Michal Fairburn

The appellant challenged firearms convictions arising from a street encounter with police, alleging arbitrary detention and breach of the right to counsel before he disclosed possession of a firearm.

The Court held that a psychological detention had crystallized during the encounter, that the detention was arbitrary under s. 9, and that the failure to advise of counsel breached s. 10(b).

The Court reformulated the legal framework for detention and established a revised three-part approach to exclusion of evidence under s. 24(2), ultimately admitting the firearm because the police conduct, though unconstitutional, was not egregious and the evidence was highly reliable and essential.

The Court also held that simple movement of a firearm from place to place did not constitute a 'transfer' for the purpose of the weapons trafficking offence, and entered an acquittal on that count.

The appellant appealed his convictions for committing an indecent act in a public place, breach of recognizance, and breach of probation.

At trial, the complainant testified that the appellant exposed his penis while asking her for directions from his car.

The defence argued that the trial judge misapprehended the evidence, suggesting the complainant had mistaken a wooden key chain for a penis.

The Court of Appeal dismissed the appeal, finding that the trial judge properly assessed the evidence, noted the lack of evidentiary support for the key chain theory, and reasonably rejected the appellant's testimony.

The appellant appealed the global sentence of twelve years imposed by the trial judge.

The Court of Appeal dismissed the sentence appeal, finding the trial judge's decision to be thorough and well-reasoned, and the sentence entirely fit.

The appellant, a police officer, was convicted of breach of trust for stealing cash from his detachment.

On appeal, he argued the trial judge misapprehended evidence, misapplied the burden of proof, and that he received ineffective assistance of counsel at trial.

The Court of Appeal dismissed the appeal, finding no material errors in the trial judge's reasons and concluding the appellant failed to demonstrate any prejudice resulting from the alleged ineffective assistance of counsel.

The appellant was wrongfully convicted of first-degree murder of his four-year-old niece in 1993 based on flawed pathology evidence.

Following a reference by the Minister of Justice, the Court of Appeal heard fresh expert evidence conclusively demonstrating that the deceased was neither sexually assaulted nor murdered, and that the trial experts were wrong.

The Court admitted the fresh evidence, quashed the conviction, and entered an acquittal, but declined to issue a formal declaration of factual innocence, holding that Canadian law does not recognize such a verdict.

The appellant pleaded guilty to second degree murder and was sentenced to life imprisonment.

He appealed his conviction, arguing that the proceedings were invalid because he did not expressly re-elect to be tried by a judge alone under s. 473 of the Criminal Code, that his Charter rights were violated by the lack of a clear waiver of a jury trial, and that he received ineffective assistance of counsel.

The Court of Appeal dismissed the appeal, finding that his consent to a judge alone trial was implicit in his guilty plea, that he waived his right to a trial by pleading guilty, and that there was no evidence to support the claim of ineffective assistance of counsel.

The police responded to a 911 call reporting individuals with handguns in a strip club parking lot.

Officers set up a roadblock at the exit and stopped the first vehicle to leave.

The occupants, who matched the general description of the suspects, were asked to exit the vehicle.

One occupant fled, was apprehended, and found to possess a loaded handgun.

The other occupant was subsequently searched, and a loaded handgun was also found on him.

The trial judge admitted the evidence, but the Court of Appeal excluded it, finding violations of ss. 8 and 9 of the Charter.

The Supreme Court of Canada allowed the Crown's appeal and restored the convictions, holding that the initial detention and subsequent searches were justified under the common law police powers and did not violate the Charter.

The Crown appealed a trial judge's order dismissing an application under s. 37 of the Canada Evidence Act and ordering the disclosure of edited police files relating to a confidential informer.

The accused, charged with weapons offences after a police stop based on an informer's tip, sought the files to challenge the search under the Charter.

The Court of Appeal allowed the appeal, holding that the trial judge erred in finding that the edited documents would not tend to identify the informer.

Given the precise details provided by the informer, the pool of potential informers was very small, and any disclosure risked violating informer privilege.

The Crown appealed a decision staying criminal charges against the respondent due to unreasonable delay under s. 11(b) of the Charter.

The respondent faced multiple charges including domestic assault and firearms offences.

The Court of Appeal found that the trial judge erred in calculating and allocating the periods of delay, particularly by failing to attribute delay to the respondent after he declined an early trial date.

The Court concluded that the total delay was not unreasonable and that the respondent's prejudice was largely negated by his lack of interest in an early trial.

The appeal was allowed and the matter remitted for trial.

The respondent, a convicted sex offender, challenged the constitutionality of s. 487.055 of the Criminal Code, which permits ex parte applications for DNA samples from convicted offenders for inclusion in the national DNA data bank.

He argued the provision violated his Charter rights under ss. 7, 8, and 11 by allowing ex parte proceedings, lacking reasonable and probable grounds linking him to a specific crime, and constituting double punishment.

The Supreme Court of Canada upheld the constitutionality of the DNA data bank provisions.

The Court found that the collection of DNA for identification purposes is reasonable under s. 8, analogous to fingerprinting, and that the ex parte procedure meets the requirements of procedural fairness under s. 7.

The Court also held that a DNA order is not a punishment under s. 11.

