Michael Code

The respondent sought costs following the dismissal of the Ontario Securities Commission's motion for leave to appeal under s. 131 of the Provincial Offences Act.

The Court of Appeal held that it lacked jurisdiction to award costs on the dismissal of such a motion.

Furthermore, the court noted that even if jurisdiction existed, the general rule in proceedings under the Act is that no costs are awarded against either party, and there were no circumstances justifying a departure from that rule.

The request for costs was denied.

The Ontario Securities Commission sought leave to appeal a Superior Court judgment that overturned the respondent's convictions for ten counts of tipping under the Securities Act.

The Superior Court had ordered a new trial based on the trial judge's inadequate assessment of the key witness's credibility and failure to consider each count independently.

The Court of Appeal refused leave to appeal, finding that the proposed grounds of appeal involved the application of well-established legal principles and did not raise questions of law essential in the public interest or for the due administration of justice as required by s. 131 of the Provincial Offences Act.

The appellants, former senior officers and directors of Hollinger Inc., appealed an order compelling them to submit to questioning by an Inspector appointed under the Canada Business Corporations Act.

They argued that being compelled to answer questions in Canada would violate their Charter rights against self-incrimination, as their answers could be used against them in ongoing criminal proceedings in the United States.

The Court of Appeal dismissed the appeal, finding that the appellants were not entitled to a constitutional exemption because the Canadian inquiry was fact-finding rather than prosecutorial.

The Court also declined to stay the order, noting that the application judge had established a procedure to rule on specific questions and craft protective mechanisms on a case-by-case basis.

The Crown obtained an ex parte order for a judicial investigative hearing under s. 83.28 of the Criminal Code in relation to the Air India bombings.

The application judge ordered the hearing to be held in camera and kept secret.

A newspaper reporter discovered the proceedings and sought access.

The hearing judge dismissed the application for access.

The Supreme Court of Canada allowed the newspaper's appeal in part, holding that the open court principle applies to s. 83.28 hearings.

While the initial ex parte application was properly held in camera, the existence of the order and the constitutional challenge should have been public.

The investigative hearing itself must be presumptively open, subject to the Dagenais/Mentuck test for publication bans or in camera orders.

The Crown sought an ex parte order under s. 83.28 of the Criminal Code to compel a Named Person to attend a judicial investigative hearing and answer questions regarding the Air India bombings.

The Named Person challenged the constitutionality of s. 83.28, arguing it violated the right against self-incrimination under s. 7 of the Charter and compromised judicial independence.

The Supreme Court of Canada upheld the provision, finding it procedural in nature, thus applicable retrospectively.

The Court held that s. 83.28 includes adequate safeguards, such as derivative use immunity, which must be extended to extradition and deportation hearings to comply with s. 7.

The Court also found that the provision does not compromise judicial independence, as judges retain their role in protecting the witness's constitutional rights.

The prosecution appealed the dismissal of its application for prohibition and certiorari to halt a securities prosecution.

The prosecution alleged the trial judge lost jurisdiction by interfering with its case presentation, failing to rule on evidence admissibility, and failing to restrain uncivil attacks by defence counsel.

The Court of Appeal dismissed the appeal, holding that the trial judge has inherent trial management power to direct the order of evidence and defer evidentiary rulings.

While defence counsel's conduct was uncivil and improper, the trial judge's response did not deprive him of jurisdiction or prevent a fair trial.

The appellant was convicted of conspiracy to import cocaine.

On appeal, he argued that the trial judge erred during the jury selection process by failing to adequately instruct the triers on the challenge for cause process and by interfering with his peremptory challenge rights.

The Court of Appeal agreed, finding that the triers were not instructed on the standard of proof or the need for unanimity.

Furthermore, the trial judge's failure to pre-screen prospective jurors for personal hardship forced counsel to waste peremptory challenges.

The appeal was allowed and a new trial ordered.

