Michael Davies

Five appellants were convicted of offences arising from a home invasion robbery.

The Crown's case alleged a planned robbery with violence, while the defence maintained the incident arose from a drug transaction that escalated when the victim produced a firearm.

The appellants appealed on grounds that the trial judge's conduct rendered the trial unfair, that jury selection instructions were inadequate, and that prior consistent statement instructions were deficient.

The Court of Appeal found that the trial judge's questioning of defence witnesses and extemporaneous comments during jury instructions created a cumulative appearance of bias toward the prosecution, seriously compromising the fairness of the trial.

The court allowed the appeal and ordered a new trial.

An appeal from an Ontario Review Board disposition detaining a not criminally responsible on account of mental disorder (NCRMD) accused in a secure forensic unit.

The appellant challenged the Board's finding that she posed a significant threat to the safety of the public.

The Court of Appeal found that the Board failed to properly apply the legal test for "significant threat" under section 672.5401 of the Criminal Code, which requires a serious risk of serious physical or psychological harm from criminal conduct.

The Board's reasons did not adequately analyze either the risk or gravity of psychological harm.

The appeal was allowed and a new hearing was directed.

The Crown applied for a firearms prohibition order under section 111(5) of the Criminal Code against the respondent, who had been found not criminally responsible on account of mental disorder for discharging a firearm with intent to wound or maim, possession of a firearm while prohibited, possession of ammunition while prohibited, and possession of prohibited devices.

The respondent had a significant criminal history including convictions for dangerous operation of a motor vehicle and unauthorized possession of prohibited or restricted weapons.

The court found that the respondent suffered from significant mental illness that, when untreated, led to violent conflict and resulted in him firing a shotgun at police officers.

The respondent lacked insight into his illness and indicated he would stop taking prescribed medication if given the choice.

The court granted the prohibition order for the maximum period of five years.

An appeal from an Ontario Review Board decision concerning whether the Royal Ottawa Mental Health Centre was required to notify the Board of a significant increase in restrictions on the appellant's liberty when she was transferred from the Secure Forensic Rehabilitation Unit (FRU) to the Secure Forensic Assessment Unit (FAU).

The appellant, found not criminally responsible in 2004, had been abusing substances while on the FRU, leading to the transfer.

The Board was divided on whether notice was required under s. 672.56(2) of the Criminal Code, but unanimously concluded that the transfer constituted the least onerous and least restrictive measure available.

The Court of Appeal dismissed the appeal, establishing a framework for determining when notice of significant increases in restrictions on liberty is required.

An appeal under Part XX.1 of the Criminal Code against a disposition of the Ontario Review Board dated April 6, 2017.

The appellant sought a conditional discharge and argued against residing in a group home, preferring to live with either his friend or stepfather.

The Court of Appeal found ample evidence supporting the Board's refusal to grant a conditional discharge and its requirement that the appellant continue residing in the group home.

The appeal was dismissed.

The appellant appealed a Consent and Capacity Board decision finding him incapable with respect to treatment with psychotropic medication.

The Board had limited the appellant's cross-examination regarding the side effects of Clozapine, ruling it irrelevant because the respondent physician had stated he intended only to administer Abilify (Aripiprazole), not Clozapine.

The Court of Appeal allowed the appeal in part, amending the Board's order to narrow the scope of authorized treatment to specifically "Aripiprazole" rather than all psychotropic medications, thereby curing the procedural fairness concern without requiring a new hearing.

The appellant appealed a Consent and Capacity Board decision upholding a Community Treatment Order (CTO).

The appellant argued the issuing physician failed to consult with the named health practitioners and that the substitute decision-maker had not signed the required undertaking when the CTO was issued.

The Superior Court found the Board's conclusion regarding consultation was reasonable.

However, the court held that the Board erred in law by not requiring the substitute decision-maker's undertaking to be in place before the CTO was issued.

The appeal was allowed and the CTO was quashed.

The appellant, an inpatient diagnosed with schizophrenia, appealed a Consent and Capacity Board decision finding him incapable with respect to treatment with anti-psychotic medication and incapable of managing his property.

The appellant argued the Board misapprehended evidence and reached unreasonable conclusions.

The Superior Court of Justice applied the reasonableness standard of review to the Board's findings of mixed fact and law.

The court found that the Board's conclusions regarding the appellant's inability to appreciate the reasonably foreseeable consequences of his decisions, due to his denial of illness and paranoid delusions, were reasonable and supported by the evidence.

The appeal was dismissed.

An appellant appealed a disposition decision of the Ontario Review Board dated June 7, 2016, which declined to modify the conditions of his detention order to provide broader community access privileges.

The appellant had been found not criminally responsible by reason of mental disorder for second degree murder and was detained at a mental health facility.

The appellant raised two grounds of appeal: first, that the Board failed to consider readily available and relevant information from the original NCR hearing; and second, that the disposition was unreasonable.

The Court of Appeal dismissed the appeal, finding that the Board's decision was reasonable and that the NCR hearing information was not material to the narrow issue before the Board regarding whether the appellant's risk could be managed through modified detention terms.

