Michal Fairburn

The appellant was convicted of possession of property obtained by crime relating to stolen motor vehicles.

During the investigation, a police officer searched a briefcase found in a stolen van incident to the arrest of a co-accused.

The appellant claimed ownership of the briefcase, but the officer continued the search, finding incriminating documents.

The Court of Appeal upheld the search as a valid incident to arrest, finding the officer had a duty to discover and preserve evidence.

The court dismissed the conviction appeal but allowed the sentence appeal in part, setting aside a $20,000 restitution order due to insufficient proof of loss.

The appellant appealed the dismissal of his certiorari application challenging his committal for trial on charges including attempted murder.

At the preliminary inquiry, the judge refused to hear defence submissions on the committal, which constituted a denial of natural justice.

The Court of Appeal held that this error, while going to jurisdiction, originated as a procedural irregularity and was curable under s. 686(1)(b)(iv) of the Criminal Code.

The appeal was dismissed because the appellant suffered no prejudice, as the evidence clearly supported a committal for attempted murder.

The appellant appealed his conviction for mischief, arguing the case involved his fundamental right to communicate with elected officials.

The Court of Appeal upheld the summary conviction appeal judge's decision, finding that the appellant crossed the line by wilfully interfering with the lawful use and operation of his MPP's fax machine, thereby interfering with other citizens' rights to communicate.

The trial judge's finding that the appellant acted out of anger and frustration, rather than a desire to communicate, was supported by evidence.

The Crown appealed a disposition judge's refusal to make a discretionary DNA order against two young offenders convicted of break and enter and theft.

The Court of Appeal held that the disposition judge erred in failing to give reasons as required by the Criminal Code.

The Court further held that the assumption that a DNA order is in the best interests of the administration of justice for adult offenders does not apply to young offenders, and the statutory factors must be considered in light of young offender legislation principles.

The appeal was allowed and the matter referred back to the disposition judge.

The appellant appealed his conviction and sentence, challenging the jurisdiction of the First Nations constables involved in his case.

The Court of Appeal dismissed the appeal, finding that the constables had jurisdiction arising from the Police Services Act and their appointment by the Commissioner of the O.P.P., applying the precedent set in R. v. Stephens.

The appellant appealed his conviction for aggravated assault and his sentence.

The sole issue at trial was the identification of the attacker.

The Court of Appeal found that while the verdict was not unreasonable, the cumulative effect of several trial errors necessitated a new trial.

These errors included inadequate jury instructions on the frailties of eyewitness and in-dock identification, improperly allowing a prior unadopted statement to be considered for its truth, and admitting inadmissible police opinion evidence regarding the correctness of the arrest.

The Supreme Court of Canada heard three appeals concerning the constitutionality of s. 488.1 of the Criminal Code, which sets out a procedure for determining claims of solicitor-client privilege in relation to documents seized from a law office under a warrant.

The Court held that s. 488.1 violates s. 8 of the Charter because it more than minimally impairs solicitor-client privilege.

The provision allows privilege to be lost through the inaction of the lawyer, requires the naming of clients, lacks notice to clients, imposes strict time limits without judicial discretion, and permits the Attorney General to inspect documents before privilege is determined.

The Court struck down s. 488.1 and established common law guidelines for law office searches.

The appellant appealed his convictions for sexual assault with a weapon, forcible confinement, and uttering a death threat.

The primary issue on appeal was whether the police's retention of the appellant's fingerprints, which were taken during a previous arrest for charges that were subsequently withdrawn, violated his s. 8 Charter rights against unreasonable search and seizure.

The Court of Appeal held that the retention of fingerprints after charges are withdrawn does not automatically violate s. 8.

The police policy of destroying fingerprints upon request strikes a reasonable balance between the individual's privacy interests and the state's law enforcement objectives.

Since the appellant never requested the destruction of his fingerprints, their retention and subsequent use to identify him in the sexual assault investigation were reasonable and lawful.

The appeal was dismissed.

The appellant appealed his first-degree murder conviction, arguing that DNA evidence obtained from discarded chewing gum and a subsequent blood sample should have been excluded.

The police had tricked the appellant into chewing and discarding gum to obtain his DNA after he refused to provide a sample.

The Court of Appeal held that while the warrantless seizure of the gum violated section 8 of the Charter, the evidence was admissible under section 24(2).

The court also dismissed grounds of appeal relating to the voluntariness of a police statement and the jury instruction on reasonable doubt, finding any errors to be harmless or in substantial compliance with legal standards.

The appeal was dismissed.

The Crown appealed the refusal of trial judges to make DNA data bank orders for five adult offenders.

The Court of Appeal held that the appeal route follows the general scheme of the Criminal Code and that the standard of review is one of deference absent an error in principle.

The Court found that the DNA data bank provisions apply retrospectively to offenders still before the court after the legislation came into force.

The Court allowed the appeals, finding that the trial judges misapprehended the broad purposes of the DNA data bank, placed unreasonable emphasis on the offenders' privacy, and failed to properly weigh the offenders' criminal records and the nature of their offences.

DNA data bank orders were issued for all five offenders.

The appellant pleaded guilty to robbery and other offences and was sentenced to 30 months' imprisonment.

