellant appealed his conviction for sexual assault arising from an incident at a house party.

The complainant testified she was asleep when the sexual activity began, while the appellant testified she was awake and actively participated.

The trial judge convicted the appellant, finding the complainant was asleep and therefore could not consent.

On appeal, the Superior Court of Justice found the trial judge erred by failing to consider the defence of honest but mistaken belief in consent, which had an air of reality given the conflicting testimony and evidence of the complainant's intoxication, sleep-walking, and sleep-talking.

The trial judge also erred by failing to conduct a proper reliability analysis of the complainant's evidence in light of her alcohol consumption.

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

The appellant was convicted of manslaughter and arson-related offences after his hardware store was destroyed in a fire set by co-conspirators to collect insurance proceeds.

On appeal, he argued the trial judge erred in his Vetrovec warning regarding colluding witnesses, improperly admitted hearsay statements under the co-conspirator exception, and that the verdict was unreasonable.

He also appealed his 12-year sentence.

The Court of Appeal dismissed the conviction appeal, finding no error in the trial judge's instructions or evidentiary rulings, and held the verdict was reasonable.

The sentence appeal was also dismissed as the sentence was fit given the appellant's high degree of moral blameworthiness.

At a contempt sanction hearing arising from bankruptcy and fraudulent conveyance proceedings, the Trustee sought leave to withdraw the motion for further incarceration after obtaining new information that undermined the bona fides of the creditor applicants' underlying claims and disclosure.

The court held that only the Trustee had standing to enforce the contempt order within the fraudulent conveyance action, and that leave was required because contempt at the sanction stage is a matter between the court and the contemnor.

Applying the full and frank disclosure obligation governing ex parte relief, the court found material non-disclosure in obtaining the Mareva and Anton Piller orders and rescinded those orders.

Although the respondent debtor had not fully purged contempt, further incarceration was not warranted; the motion was withdrawn, Christina Chiang was found to have purged her contempt, and costs were awarded to the Trustee and Christina Chiang against the creditor applicants.

The appellants were convicted of multiple offences related to their involvement in a large-scale clandestine drug lab producing MDMA, ketamine, and methamphetamine.

They appealed their convictions, arguing insufficient evidence of production and identification, and their sentences of 14 and 16 years, arguing the trial judge erred by treating lack of remorse as an aggravating factor.

The Court of Appeal dismissed the conviction appeals, finding ample circumstantial and identification evidence.

While the Court agreed the trial judge erred in considering lack of remorse as an aggravating factor, it upheld the sentences as proportionate given the massive scale of the operation and the danger of the drugs produced.

The appellant was convicted of possession of a loaded prohibited firearm after a handgun was found in a closet in an apartment where he was staying.

He appealed the conviction, arguing the trial judge erred in her jury instructions regarding constructive possession and wilful blindness.

The Court of Appeal allowed the appeal and ordered a new trial.

The court found the trial judge erroneously instructed the jury that they could convict if the appellant 'ought to have known' about the gun, and improperly left wilful blindness as a basis for liability without also requiring proof of control over the weapon.

The appellant challenged convictions for sexual and related offences arising from allegations by a child complainant.

The Court of Appeal held that the trial judge erred in treating the complainant's utterances during a later seizure-like episode as independent corroboration, because they were not admissible for the truth of their contents under the hearsay and prior consistent statement rules.

The court further held that the Crown expert's opinion linking the episode to the alleged assault was inadmissible because it exceeded the expert's qualifications and depended on unproven foundational facts.

As the impugned evidence was central to the credibility assessment, the convictions were set aside and a new trial was ordered.

In a first degree murder appeal arising from a joint trial with antagonistic defences, the appellant's counsel was required to withdraw mid-trial and no replacement counsel could be found despite extensive efforts.

The trial judge refused severance or a mistrial and instead appointed amicus curiae with an expanded mandate.

