Matthew R. Gourlay

The defendant pleaded guilty to two counts of possession of child pornography contrary to s. 163.1(4) of the Criminal Code.

At sentencing on April 25, 2013, the court imposed a Sex Offender Information Registration Act (SOIRA) order for 10 years.

The Crown subsequently applied to amend the order to life, as required by s. 490.012(2.1) of the Criminal Code for convictions of two separate offences under s. 163.1(4).

The defendant argued the court was functus officio and lacked jurisdiction to amend.

The court held that s. 490.012(4) of the Criminal Code retained jurisdiction to correct the mistaken order and that the common law doctrine of functus officio did not apply to mandatory ancillary orders.

The SOIRA order was amended to life.

The appellant appealed his conviction and sentence, arguing that the Crown's improper cross-examination rendered the trial unfair.

The Court of Appeal agreed, finding that the Crown improperly and repeatedly cross-examined the appellant about his co-accuseds' motives to fabricate their testimony.

The trial judge failed to provide an adequate correcting instruction and instead reinforced the improper questioning in his summary of the evidence.

As credibility and identification were central to the case, the court found an appearance of unfairness and inferred actual prejudice.

The appeal was allowed and a new trial was ordered.

The defendant pleaded guilty to possession of child pornography following a major police investigation into international child pornography distribution.

The defendant's collection comprised over 100,000 photographs and 1,900 movies of child pornography across multiple devices.

The court imposed a sentence of 15 months in custody, with a strong recommendation for placement at the Ontario Correctional Institute in Brampton to facilitate continued treatment.

The defendant was placed on probation for three years with extensive conditions, including restrictions on internet and electronic device access, prohibition from seeking employment involving children, DNA registration, and firearm prohibition.

The appellant was convicted of sexual interference but acquitted of invitation to sexual touching and sexual assault in relation to a single incident with a young complainant.

On appeal, the appellant argued the verdicts were inconsistent and therefore unreasonable.

The Court of Appeal dismissed the appeal, finding the verdicts were supportable based on the trial judge's instructions, which directed the jury to consider each charge separately and distinguished between the 'touch' requirement for sexual interference and the 'force' requirement for sexual assault.

Following a jury conviction for possession of heroin for the purpose of trafficking, a document was discovered in the jury room containing excerpts from an online article criticizing a high-profile acquittal and model jury instructions from the Canadian Judicial Council.

The accused sought a mistrial or stay of proceedings, alleging juror misconduct and a violation of their Charter rights after it appeared that at least one juror had consulted external legal materials contrary to the trial judge’s instructions.

The court held it lacked jurisdiction to grant a mistrial or stay after the jury had been discharged, as the trial judge was functus officio except in narrow circumstances not present here.

However, relying on appellate authority recognizing the ability to create an evidentiary record for appeal, the court concluded it retained jurisdiction to conduct a limited post-verdict inquiry into extrinsic influences affecting the jury.

Because the document suggested independent legal research and potential dissemination among jurors, an inquiry was ordered while preserving the jury secrecy rule.

The appellant physician was found guilty of professional misconduct involving sexual abuse of young boys.

He appealed the Discipline Committee's decision, arguing that the summons power under s. 76(1) of the Health Professions Procedural Code violated his s. 8 Charter rights against unreasonable search and seizure, and that the College's delay in prosecuting the case amounted to an abuse of process.

The Court of Appeal dismissed the appeal, holding that the summons power is constitutional in the regulatory context as it is properly constrained by relevance and privilege.

The Court also found that the delay was not inordinate given the concurrent criminal proceedings, and the appellant did not suffer significant prejudice.

The appellant appealed his convictions for careless storage of a firearm and his sentence of 12 months' imprisonment and a five-year weapons prohibition.

The Court of Appeal dismissed the conviction appeal, finding the trial judge properly instructed the jury on the marked departure standard of care.

The sentence appeal was allowed, as the trial judge erred in treating rehabilitative prospects as a neutral factor and failed to explain why consecutive sentences were justified.

The sentence was varied to time served and the prohibition order was reduced to two years.

The appellant appealed his convictions for sexual assault and choking to assist in the commission of an indictable offence.

He argued the trial judge applied differing levels of scrutiny to the evidence and erred in drawing an adverse inference regarding the late disclosure of an extortion letter.

The Court of Appeal dismissed the appeal, finding the trial judge carefully analyzed the evidence, sufficiently explained her credibility findings, and had already concluded the appellant was not believable before addressing the extortion letter.

The Crown brought an application to admit evidence of three prior incidents of discreditable conduct by the accused at his trial for arson.

The Crown argued the evidence was admissible to rebut innocent association, counter third-party propensity, corroborate an unsavoury witness, show a pattern of behaviour, and complete the narrative.

The court applied the principled approach from Handy and found that the probative value of the evidence was limited, partly due to collusion between witnesses, and was outweighed by its prejudicial effect.

The application was dismissed.

