Melissa Adams

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 moving party defendants in a proposed class proceeding related to the 'Freedom Convoy' sought access to $200,000 of frozen escrow funds to retain counsel.

The funds were originally frozen by a Mareva injunction and a criminal restraint order, and were raised through crowdfunding platforms to support convoy participants.

The court dismissed the motion, finding that the funds were not the personal assets of the defendants and that the moving parties failed to provide full and frank financial disclosure to demonstrate impecuniosity or an inability to defend the action without access to the frozen funds.

This endorsement concerns the continuation of a motion by the plaintiffs to extend a Mareva Injunction and a cross-motion by certain defendants to dissolve it.

Due to the recent service of voluminous motion material, the plaintiffs requested an adjournment to review the material and conduct cross-examinations.

The court found the request reasonable and granted the adjournment, extending the existing injunction.

All matters were adjourned to a later date for a virtual hearing.

The court also noted a separate forfeiture application by the Attorney General of Ontario under the Civil Remedies Act, 2001, which is not intended to affect assets subject to civil judgment for class members.

This endorsement addresses multiple motions related to a Mareva injunction in a class proceeding concerning the 'Freedom Convoy' funds.

The court extended the Mareva injunction with modifications, adjourned motions to dissolve the injunction and amend the statement of claim, and granted a Toronto Dominion Bank interpleader motion to transfer funds to an escrow agent.

The decision also clarified the interplay between the civil Mareva injunction and criminal restraint orders, and addressed issues concerning cryptocurrency seized by police and funds held by a third-party fundraising platform, GiveSendGo LLC.

The court emphasized the importance of keeping separate proceedings distinct while managing related matters.

The plaintiffs brought a motion to extend an ex parte Mareva injunction previously granted against organizers and funders of the Freedom Convoy.

The injunction aimed to restrain the dissipation of assets for potential civil liability to Ottawa residents and businesses.

The court granted a temporary extension and modification of the injunction by consent, allowing certain funds to be transferred to an escrow agent, and adjourned the motion for a further hearing.

The decision emphasized the civil nature of the proceeding, separate from criminal processes.

Three family members appealed their convictions and sentences arising from a scheme to steal lottery tickets from customers at their family convenience store, one of which won a $12.5 million prize.

The Court of Appeal dismissed the conviction appeals, finding all verdicts were reasonable.

On sentence, the court reduced one appellant's custodial sentence from four to three years and reduced her restitution obligation, but otherwise upheld the sentences.

The court upheld the constitutionality of the mandatory minimum imprisonment provisions under s. 462.37(4) of the Criminal Code, distinguishing Boudreault on the basis that the fine in lieu of forfeiture regime targets offenders who possessed proceeds of crime, unlike the indiscriminate victim surcharge.

The s. 11(b) application was dismissed under the transitional exceptional circumstance provision from Jordan.

On the Crown's appeal, the court entered convictions against the acquitted co-accused on theft and possession counts and ordered a new trial on fraud and possession of proceeds counts.

The appellant appealed a second degree murder conviction arising from a fatal stabbing and challenged the admission of his police statement, the exclusion of images from the deceased’s phone, and the jury charge on bad character evidence.

The Court of Appeal held that s. 146(2) of the Youth Criminal Justice Act was not triggered because the appellant was neither detained nor subject to reasonable grounds for belief that he committed the offence when interviewed, and the statement was voluntary under the confessions rule.

The court also upheld the exclusion of phone images as minimally probative and unduly prejudicial, and found no error in the limiting instruction on bad character evidence.

On sentence, the court upheld the adult life sentence, finding no error in the sentencing judge’s factual findings, YCJA analysis, or treatment of IRCS, and rejected the proposed fresh evidence as lacking cogency.

The Crown appealed an acquittal on dangerous driving causing bodily harm under section 249(1) of the Criminal Code.

The Crown argued that the trial judge erred in his analysis of the mens rea component by relying on the respondent's lack of deliberate intention to create danger and failed to consider all relevant circumstances.

The Court of Appeal upheld the acquittal, finding that the trial judge correctly applied the established test from Supreme Court jurisprudence, properly considered whether the respondent had deliberate intention to cause danger, and appropriately applied the modified objective test in concluding there was no marked departure from the standard of care of a prudent person.

The Crown appealed a sentencing decision in which the trial judge refused to impose a section 161 Criminal Code prohibition order against a respondent convicted of sexual assault and sexual interference.

The respondent had been found guilty of more than twenty acts of sexual intercourse with his step-daughter over a 2.5-year period when she was between six and eight years old.

The trial judge imposed a 6.5-year sentence but declined the prohibition order, citing concerns about personal liberty.

The appellate court found that the trial judge failed to adequately consider the respondent's continued risk to children and imposed a tailored section 161 prohibition order for 15 years from release.

The appellant was convicted of possession of child pornography under s. 163.1(4) of the Criminal Code and acquitted of making child pornography available under s. 163.1(3).

The appellant appealed his conviction on Charter grounds, arguing that the search of his residence and computer violated s. 8 of the Charter.

The Crown conceded the search was unlawful but argued the evidence should not be excluded under s. 24(2).

The Crown also appealed the acquittal on the making available count, arguing the trial judge erred in applying the mens rea requirement.

The court dismissed the appellant's conviction appeal and allowed the Crown's appeal, ordering a new trial on the making available count.

The Crown appealed the trial judge's decision to grant a directed verdict of acquittal on charges of aggravated assault and obstruction of justice.

