Michael Davies

The Crown appealed an acquittal on charges of impaired driving and operating a motor vehicle with excess blood alcohol.

The trial judge held that the arresting officer lacked reasonable and probable grounds to arrest and demand breath samples under the Criminal Code and excluded the intoxilyzer results under s. 24(2) of the Charter following a finding of a s. 8 breach.

On appeal, the court held that whether facts amount to reasonable and probable grounds is a question of law reviewable on a correctness standard.

The appeal judge found the trial judge erred by focusing on the absence of certain physical indicia of impairment rather than assessing the totality of the circumstances.

The officer’s observations, including erratic driving, failure to stop for police, and the odour of alcohol, met the threshold for reasonable and probable grounds.

The appellant appealed convictions for voyeurism and extortion arising from an internet-arranged sexual relationship and a secret recording of the complainant.

The court rejected the argument that the trial judge's reasons inadequately addressed credibility, holding that a trial judge need not resolve every alleged inconsistency in a witness's statements or conduct.

The court also rejected the submission that the trial judge failed to make the necessary finding concerning the meaning of 'surreptitiously' under s. 162 of the Criminal Code.

Assuming without deciding that the term includes an intent element, the court held the trial judge found the requisite intent.

The appeal was dismissed.

Appeal from an Ontario Review Board disposition under Part XX.1 of the Criminal Code.

The appellant sought an absolute discharge or, alternatively, a conditional discharge, and also challenged the Board’s decision to proceed with a three-member panel after one scheduled member became ill.

The Court of Appeal held that the Board reasonably found the appellant continued to pose a significant threat to public safety in light of active symptoms, refusal to engage in assessment or treatment, and medication non-compliance.

The court further held that the panel satisfied the statutory quorum under s. 672.41(1) and properly exercised its discretion to proceed.

The appeal was dismissed.

The appellant appealed his conviction for sexual assault of a severely disabled resident at a long-term care facility where he worked.

The conviction was based primarily on the testimony of a co-worker who witnessed the assault.

On appeal, the appellant argued that the trial judge erred in applying the W. (D.) test for credibility and subjected the defence and Crown evidence to unequal scrutiny.

The Court of Appeal dismissed the appeal, finding that the trial judge properly applied the W. (D.) principles and did not apply a different standard of scrutiny to the evidence.

The Crown appealed a decision of the Ontario Court of Appeal which set aside the respondent's conviction for possessing marijuana and cocaine for the purposes of trafficking and ordered a new trial.

The central issue was whether a drug purchase call intercepted by police on the accused's cell phone constituted admissible evidence or inadmissible hearsay.

The Court held that implied assertions tendered for the truth of their contents are subject to the hearsay rule, just as express assertions are.

On a principled analysis, the single drug purchase call failed to meet the requirements of necessity and reliability, as no effort was made to locate the caller despite having his address, and the call lacked sufficient indicia of reliability.

The appeal was dismissed and a new trial ordered.

Appeal under Part XX.1 of the Criminal Code from an Ontario Review Board disposition continuing detention subject to conditions.

The appellant argued that the Board failed to address two Charter applications, misapprehended the evidence, and erred in refusing a conditional discharge.

The court held that the Charter applications were unsupported by particulars or sought remedies beyond the Board's jurisdiction or irrelevant to the annual review, found no material misapprehension of evidence, and concluded that continued detention was adequately supported by the Board's reasons.

The appeal was dismissed.

The appellant was convicted of sexual assault causing bodily harm.

At trial, the judge instructed the jury that consent was not a defence to the charge, relying on older jurisprudence.

On appeal, the appellant argued the trial judge erred by failing to instruct the jury in accordance with R. v. Quashie, which requires a finding that the accused subjectively intended to cause bodily harm before consent is vitiated.

The Court of Appeal agreed, holding that the trial judge erred in removing the defence of consent without instructing the jury to consider the appellant's subjective intent.

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

The Crown appealed an acquittal for operating a motor vehicle with blood alcohol exceeding 80 mg under the Criminal Code.

The trial judge had found no reasonable suspicion to justify a roadside screening demand under s. 254(2) and concluded the demand was not made forthwith, resulting in exclusion of evidence under s. 24(2) of the Charter.

The appeal court held that the odour of alcohol detected by the officer in the cruiser was sufficient to establish reasonable suspicion and that the four‑minute delay between forming suspicion and making the demand satisfied the “forthwith” requirement.

The trial judge erred in calculating delay from the time of the traffic stop rather than from the formation of reasonable suspicion.

Because the record did not include a final determination on the blood‑alcohol element and was incomplete, the appropriate remedy was a new trial.

The appellant appealed a decision of the Consent and Capacity Board confirming the renewal of a Community Treatment Order under the Mental Health Act.

The appellant argued that the tribunal failed to determine his capacity to consent to treatment at the time of the mandatory review and that, if he had regained capacity, the substitute decision maker’s prior consent would be invalid.

The court held that the tribunal was required to consider capacity as part of the statutory review criteria and found that it had done so.

The tribunal reasonably concluded that the appellant lacked the ability to understand and appreciate the consequences of refusing treatment, based primarily on medical evidence regarding persistent delusional beliefs and lack of insight into illness.

The tribunal’s reasoning was adequate and entitled to deference as a specialized body.

The appeal was dismissed.

The police responded to a suspected break and enter at an apartment and discovered a large quantity of marijuana, cocaine, and drug paraphernalia.

The appellant, who was present in the apartment, was arrested and his cellphone was seized.

While at the police station, an officer answered a call on the appellant's cellphone from an unknown person seeking to purchase drugs and identifying the appellant by name.

At trial, the judge admitted the evidence of the call as non-hearsay circumstantial evidence of drug trafficking.

The Court of Appeal held that the trial judge erred in admitting the single call, as it amounted to an implied assertion that the appellant was a drug dealer and was therefore hearsay.

The call did not meet the necessity and reliability requirements of the principled exception to the hearsay rule, nor did the trial judge consider whether its probative value outweighed its prejudicial effect.

The appeal was allowed and a new trial ordered.

The appellant appealed his conviction for first degree murder, arguing that the finding of murder during forcible confinement under s. 231(5) of the Criminal Code was unreasonable.

The appellant contended that the act of killing was not discrete from the act of confinement.

The Court of Appeal dismissed the appeal, finding ample evidence from which the jury could reasonably infer that the appellant confined the victim by tying him up, beat him, and subsequently strangled him, taking advantage of the dominance gained through the confinement.