The Court of Appeal held that the trial judge asked the wrong question, relied on unsupported considerations, failed to consider highly relevant factors, and thereby unreasonably exercised discretion under the interests of justice standard.

Amicus was not an adequate substitute for counsel in a complex murder trial, and the resulting loss of representation deprived the appellant of a fair trial and caused a miscarriage of justice.

The appellants were arrested in an undercover drug trafficking operation and experienced a delay of nearly two and a half years before trial.

They applied for a stay of proceedings under s. 11(b) of the Charter, which was dismissed by the application judge.

On appeal, the appellants argued the judge erred in allocating periods of delay and failing to penalize the Crown for tactical decisions.

The Court of Appeal adjusted the delay calculations but found the total delay still fell within the Morin guidelines.

The appeals against conviction and sentence were dismissed.

The appellants were convicted of fraud and conspiracy to commit fraud in relation to a high yield investment scam.

On appeal, they argued the trial judge erred in admitting expert profiling evidence, giving confusing jury instructions on conspiracy, and admitting preliminary inquiry evidence.

The Court of Appeal found the expert evidence was properly admitted and the preliminary inquiry evidence met the statutory requirements.

However, the trial judge erred in his conspiracy instructions by presenting it as an 'all or nothing' proposition and failing to properly explain the Carter stages.

The conspiracy convictions were set aside.

The court also reduced one appellant's restitution order by two-thirds to reflect the shared responsibility of all three co-accused.

The Crown appealed a stay of proceedings that prevented a fourth trial of the respondent for first degree murder.

The respondent's first trial resulted in a conviction that was overturned on appeal, and his second and third trials ended in hung juries.

At the second and third trials, the judge excluded evidence that a 911 call containing details known only to the killer had been traced to a payphone near the respondent's workplace.

The Court of Appeal held that the 911-trace evidence should have been admitted under the principled approach to hearsay, as it met the requirements of necessity and threshold reliability.

Because the Crown was denied a full opportunity to present its case due to the erroneous exclusion of this highly probative evidence, the Court found that a fourth trial would not constitute an abuse of process.

The stay was set aside and a new trial ordered.

The applicant, a police officer convicted of drug offences, sought disclosure of the identity of an anonymous tipster who emailed police post-conviction alleging misconduct by the applicant's supervising officers.

The Crown provided a redacted summary but claimed confidential informer and public interest privilege over the author's identity.

The Court of Appeal held that neither privilege applied, as there was no express or implied promise of confidentiality to the unsolicited tipster, and no objective evidence to support public interest privilege.

The Court further held that the Trotta test for production in support of fresh evidence was premature, as the motion was properly characterized as one for directions on the scope of Crown disclosure.

The application for disclosure was allowed.

The appellant appealed a conviction for uttering threats under s. 264.1 of the Criminal Code, arguing that the trial judge drew an unreasonable inference of animus from after-the-fact conduct and failed to apply the proper objective test for the actus reus of threatening.

The appeal court held that the inference of intent to intimidate from subsequent conduct was reasonable and properly open on the evidence.

Although the trial judge appeared to misunderstand the effect of a Supreme Court decision and did not expressly apply the governing objective test from leading authorities, the appellate court concluded that it could determine the legal issue based on the factual findings made at trial.

Applying the established objective test, the court found that a reasonable person would interpret the accused’s words and conduct as a threat of bodily harm.

The conviction was therefore upheld and the appeal dismissed.

The appellant appealed his convictions for firearm offences, arguing that the warrantless search of his vehicle's trunk violated his s. 8 Charter rights.

The police stopped the vehicle, and after the driver failed a roadside screening test, the vehicle was to be towed.

The appellant's nervous demeanor and dissociation from the vehicle led police to search the trunk, where they found a handgun.

The Court of Appeal assumed a s. 8 breach but applied the Grant framework, concluding that the firearm was admissible under s. 24(2) of the Charter due to the officers' good faith, the reduced expectation of privacy in an impounded vehicle, and society's interest in adjudicating serious gun offences.