The respondent was accused of pushing the complainant down exterior stairs at a bar.

The trial judge found that the Crown had not met its burden of proof beyond a reasonable doubt based on circumstantial evidence from security camera footage that did not capture the critical moment.

The Court of Appeal found that the trial judge erred in applying the test for directed verdict by weighing inferences rather than determining whether any evidence existed upon which a reasonable jury could convict.

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

The Crown appealed a sentence imposed by the trial judge, specifically challenging a fine in lieu of forfeiture of $20,000.

The respondent was convicted of producing and selling child pornography through a corporation he controlled, generating gross sales proceeds of $946,391.25, with agreed net proceeds of $797,809.47.

The trial judge calculated the fine based only on the respondent's salary attributable to child pornography production, rather than the full proceeds of crime.

The Court of Appeal allowed the Crown's appeal, finding that the trial judge erred in this calculation and that the full gross sales proceeds constituted proceeds of crime under the Criminal Code.

The court substituted a fine in lieu of forfeiture of $797,809.47, with eight years from expiry of the imprisonment sentence to pay, and a default sentence of four years consecutive imprisonment.

The appellant was convicted of several gun-related charges arising from a single incident in which he allegedly discarded a loaded handgun while fleeing from police.

The Crown's case relied on police testimony that the appellant appeared to have a gun and dropped it near where he was tackled, with the gun found in close proximity and a magazine still in his hand.

The defence argued the gun belonged to another individual who had placed it at the location.

The jury convicted on all counts save one, and the trial judge imposed an effective sentence of 43 months.

The appellant appealed both conviction and sentence on three grounds: improper jury selection procedures, prejudicial comments by the trial judge regarding defence counsel's opening, and inadequate jury instructions on credibility assessment.

The Court of Appeal dismissed all grounds of appeal.

The appellants were convicted of second degree murder, attempted murder, and aggravated assault following a drive-by shooting that occurred after they were robbed at a flea market.

They appealed their convictions on multiple grounds, including the jury selection process, the trial judge's refusal to leave self-defence and provocation with the jury, jury instructions, and evidentiary rulings.

The Court of Appeal dismissed the conviction appeals, finding no reversible errors.

However, the Court allowed the sentence appeals, reducing the periods of parole ineligibility and the sentences for attempted murder and aggravated assault, as the trial judge had erred in principle by exceeding the Crown's sentencing position without notice and failing to give adequate weight to the appellants' youth and rehabilitative prospects.

The appellant was convicted of first-degree murder following a home invasion.

The Crown's case relied on text messages, circumstantial evidence, a jailhouse informant, and an in-court identification by the victim's mother made for the first time during cross-examination.

The appellant appealed the conviction, arguing the trial judge erred in his instructions to the jury regarding the eyewitness identification and the jailhouse informant.

The Court of Appeal allowed the appeal, finding that the trial judge's instruction on the eyewitness identification evidence constituted a fatal misdirection by failing to highlight the specific dangers of the delayed, in-court identification.

A new trial was ordered.

The appellant was convicted of multiple historical sexual offences and assault causing bodily harm against two of his daughters.

At trial, extensive evidence of the appellant's uncharged violent behaviour and strict discipline was admitted without objection.

The trial judge failed to provide a promised limiting instruction prohibiting propensity reasoning based on this bad character evidence.

Furthermore, the trial judge failed to instruct the jury that they could not use the evidence of one complainant to bolster or confirm the credibility of the other.

The Court of Appeal found these omissions constituted errors in law, allowed the appeal, quashed the convictions, and ordered a new trial.

The appellant appealed his convictions for possession of child pornography, arguing the trial judge erred in admitting images found on his computer.

A computer repair technician discovered the images and called police, who viewed them without a warrant before seizing the computer.

The trial judge found breaches of section 8 of the Charter but admitted the evidence under section 24(2), noting the reduced expectation of privacy at a repair shop and the high reliability of the evidence.

The Court of Appeal dismissed the appeal, finding no error in the trial judge's section 24(2) analysis.

The appellant appealed his convictions for firearms and drug trafficking offences, arguing the trial judge erred in dismissing his s. 8 Charter application.

He challenged the validity of search warrants executed at his apartment, arguing there was insufficient evidence to support the general warrant after excising unreliable informant information, and that the warrant's terms were too broad.

The Court of Appeal found the trial judge reasonably accepted the police officer's opinion that surveillance corroborated the informant's information.

The court also held the warrant contained sufficient terms and conditions.

The appeal was dismissed.

The appellant was convicted of knowingly violating a condition of his Long Term Supervision Order prohibiting him from viewing pornography, after being caught watching a pornographic program at his half-way house.

On appeal, he argued the trial judge erred by fast-forwarding through parts of the DVD and by applying an objective standard of mens rea.

The Court of Appeal dismissed the appeal, finding the trial judge properly considered the context of the program and correctly found the appellant had subjective knowledge that he was watching pornography.

The appellant appealed his convictions for breaching bail conditions and possessing devices intended for forging credit cards.

The trial judge found the appellant continued his previous credit card forgery business under a new name while on bail.

The Court of Appeal upheld most convictions, finding it reasonable to infer the appellant possessed the materials and knew their intended use based on his prior operation.

However, the court quashed one conviction related to card printers, as there was no evidence they could be adapted for encoding.

The global sentence of 3.5 years was maintained due to the appellant's extensive criminal record and need for specific deterrence.