Michael Dineen

The appellant appealed a conviction for first degree murder and conceded that a conviction for second degree murder was inevitable.

The appeal challenged the jury charge on planning and deliberation, including whether post-offence conduct could be considered and whether psychiatric evidence was properly left with the jury.

The court held that it was open to the jury to consider the appellant's actions after the killing in response to the defence theory of impulsive and disorganized conduct.

The court further held that the psychiatric evidence was primarily relevant to provocation, which lacked an air of reality, and that any remaining relevance to planning and deliberation was adequately addressed.

The appeal was dismissed.

The appellant appealed his conviction for aggravated assault, arguing the trial judge erred by allowing part of the proceedings to be translated simultaneously rather than consecutively.

The Court of Appeal dismissed the appeal, finding the trial judge reasonably concluded the interpreter was competent to perform both simultaneous and consecutive interpretation, and that simultaneous interpretation met the constitutional requirement of contemporaneity.

The appellant appealed convictions for possession of a loaded handgun and marihuana, arguing that police breached his Charter rights under ss. 8 and 9.

The police approached the appellant based on an anonymous tip about a man with a gun.

When the appellant acted evasively and refused to comply with instructions, police detained him and discovered a handgun protruding from his waistband.

The Court of Appeal upheld the trial judge's finding that the combination of the tip and the appellant's conduct justified the investigative detention, and that the search was not unreasonable.

The appeal was dismissed.

The appellant appealed a conviction for dangerous operation of a motor vehicle arising from an incident in which a vehicle accelerated toward pedestrians and police officers in a parking lot after a confrontation outside a bar.

The appellant argued the trial judge materially misapprehended the evidence and erred in assessing his testimony, particularly regarding whether pedestrians posed a threat and whether he stopped when police ordered him to do so.

The court reviewed the strict standard for establishing a material misapprehension of evidence and emphasized the deference owed to a trial judge’s credibility findings.

The court held the factual findings were reasonably open on the evidence and that the trial judge properly applied the principles governing credibility and reasonable doubt.

The appellant appealed his sentence of seven years' imprisonment for possession of a loaded, prohibited firearm and other firearms offences.

He challenged the constitutionality of the five-year mandatory minimum sentence under s. 95(2)(a)(ii) of the Criminal Code for a second or subsequent offence.

The Court of Appeal held that the mandatory minimum sentence violated s. 12 of the Charter as it would be grossly disproportionate in reasonable hypothetical scenarios, and could not be saved under s. 1.

The provision was declared of no force and effect.

However, the appellant's seven-year sentence was upheld as fit given his extensive criminal record and the gravity of his offences.

The Crown appealed the accused's acquittal on drug trafficking and conspiracy charges.

The accused was arrested after police observed a co-accused place a duffle bag containing drugs into the trunk of his car.

The trial judge acquitted the accused, finding the Crown failed to prove he knew the bag contained drugs.

On appeal, the Crown argued the trial judge erred in applying the Carter test for co-conspirator hearsay and in applying the reasonable doubt standard piecemeal.

The Court of Appeal dismissed the appeal, finding that while the trial judge erred on the first step of the Carter test, the ambiguous hearsay evidence would not have changed the outcome, and the trial judge properly considered the evidence as a whole.

The appellant appealed a murder conviction arising from a circumstantial case centred on bloody palm prints found on a garage wall near the deceased's body.

He argued that an extract from his post-arrest police statement should have been admitted as a prior consistent statement to rebut alleged recent fabrication or, alternatively, under the spontaneous reaction exception recognized in Edgar.

The court held that the Crown's cross-examination alleged only that the appellant was lying because he was the perpetrator, not that some later event created a motive to fabricate, so the traditional exception did not apply.

The statement was also inconsistent with the appellant's trial account on the critical timing of the light switch and there was no evidentiary foundation to establish spontaneity or that it was made when first confronted with the accusation.

The court also rejected the complaint about instructions concerning an alternative suspect, finding no evidence connected that witness to the killing.

The appellant appealed his convictions for possession of a loaded firearm and assaulting police, arguing that his Charter rights under ss. 8, 9, and 10(b) were violated during a traffic stop.

The trial judge found that while the appellant was arbitrarily detained, he initiated an unjustified assault against the police using excessive force, making the subsequent search that revealed a handgun reasonable.

The Court of Appeal dismissed the appeal, finding no error in the trial judge's assessment of the evidence, her conclusion that there was no opportunity to provide right to counsel, or her refusal to exclude the evidence under s. 24(2).

The appellant appealed his conviction.

The Crown conceded that the trial judge misapprehended the evidence regarding the placement of fingerprints due to a mistaken submission by Crown counsel.

The Court of Appeal found this misapprehension was critical to the conviction.

However, the Court rejected the argument that the verdict was unreasonable.

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

The appellant was convicted of armed robbery and firearms offences.

At trial, the victim recanted his preliminary inquiry identification of the appellant.

The Crown introduced the preliminary inquiry evidence for its truth and a video of the victim's initial photo line-up identification.