The appellant appealed his conviction, arguing that the police lacked reasonable and probable grounds to arrest him and that the trial judge erred in upholding confidential informant privilege.

The police arrested the appellant based on a tip from a confidential informant and their own observations of the appellant appearing to hold a gun tucked into his pants.

The Court of Appeal dismissed the appeal, finding that the informant's tip combined with police observations provided reasonable and probable grounds for the arrest.

The court also upheld the trial judge's ruling on informant privilege, noting the appellant did not demonstrate that disclosure was necessary to prove his innocence.

The appellant pleaded guilty to making and distributing child pornography after creating a sexually explicit collage of his 15-year-old former girlfriend and sharing it online.

He was sentenced to two years in a penitentiary.

On appeal, he sought to withdraw his guilty plea, arguing it was involuntary and that his trial counsel provided ineffective assistance.

The Court of Appeal dismissed the conviction appeal, finding the plea was valid and no miscarriage of justice occurred.

However, the sentence appeal was allowed, with the court finding the two-year term excessive for a youthful first-time offender whose actions were an immature response to a breakup.

The sentence was reduced to time served of eight months.

The appellant was convicted of aggravated assault and assault with a weapon following an unprovoked attack on two intoxicated victims outside a bar.

He appealed his convictions and six-year sentence, arguing the trial judge misapprehended his alibi evidence, failed to assess the reliability of identification evidence, misapplied the burden of proof, and improperly admitted reply evidence.

The Court of Appeal dismissed the appeal, finding the trial judge properly applied the W.(D.) framework, correctly assessed both the credibility and reliability of the witnesses, and imposed a fit sentence given the serious, premeditated nature of the assaults.

The Crown appealed a stay of proceedings granted to the respondents, who were charged with first-degree murder in the death of their infant daughter.

The trial judge stayed the charges due to unreasonable delay under s. 11(b) of the Charter, largely caused by the failings of the Crown's pathologist.

The Court of Appeal found that the trial judge erred in including pre-charge delay in his calculation as a remedy for the cremation of the child's remains.

However, the Court upheld the stay, concluding that the post-charge delay of 55 months for one respondent and 42.5 months for the other was unreasonable and severely prejudiced their liberty and security interests.

The appellant appealed a summary conviction appeal court decision upholding his conviction.

The trial judge found that the arresting officer had an honest but mistaken belief that the roadside screening device was properly calibrated, failing to appreciate the significance of an inaccurate calibration date.

The Court of Appeal held that the summary conviction appeal court judge did not err in upholding this finding, as the officer's mistake was objectively reasonable and the inaccurate date did not establish that the device had not been recalibrated on a timely basis.

The appeal was dismissed.

The appellant was stopped at a R.I.D.E. checkstop set up by First Nations Constables just outside the Fort William Reserve.

He was charged with refusing a breathalyzer demand and failing to comply with a recognizance.

He argued that the constables lacked jurisdiction outside the reserve and that he was arbitrarily detained contrary to s. 9 of the Charter.

The Supreme Court of Canada held that First Nations Constables have the powers of police officers throughout Ontario and are peace officers under the Criminal Code.

The detention was lawful, and the appeal was dismissed.

The accused was charged with impaired driving and failing to provide a breath sample.

The trial judge granted a stay of proceedings because the Crown failed to disclose a police station security videotape before it was routinely erased.

The Summary Conviction Appeal Court dismissed the Crown's appeal.

On further appeal, the Court of Appeal agreed that the videotape was marginally relevant and its loss breached the accused's Charter rights due to the Crown's unexplained failure to preserve it.

However, the Court held that a stay of proceedings was an inappropriate remedy because the prejudice to the accused was minimal.

The appeal was allowed, the stay set aside, and a new trial ordered where the defence could lead evidence about the lost tape.

The appellant was convicted of first degree murder after the victim was found sexually assaulted and beaten to death.

On appeal, the appellant argued the trial judge erred by failing to instruct the jury that a first degree murder conviction under s. 231(5) of the Criminal Code requires the sexual assault to precede the murder.

The Court of Appeal dismissed the appeal, applying the 'single transaction' principle from Paré, holding that the exact sequence of the murder and sexual assault is immaterial provided they form a continuous sequence of events involving illegal domination.

The court also dismissed grounds of appeal relating to the trial judge's instructions on the appellant's statements, after-the-fact conduct, and identification evidence.

The Crown brought ex parte applications under s. 487.055(1) of the Criminal Code for DNA databank orders against two repeat sexual offenders on parole.

The issuing judge granted the orders ex parte.

The appellants challenged the constitutionality of the provision and the ex parte procedure.

The Court of Appeal upheld the constitutionality of the provision but found that the issuing judge lost jurisdiction by proceeding ex parte without any evidence justifying the need to do so.

The appeals were allowed and the authorizations quashed.

The appellant appealed his summary conviction for theft, arguing that Crown counsel's pre-arrival reference was prejudicial, he was misled by lawyers not to testify, the trial judge misapplied the definition of theft, and there was inadequate disclosure of video tapes.

The Court of Appeal dismissed the appeal, finding the Crown's reference innocuous, the reliance on legal advice not rendering the trial unfair, the trial judge's reasons full and fair, and noting the appellant explicitly agreed to the admission of the video tapes at trial.