Michael S. Dunn

The appellant, Nicholas Berto, appealed his conviction for dangerous driving causing bodily harm and failure to remain at the scene of an accident, and sought leave to appeal his 18-month and 6-month consecutive sentences.

The appellant argued the trial judge erred by not leaving the lesser included offence of dangerous driving to the jury, claiming his driving constituted two separate incidents with an intervening act.

He also sought to admit fresh evidence regarding his intellectual disability and mental health for sentencing purposes.

The Court of Appeal dismissed the conviction appeal, finding no air of reality to the intervening act argument as the dangerous driving was one continuous transaction.

The fresh evidence application was dismissed as it was not materially different from evidence already considered.

Leave to appeal sentence was granted, but the sentence appeal was dismissed, as the sentencing judge properly considered all factors and the sentence was fit.

The victim surcharge was set aside in light of R. v. Boudreault.

The Crown brought a motion for directions seeking a declaration that a co-accused, Jason Hamilton, had waived solicitor-client privilege over communications with his trial counsel regarding the accuracy and creation of an Agreed Statement of Facts.

Hamilton and the appellant, Haldane Smithen-Davis, were convicted based on this statement, and Smithen-Davis sought to reopen his appeal, relying on Hamilton's affidavit which challenged the statement's veracity and his counsel's advice.

Despite Smithen-Davis waiving his privilege, Hamilton refused.

The Court of Appeal found that Hamilton's partial and selective disclosure in his affidavit, and his reliance on it to explain his actions, constituted an implied waiver of privilege due to fairness.

The court ordered that Hamilton had waived privilege regarding the Agreed Statement of Fact's accuracy and origin, and directed cross-examination on these issues.

The Crown appealed a trial judge's decision declaring certain Criminal Code provisions related to sexual services unconstitutional and sought a stay of the declaration pending appeal.

The Court of Appeal applied the tripartite test from RJR-MacDonald Inc., finding a serious question to be tried, irreparable harm to the Crown (public confusion, impact on law enforcement), and that the balance of convenience favoured granting the stay, especially given the short duration of the stay until the appeal hearing.

This decision addresses motions by proposed interveners in a criminal appeal concerning the constitutionality of Criminal Code provisions related to sexual services.

The respondent, N.S., was charged with offences under ss. 286.2(1), 286.3(1), and 286.4, which were declared unconstitutional by the trial judge.

The Crown appealed this decision and sought a stay of the declaration.

Proposed interveners, including sex workers' rights organizations, sought leave to intervene in the appeal and the stay motion.

They also requested to delay the appeal pending a separate civil application challenging broader Criminal Code provisions and to introduce fresh evidence.

The court granted leave to intervene in both the stay motion and the appeal, but denied the requests to delay the appeal and to augment the factual record.

The court emphasized the need for expeditious resolution of criminal appeals, particularly those involving constitutional challenges with conflicting jurisprudence, and reiterated that interveners act as friends of the court, not parties, and generally cannot expand the evidentiary record or issues.

The appellant, D.L., sought bail pending appeal after being convicted of serious offences including sexual assault, assault, mischief, extortion, unlawful confinement, criminal harassment, and breach of probation, and pleading guilty to possession of cocaine for trafficking, receiving a six-year sentence.

His initial bail was granted but later denied after he was charged with uttering a death threat and trial transcripts became available, weakening the appeal's perceived strength.

D.L. reapplied for bail after the threat charge was withdrawn and he entered a peace bond.

The Court of Appeal denied the application, finding that the withdrawal of the threat charge did not constitute a material change in circumstances sufficient to revisit the prior denial, and that public interest concerns, including the seriousness of the offences, the lengthy sentence, and the appellant's criminal history, justified his continued detention.

The appellant, convicted of second-degree murder, appealed his conviction on two grounds: the voluntariness of his statements to police and the trial judge's instruction allowing the jury to infer fabrication from these statements.

The Court of Appeal dismissed the appeal, affirming the trial judge's finding that the statements were voluntary, noting that the judge conducted a proper contextual inquiry and her findings were entitled to deference.

Regarding fabrication, the court found no procedural unfairness despite the lack of a formal ruling on the voir dire, as the issue was contemplated and ample independent evidence supported the inference of fabrication.

The jury instruction distinguishing between disbelief and fabrication was also deemed correct and balanced.

The appellant appealed his conviction for sexual assault, arguing that the trial judge erred in her credibility assessment by suggesting his evidence was tailored to the complainant's testimony.