An appeal under Part XX.1 of the Criminal Code against a disposition of the Ontario Review Board dated May 13, 2016.

The appellant raised three grounds of appeal: (1) the Board failed to apply the Winko test in concluding the appellant remains a significant threat to public safety and failed to order an absolute discharge; (2) the Board erred in failing to order a conditional discharge; and (3) conditions should be amended to allow community living in Brockville rather than North Bay due to North Bay's inability to receive the appellant.

The Court of Appeal dismissed the first two grounds but allowed the appeal on the third ground, permitting the appellant to live in approved community accommodation in Brockville.

The appellant appealed his sentence of four years' imprisonment imposed after a re-trial for dangerous driving and failing to remain at the scene of an accident.

At his first trial, he had been sentenced to two years less a day.

The Court of Appeal found that the sentencing judge erred in principle by failing to consider the fitness of the original sentence before imposing a greater sentence, as the facts at the second trial were essentially the same.

The appeal was allowed and the original sentence of 18 months for dangerous driving and six months consecutive for failing to remain was restored.

The appellant was convicted of firearms and drug trafficking offences following a police investigation involving wiretaps.

He appealed his convictions, arguing he should not have been named as an 'other known person' in the initial wiretap authorization, and appealed his sentence of five years and seven months on the basis of the totality principle.

The Court of Appeal dismissed the appeal, finding the low threshold for naming a known party in a wiretap authorization was met and the global sentence was reasonable.

The appellants, two bar managers, appealed their convictions and sentences for aggravated assault after punching a customer who had been ejected from the bar.

The victim suffered devastating head injuries.

The Court of Appeal dismissed the appeals, finding that the trial judge reasonably identified the second assailant from video evidence and properly concluded the appellants acted in concert, making it unnecessary to determine which blow caused the injury.

The sentences of three and three-and-a-half years were upheld as fit.

The appellant was found not criminally responsible for minor assaults and detained at a minimum forensic unit.

Despite his ongoing marijuana use, he had no history of aggression while detained.

The Ontario Review Board ordered his transfer to a medium security unit to restrict his access to drugs and help him develop insight.

The Court of Appeal allowed the appeal, finding the transfer unreasonable because it was more restrictive of his liberty and there was no evidence linking his marijuana use to a risk to public safety while detained.

The plaintiff brought a motion to resolve outstanding issues regarding pre-judgment interest and costs following a settlement of a motor vehicle accident claim.

The court held that the recent amendment to the Insurance Act regarding pre-judgment interest was substantive and did not apply retroactively, meaning the 5% rate under Rule 53.10 applied.

The court also ordered the defendants to pay a portion of the costs the plaintiff incurred in a successful accident benefits arbitration, as the defendants benefited from the resulting deduction.

Finally, the court reduced the overall costs of the tort claim to ensure proportionality.

The appellant appealed his conviction for failing to comply with a breath demand.

At trial, where he was self-represented, the trial judge found the breath demand was lawful but provided no analysis or findings of fact regarding the arresting officer's grounds.

The Superior Court of Justice applied the principles from Sheppard, holding that the trial judge was required to provide clear reasons explaining why the officer had reasonable and probable grounds on both a subjective and objective basis.

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

The appellant appealed his convictions for drug trafficking and possession of proceeds of crime, arguing that his arrest lacked reasonable and probable grounds once evidence obtained from an illegal police entry into a condominium was excluded.

The Court of Appeal dismissed the conviction appeal, finding that the totality of the remaining circumstances provided sufficient grounds for the arrest.

However, the court granted leave to appeal the sentence and quashed the two-year probation order, as the Crown conceded it was illegal under s. 731(1)(b) of the Criminal Code.

The appellant appealed his convictions on two counts of assault causing bodily harm relating to his two-month-old infant, who suffered 12 rib fractures on two separate occasions.

The appellant argued the first verdict was unreasonable and the trial judge misapplied the W. (D.) principles, and that the second verdict involved an error in applying the test for implied consent during an attempt to administer CPR.

The Court of Appeal dismissed the appeal, finding the trial judge's factual findings reasonable, the W. (D.) principles properly applied, and that the force used during the alleged CPR was excessive, vitiating any defence of implied consent.

The appellant pleaded guilty to possession of child pornography and was sentenced to one year imprisonment and two years' probation.

He appealed his conviction, arguing his guilty plea was uninformed because he expected a 45-day sentence based on his counsel's advice.

He also appealed his sentence, arguing insufficient weight was given to his traumatic brain injury.

The Court of Appeal dismissed both appeals, finding the plea was valid as the appellant knew he faced a custodial sentence, and the sentencing judge had properly considered his medical condition as a mitigating factor.

The appellant appealed his conviction for sexual assault and sexual interference against a 13-year-old complainant.

The appellant argued the trial judge erred in admitting a hearsay statement from the complainant's sister and in accepting the mother's evidence regarding a change in the sisters' relationship.

The Court of Appeal found that while the trial judge erred in admitting the hearsay statement, the curative proviso applied because the trial judge explicitly stated he would have reached the same conclusion without it.

The court also found no error in the trial judge's acceptance of the mother's evidence.

The appeal was dismissed.