The accused were charged with multiple offences related to a cocaine-trafficking ring.

The Crown's case relied heavily on wiretap evidence obtained via an ex parte authorization supported by a lengthy police affidavit.

At trial, cross-examination revealed errors in the affidavit regarding confidential sources, leading the trial judge to reject the entire affidavit, exclude the wiretap evidence, and acquit the accused.

The Court of Appeal set aside the acquittals and ordered a new trial.

The Supreme Court of Canada dismissed the accused's appeal, clarifying that the investigative necessity requirement for wiretaps means there must be no other reasonable alternative method of investigation.

The Court held that the affidavit met this standard and that the trial judge erred in applying the standard of review by globally rejecting the affidavit instead of excising the erroneous information and considering whether sufficient reliable information remained to support the authorization.

The appellant challenged convictions arising from two closely similar bank robberies, arguing that the verdicts were unreasonable and that the trial judge erred in his treatment of identification, forensic hair evidence, and similar fact reasoning.

The court held that the eyewitness identification evidence on the Burlington robbery, together with the appellant's association with the getaway vehicle and limited after-the-fact conduct evidence, supported the verdict.

Although the trial judge used an anchoring rather than pooling approach to similar fact evidence, the court found no prejudice because the allegedly exculpatory Hamilton evidence did not materially undermine identification of the appellant.

The appeal from conviction and sentence was dismissed.

Joint criminal appeal from murder and attempted murder convictions arising out of a multiple-victim shooting in which both appellants admitted firing guns but relied principally on self-defence.

The court held that the trial judge committed multiple evidentiary and jury-charge errors, including admitting weak and highly prejudicial peaceful-disposition evidence from parents of deceased victims, admitting one witness's unsworn videotaped statement for its truth under the principled hearsay exception despite insufficient reliability safeguards, and improperly limiting the jury's use of translation evidence concerning another witness's adopted prior words.

The court further found errors in the treatment of after-the-fact conduct, co-accused bad character evidence, provocation, and the reopening issue.

Considering the cumulative effect of the errors, the curative proviso could not be applied.

A new trial was ordered on all charges.

The appellant appealed convictions for criminal negligence in the operation of a motor vehicle and assault with a weapon arising from a confrontation between police and occupiers of a provincial park claimed under an aboriginal treaty right.

The Court of Appeal rejected the argument that the trial judge misapprehended the evidence concerning intent and held the reasons must be read as a whole under the governing appellate framework.

The court further held that the defence of property under s. 41(1) of the Criminal Code was unavailable because the occupiers were not in peaceable possession and the force used by driving at police officers was neither necessary nor proportionate.

The defence of justification under ss. 27 and 30 also failed because the trial judge did not accept that the appellant acted to rescue the arrested band member.

Conviction and sentence appeals were dismissed.

The appellant challenged arson-related convictions arising from a house fire prosecuted entirely on circumstantial evidence, arguing among other things that the trial judge reversed the burden of proof by using the Hodge's case formulation to test the defence explanation for the fire.

The court held that the trial judge improperly required the accused to provide a reasonable explanation based on proven facts, rather than asking whether the Crown had proved guilt beyond a reasonable doubt.

That error required the convictions to be set aside and a new trial ordered.

Fresh evidence relating to the trial judge's earlier involvement in family proceedings was admitted but found insufficient to establish a reasonable apprehension of bias.

The accused appealed convictions for criminal negligence causing bodily harm and failing to remain at the scene of an accident arising from a parking lot incident where he claimed he was fleeing an assault.

The Court of Appeal held that the trial judge erred by permitting Crown cross-examination on the accused's failure, upon surrender and arrest, to complain to police about the alleged assault.

The court found that using the accused's silence to attack credibility and support an inference of recent fabrication violated s. 7 of the Charter.

The jury's questions and the contradictory instructions on silence demonstrated the significance of the error.