The Court of Appeal found that the trial judge committed a legal error by impugning the appellant's credibility on this basis, as it undermined his constitutional right to be present at trial and make full answer and defence.

The court determined this error played a significant role in the trial judge's rejection of the appellant's evidence.

The appeal was allowed, and a new trial was ordered.

The appellant, Trevor Jesse Herdman, appealed his convictions for possession of stolen property, possession of cocaine for trafficking, and failure to comply with a recognizance.

The sole ground of appeal was that the trial judge erred in dismissing his s. 8 Charter challenge to the validity of a telewarrant, arguing that the Information to Obtain (ITO) lacked reasonable grounds as it was based on a confidential informant's (CI) tip that did not meet the Debot criteria.

The Court of Appeal upheld the trial judge's finding that despite the CI's low credibility, the tip was "highly compelling" and "significantly corroborated" by police investigation, providing reasonable grounds for the warrant.

The appeal was dismissed.

The appellant, S.H., appealed convictions for sexual interference and sexual assault.

The core issue on appeal was whether the trial judge misapplied the second stage of the R. v. W.(D.) analysis regarding reasonable doubt in credibility cases, despite correctly citing the principles.

The Court of Appeal found that, reading the trial judge's reasons as a whole, it could be inferred that the judge rejected the appellant's exculpatory testimony entirely, rendering it incapable of raising a reasonable doubt.

The appeal was dismissed.

The appellant, found not criminally responsible, appealed a decision of the Ontario Review Board (ORB) to continue his detention at the Centre for Addiction and Mental Health (CAMH), rejecting a joint submission for transfer to Waypoint Centre for Mental Health.

The appellant argued the ORB breached procedural fairness by not giving express notice of its intent to reject the joint submission and that its decision was unreasonable.

The Court of Appeal found that the ORB's "significantly probing" questions during the hearing provided sufficient implicit notice and that its decision to reject the transfer was reasonable, as the evidence did not support the claimed benefits of transfer or a treatment impasse at CAMH.

The appeal was dismissed.

Two appellants were convicted of first degree murder in the death of Jagtar Gill, who was beaten with a metal bar, stabbed multiple times, and had her throat slashed.

The Crown's theory was that Bhupinderpal Gill (the victim's husband) and Gurpreet Ronald (with whom Gill was having an affair) conspired to commit the murder, with Ronald as the perpetrator.

The trial judge failed to instruct the jury on the included offence of second degree murder for Ronald, leaving only verdicts of guilty of first degree murder or not guilty.

The appellants appealed on the basis that this instruction was erroneous and prejudicial to both their defences.

The Court of Appeal allowed the appeals, finding that the trial judge erred in law by failing to leave second degree murder as a possible verdict for Ronald, and that this error tainted the verdict against Gill as well, as it undermined his defence that Ronald acted alone without planning and deliberation.

The appellant, a tobacco manufacturer on the Six Nations reserve, appealed a Divisional Court decision dismissing its application for judicial review of the Minister of Finance's demand for security under section 12(2)(f.1) of the Tobacco Tax Act.

The appellant manufactured tobacco for export and for sale on First Nations reserves, neither of which were subject to Ontario's tobacco tax.

The appellant argued the Minister's interpretation of the security requirement was unreasonable and that the provision was unconstitutional as an indirect tax on exported goods.

The Court of Appeal upheld the Divisional Court's decision, finding the Minister's interpretation reasonable and the provision constitutionally valid as incidental to a valid direct taxation scheme.

The appellants appealed a Superior Court decision finding that frequent lockdowns at Maplehurst Correctional Complex violated the Charter rights of two remanded inmates under section 12 (cruel and unusual treatment).

The Court of Appeal allowed the appeal, finding that the application judge had significantly overstated the frequency, duration, and impact of lockdowns affecting the respondents.

The court concluded that while lockdowns occurred more frequently than ideal, they did not rise to the level of cruel and unusual treatment.

The court also found procedural unfairness in the award of damages without notice to the parties and rejected alternative arguments based on sections 7 and 10(c) of the Charter.

The applicant, a small craft distillery, applied for a declaration that the markup imposed by the LCBO on spirits sold at its on-site retail store was an unconstitutional tax under the Constitution Act, 1867.

The court dismissed the application, finding that the markup was a proprietary charge levied by the LCBO as the owner and commercial supplier of the spirits.

Alternatively, the court held that the markup was a contractual term freely agreed to by the applicant in exchange for the authorization to sell its products.