The appellant appealed, arguing the trial judge erred in his jury instructions regarding the use of the video line-up, prior inconsistent statements of a witness, and the failure to give a Vetrovec warning for the recanting victim.

The Court of Appeal dismissed the appeal, finding the jury instructions were adequate and the trial judge's cautions regarding the witness's evidence were sufficient.

The Crown appealed as of right to the Supreme Court of Canada from a Court of Appeal decision that set aside the accused's convictions for physical and sexual abuse and ordered a new trial.

The majority held that the appeal raised a question of law, namely whether the trial judge was required to self-instruct on the dangers of convicting based on frail complainant evidence from the distant past.

Agreeing with the dissenting Court of Appeal justice, the majority found no legal error by the trial judge.

The appeal was allowed and the convictions restored, with one justice dissenting on the basis that the dissent below raised only questions of fact or mixed fact and law, and thus the Court lacked jurisdiction.

In a criminal appeal involving a niqab-wearing complainant at a preliminary inquiry, the Court addressed how to reconcile freedom of religion with fair-trial rights.

The majority held neither an absolute ban nor an absolute permission rule is acceptable, and adopted a contextual four-step framework.

A witness may be required to remove a niqab only where necessary to prevent a serious trial-fairness risk that cannot be avoided by alternatives, and where the benefits of removal outweigh the harms.

The appeal was dismissed and the matter remitted for application of that framework.

The appellant appealed his sentence.

The Court of Appeal found that the sentencing judge erred in principle by stating he was throwing all sentencing principles out the window except for separating the offender from society.

The Court allowed the appeal and imposed a global sentence of 10 years, taking into account the offender's egregious record, the seriousness of the offence involving two young people, and prior sentences for similar offences.

The appellant appealed his indeterminate sentence as a dangerous offender, arguing the trial judge erred by failing to consider the long-term offender (LTO) option.

The appellant also introduced fresh evidence of a 2010 risk assessment showing rehabilitation progress.

The Court of Appeal applied the curative proviso and dismissed the appeal, finding no reasonable possibility the trial judge would have imposed an LTO order in 1998 even with the fresh evidence.

The court noted that the appellant's progress should be assessed by the Parole Board, not through a new sentencing hearing.

The appellant appealed his conviction and sought to introduce fresh evidence from himself and another individual.

The Court of Appeal dismissed the appeal, finding that the appellant's evidence was always available and that trial counsel made a tactical decision not to call the other witness.

The court held that the proposed fresh evidence failed to meet both the due diligence and cogency requirements.

The appellant appealed three convictions, arguing that the trial judge erred in her credibility findings, that parts of the trial transcript were missing, and that the assault by gesture charge was not made out.

The Court of Appeal dismissed the appeal, finding that the trial judge carefully considered the evidence and made findings open to her.

The court also held that the missing transcript portions did not affect the grounds of appeal and that the assault by gesture charge was supported by the evidence.

The Crown brought an application for certiorari to quash a provincial court judge's decision granting bail to a young person committed for trial on a charge of first-degree murder.

The Crown argued that under the Youth Criminal Justice Act and the Criminal Code, only a superior court judge has jurisdiction to grant bail once a young person is committed for trial on a section 469 offence.

The Superior Court of Justice agreed, finding that the term 'proceeding' in sections 13(2) and 13(3) of the Youth Criminal Justice Act encompasses bail applications, and that the superior court has exclusive jurisdiction over bail once the young person is deemed to have elected trial by judge and jury.

The provincial court judge's decision was quashed, and the young person was ordered into custody pending a proper bail hearing before a superior court judge.

The appellant appealed his convictions for robbery and related offences, arguing the application judge erred in dismissing his application for a stay of proceedings based on unreasonable delay under s. 11(b) of the Charter.

The Court of Appeal found that the application judge erred in characterizing the delay caused by the Crown's failure to make timely disclosure, failed to consider inferred prejudice, and incorrectly treated a stay of proceedings as an extraordinary remedy.

The Court concluded that the 35-month delay, largely attributable to the Crown and institutional delay, was unreasonable.

The appeal was allowed, the convictions were set aside, and a stay of proceedings was entered.

The appellant appealed a dangerous offender designation and indeterminate sentence, relying on fresh psychiatric and correctional evidence developed after a lengthy delay in perfecting the appeal.

The court accepted that the original designation and sentence were proper when imposed and held that the updated record did not establish a reasonable possibility of eventual control of the appellant's risk in the community, as required for a long-term supervision order.

The court emphasized the appellant's extensive history of serious sexual and violent offending, persistent treatment resistance, and the contingent nature of the more optimistic expert opinion.

The appeal was dismissed.

The appellant appealed his convictions for sexual assault and uttering a death threat, arguing the trial judge misapprehended the complainant's evidence and erred in applying the third stage of the W.D. analysis.

The Court of Appeal found that the trial judge did not misapprehend the evidence regarding the appellant's boasting or the complainant's description of his post-assault behaviour.

The trial judge was entitled to reject the appellant's evidence and accept the complainant's evidence to find the charges proved beyond a reasonable doubt.

The appeal was dismissed.