The accused, charged with second degree murder, conspiracy to commit arson, arson causing bodily harm, and arson with intent to defraud in relation to a fatal business fire, challenged the Crown’s attempt to introduce numerous out‑of‑court statements under the co‑conspirators’ exception to the hearsay rule.

The court reviewed the Carter three‑stage test governing admissibility and considered whether a pre‑trial voir dire was required to assess whether the statements were capable of falling within the exception and whether they satisfied the principled approach to hearsay, including necessity and reliability.

The judge held that a voir dire was appropriate where the defence raised credible concerns about whether statements were made in furtherance of a conspiracy or where the availability of declarants raised necessity issues.

Several statements were admitted as capable of meeting the Carter requirements, particularly where declarants were deceased or unavailable and the statements furthered either the alleged arson conspiracy or a post‑offence cover‑up.

Statements attributed to an available witness with significant credibility concerns were excluded because the necessity and reliability requirements of the principled approach were not met.

The appellant brought a motion to re-open his previously dismissed appeal against a robbery conviction.

The motion was based on the Crown's failure to disclose a partially vetted jury panel list at trial.

The Court of Appeal expressed doubt about its jurisdiction to re-open an appeal already decided on the merits.

Regardless, the court found no miscarriage of justice, as the non-disclosure did not impact the jury's impartiality or prejudice the appellant's right to make full answer and defence.

The motion was denied.

The appellant was convicted of sexual assault and sexual assault with a weapon against his wife.

At trial, a police officer gave lay opinion evidence that a mark on the appellant's finger was a bite mark, corroborating the complainant's testimony.

On appeal, the appellant sought to introduce fresh evidence from a forensic dentist concluding the mark was not a bite mark.

The Supreme Court of Canada allowed the appeal and ordered a new trial, finding that while the due diligence criterion was not met, the fresh evidence was sufficiently cogent that it could reasonably be expected to have affected the trial judge's credibility assessment and the ultimate verdict.

The appellant appealed his conviction for sexual offences, arguing the trial judge erred in admitting the evidence of two complainants as similar fact evidence due to potential collusion.

The Court of Appeal found the trial judge thoroughly and correctly addressed the possibility of collusion, both as deliberate concoction and as the potential impact of their discussions on the independence of their evidence.

The trial judge's finding that the evidence was not the product of concoction was upheld.

The appeal was dismissed, with the Court noting the case against the appellant was overwhelming.

The Crown appealed the sentence of two years less a day plus probation imposed on the respondent for serious offences committed while in a position of trust.

The sentencing judge recognized that the primary sentencing goals were denunciation and general deterrence, and that the usual range was a penitentiary term in the mid to upper single digits, but identified particular circumstances justifying the lower sentence.

The Court of Appeal found no error in principle or improper weighing of factors and dismissed the appeal.

The applicant sought bail pending appeal of his convictions.

The Crown conceded the appeal was not frivolous and the applicant was not a flight risk, but opposed bail on public interest grounds.

The applicant's appeal grounds relate to the trial judge's refusal to order disclosure of police investigations into two key police witnesses, one of whom was subsequently charged with perjury.

The Court of Appeal granted bail, finding sufficient merit in the appeal grounds to temporarily suspend enforcement of the sentence, and ordered the appeal to be case managed for expeditious resolution.

The appellant, a lawyer, appealed a conviction for criminal contempt arising from a sentencing submission that inadvertently misled the trial judge regarding her client's pre-sentence custody status.

The trial judge found that the actus reus of contempt was established and placed the burden on the appellant to purge the contempt with an explanation and apology, which he ultimately rejected.

The Court of Appeal allowed the appeal and entered an acquittal, holding that the trial judge erred by failing to properly assess whether the Crown had proven the requisite mens rea beyond a reasonable doubt, and finding that the record did not support a finding of intentional or reckless conduct.

The appellant, who was 17 at the time of the offence, appealed his conviction for second degree murder arising from a robbery.

He argued the trial judge erred in instructing the jury on the defence of intoxication, the common sense inference, and the use of bad character evidence obtained during a 'Mr. Big' undercover operation.

The Court of Appeal found that the jury instructions, read as a whole, adequately conveyed the necessary legal principles regarding intoxication and intent.

The Court also held that the failure to give a standard limiting instruction on bad character evidence was not a reversible error given the defence's tactical reliance on that evidence to impugn the reliability of the appellant's confession.

The appeal was dismissed.

The appellant appealed his convictions and sentence after pleading guilty to assault causing bodily harm, assault, and three counts of breaching release orders.

He argued his guilty pleas were invalid because they were coerced and uninformed.

The Court of Appeal dismissed the conviction appeal, finding the pleas were voluntary, unequivocal, and informed based on the trial record and fresh evidence.

However, the Court allowed the sentence appeal, finding the trial judge erred in principle by overemphasizing denunciation and deterrence at the expense of rehabilitation.

The sentence was varied to time served (nine months) followed by two years of probation.