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

The appellants faced citizenship revocation proceedings for allegedly concealing their involvement in WWII atrocities.

Due to delays in the Federal Court Trial Division, a senior Department of Justice official met privately with the Chief Justice of the Federal Court to express concern.

The Chief Justice then spoke to the Associate Chief Justice handling the cases, who subsequently expedited the schedule.

The appellants successfully moved for a stay of proceedings on the basis that this ex parte communication compromised judicial independence.

The Federal Court of Appeal set aside the stay.

The Supreme Court of Canada dismissed the appellants' appeal, holding that while the appearance of judicial independence was significantly compromised, a stay of proceedings was not the appropriate remedy.

The Court directed that the cases proceed before a different judge, balancing the affront to judicial independence against society's pressing interest in seeing alleged war criminals brought to justice.

The appellant challenged both the common law rule allowing the Crown to raise insanity over an accused’s objection and the Criminal Code provision requiring automatic detention of an insanity acquittee pending the pleasure of the Lieutenant Governor.

The Court held that the common law rule violated s. 7 because it impermissibly deprived an accused of control over the conduct of the defence, and it reformulated the rule so that the Crown may generally raise insanity only after the trier of fact has otherwise concluded the accused is guilty, or where the accused has put mental capacity in issue.

The Court further held that s. 542(2) was intra vires Parliament’s criminal law power, but violated ss. 7 and 9 of the Charter because it mandated automatic, arbitrary, and indeterminate detention without a hearing and without standards.

The appeal was allowed, a judicial stay of proceedings was entered, and the declaration of invalidity was suspended for six months with interim detention limits.

The appellants were charged with conspiracy to traffic in cocaine.

At trial, evidence was led of three separate conspiracies, but the appellants were only involved in one (Phase II).

The appellants argued that the indictment charged a broader conspiracy encompassing all phases, and since they were not involved in Phase I, they should be acquitted.

The Supreme Court of Canada held that the indictment adequately specified the time and locations relevant to the Phase II conspiracy, giving the appellants reasonable notice of the charge.

The Crown proved the conspiracy charged, and the appeal was dismissed.

The appellant was convicted of aggravated assault based in part on wiretap evidence.

The trial judge admitted the evidence without opening the sealed packet.

The Court of Appeal opened and edited the packet but denied the appellant the right to cross-examine the affiant.

The Supreme Court of Canada allowed the appeal and ordered a new trial, holding that the appellant had established a basis to cross-examine the affiant because the affidavit was misleading regarding the use of a police informant, which bore directly on whether other investigative procedures were unlikely to succeed.

The appellant appealed his conviction for first degree murder, which was based on the murder occurring during a forcible confinement.

The Supreme Court of Canada dismissed the appeal, agreeing with the reasons of the majority in the Court of Appeal for Ontario.

The appellants were charged with conspiracy to commit extortion and related offences.

Following their committal, their trial was delayed for almost two years, primarily due to institutional problems and a lack of resources in the judicial district.

The appellants moved for a stay of proceedings, arguing their right to be tried within a reasonable time under s. 11(b) of the Charter had been infringed.

The Supreme Court of Canada held that the delay was clearly excessive and unreasonable, establishing a framework for assessing s. 11(b) claims that considers the length of delay, explanation for delay, waiver, and prejudice to the accused.

The appeal was allowed and a stay of proceedings was directed.

The appellants, Ministers of the Crown, were found guilty of contempt of court by the Federal Court of Appeal for failing to comply with an order to produce a file.

The order was served on their solicitor, but there was no evidence the Ministers had actual personal knowledge of it.

The Supreme Court of Canada allowed the appeal, holding that contempt of court requires proof beyond a reasonable doubt of actual knowledge of the order.

The Court found that service on a solicitor under the Federal Court Rules does not create a presumption of actual knowledge for the purposes of a quasi-criminal contempt proceeding, nor does vicarious liability apply to hold the Ministers responsible for the actions of their officials.