The Crown successfully applied for an order under s. 487.052 of the Criminal Code authorizing the taking of a bodily sample for the national DNA data bank.

The appellant appealed, arguing that the standard of 'the best interests of the administration of justice' in s. 487.052 is unconstitutionally vague and overbroad unless interpreted to require reasonable and probable grounds to believe the offender will commit a future offence.

The Court of Appeal dismissed the appeal, holding that the search warrant standard of reasonable and probable grounds is not required for DNA data bank orders, as the context, purposes, and privacy expectations differ significantly.

The court found the trial judge did not err in balancing the appellant's privacy interests against his criminal record and the circumstances of the offence.

The appellant was convicted of second degree murder after fatally stabbing his friend during a fight.

At trial, the defence argued the appellant was extremely intoxicated from inhaling glue and consuming alcohol, impairing his capacity to form the intent to kill.

During deliberations, the jury asked a question about the timing of the appellant's glue inhalation relative to a threatening comment he made.

The trial judge declined to review the relevant evidence for the jury.

On appeal, the Court of Appeal held that the verdict was not unreasonable, but the trial judge erred in failing to review the evidence in response to the jury's question.

The appeal was allowed and a new trial ordered.

The police obtained ex parte search warrants to seize video footage and photographs from various media organizations following a violent demonstration at Queen's Park.

The media organizations challenged the validity of the warrants, arguing they should have been given notice and an opportunity to make submissions before the warrants were issued, and that the police failed to disclose an alternative source of video footage.

The Court of Appeal dismissed the appeal, holding that the issuing justice had the discretion to proceed ex parte and did not commit jurisdictional error.

The court also found that the failure to disclose a secondary security camera system was not fatal to the warrants' validity.

The appellants appealed their convictions for first degree murder.

The Crown's case relied heavily on eyewitness identification, including testimony from unsavoury witnesses.

The appellants argued that the verdict against one of them was unreasonable, and that the trial judge erred in his instructions to the jury regarding the assessment of a witness's credibility, the application of the 'might reasonably be true' test, and the definition of reasonable doubt.

The Court of Appeal found that the verdict was not unreasonable given the confirmatory evidence available.

The Court also held that the trial judge's jury instructions, while not perfect in light of subsequent jurisprudence, did not constitute reversible error.

The appeals were dismissed.

Two appellants appealed jury convictions for sexual assault and unlawful confinement arising from an assault on an intoxicated teenage complainant at a rural gravel pit.

The court held that the trial judge properly instructed the jury that it could consider defence counsel's failure to cross-examine the complainant on a central factual issue later contradicted by one appellant's evidence when assessing credibility.

The court also rejected objections to evidence that two witnesses had pleaded guilty to perjury in relation to their preliminary inquiry testimony.

Although aspects of Crown cross-examination and submissions touched improperly on one appellant's pre-trial silence, the curative instruction was held sufficient and no miscarriage of justice was found.

The appellant challenged the constitutionality of the Criminal Code procedure governing seizure of documents from a lawyer's office during a criminal investigation.

The court held that solicitor-client privilege attracts the highest level of protection and that a statutory search procedure must impair that confidentiality only minimally.

Section 488.1 failed that standard because privilege could be lost automatically through lawyer inaction, because the provision required disclosure of the client's name to the state in order to claim privilege, and because it permitted Crown inspection of the impugned document on the privilege application.

The court concluded that the mandated procedure produced an unreasonable search and seizure contrary to s. 8 and, absent any s. 1 justification, declared the provision unconstitutional and of no force and effect.

The Crown appealed an order declaring s.488.1 of the Criminal Code unconstitutional as infringing the Charter of Rights and Freedoms.

The appeal was argued together with a companion case.

The court dismissed the appeal for the reasons given in the companion decision.

The appellant appealed a sexual assault conviction arising from a motel room encounter where the central issue was consent and credibility.

The court held that the trial judge erred by instructing the jury that a deliberately false explanation could be used as circumstantial evidence of guilt without first requiring extrinsic or independent evidence that the explanation was concocted.

Given the nature of the case, the jury's difficulties, and the risk that the burden of proof was distorted, the curative proviso could not be applied.

The conviction was set aside and a new trial ordered.

The appellant challenged his convictions on the basis that the trial judge improperly dismissed a Charter application seeking exclusion of a saliva sample.

The Court of Appeal held that the trial judge erred by placing the burden on the appellant to prove lack of consent under s. 8, failed to make adequate credibility findings, and gave no reasons on the alleged s. 10(b) breach.

Applying the conscriptive evidence analysis from Stillman, the court concluded the trial judge's s. 24(2) analysis was of little assistance and rejected the Crown's discoverability argument for lack of evidentiary foundation.

The convictions were set aside and a new trial was ordered.

The appellant challenged his conviction on the basis that a saliva sample was obtained without informed consent and without permitting access to counsel after request.

The court held that the trial judge erred by placing the onus on the appellant to prove lack of consent under s. 8 of the Charter and failed to give reasons on the s. 10(b) issue.

Applying the framework for conscriptive evidence and discoverability under s. 24(2), the court was not satisfied that the saliva sample would be admissible.

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