Michal Fairburn

This is an appeal from a conviction for sexual assault and a Crown appeal from sentence.

The appellant challenged the conviction based on alleged errors in the trial judge’s reasoning, including the *Browne v. Dunn* rule and misapprehension of evidence.

The Court of Appeal found no error in the trial judge's credibility findings.

The Crown appealed the two-year less a day conditional sentence, arguing it was unfit.

The Court declined to interfere with the sentence, finding it was an exceptional case justified by the offender's remorse, commitment to rehabilitation, insight, and the severe family consequences of incarceration.

Both the conviction appeal and the sentence appeal were dismissed.

The appellants challenged the constitutional validity of the Tamil Genocide Education Week Act, 2021, arguing it was ultra vires Ontario and infringed their rights to free expression and equality under the Charter.

The Court of Appeal upheld the Act, finding its dominant purpose was to affirm and commemorate the Tamil-Ontarian community's experience, which falls within Ontario's power over local matters under s. 92(16) of the Constitution Act, 1867.

The Court also dismissed the Charter claims, concluding the Act does not suppress expression or draw a discriminatory distinction against Sinhala-Buddhists.

The moving party, a lawyer, brought a motion for security for costs and security for judgment pending an appeal by his former client regarding unpaid legal fees.

The former client had previously successfully appealed a receivership order on the basis that his on-reserve assets were protected under the Indian Act.

The motions judge found that while the appeal was not frivolous, the former client's history of avoiding payment and lack of cooperation regarding off-reserve assets justified an order for security for costs.

The court ordered $115,026.90 to be paid into court for outstanding costs and appeal costs, but declined to order security for judgment.

This addendum was issued by the Court of Appeal for Ontario to clarify the total outstanding costs owed by the responding parties to the moving parties, Harsha Rathod and Bluekat Capital Corp. It consolidates costs orders from previous decisions by Roberts J.A. and a three-judge panel, specifying the combined amounts due to each moving party.

This motion was brought by the moving parties seeking to dismiss the responding parties' appeal due to unpaid costs orders, or alternatively, to compel payment of these orders by a deadline, or to require further security for costs.

The court, presided over by a single judge, determined it lacked jurisdiction to dismiss the appeal.

However, it ordered the responding parties to pay the outstanding costs orders by August 28, 2024, clarifying that costs orders are generally payable within 30 days even if no specific deadline is stated.

The appeal is scheduled to be heard on September 24, 2024, regardless of any further motion to dismiss.

The Toronto Police Service (TPS) denied Yazdan Khorsand's application for special constable employment with the Toronto Community Housing Corporation (TCHC) based on a pre-screening background check, without disclosing reasons or information.

Khorsand sought judicial review, arguing a breach of procedural fairness and systemic discrimination.

The Divisional Court found the decision judicially reviewable.

On appeal, the Court of Appeal for Ontario reversed this, holding that the pre-screening decision was part of a private employment hiring process by the TCHC, not a sufficiently public exercise of state authority by the TPS Board, and therefore not amenable to judicial review.

The court emphasized that the broad public impact of a decision does not automatically make it judicially reviewable and that public law remedies were unsuitable given the need to protect sensitive law enforcement information.

The appellant, convicted of firearms offences including intentional discharge of a restricted firearm, appealed his conviction and sentence.

He challenged the trial judge's W.(D.) instruction and treatment of defence expert evidence in the jury charge, arguing they were inconsistent with the defence theory and confusing, especially given the Crown's closing submissions.

Alternatively, he sought leave to appeal the five-year custodial sentence, contending the trial judge erred by not considering a sentence below the mandatory minimum.

The Court of Appeal dismissed both the conviction and sentence appeals, finding no reversible error in the jury charge or the sentencing decision.

Paramedics Christopher Marchant and Steven Snively were convicted of failing to provide the necessaries of life to a shooting victim.

They appealed their convictions, arguing a flawed analytical approach, insufficient/contradictory reasons, and misapprehension of evidence by the trial judge.

The Crown sought leave to appeal their 18-month conditional sentences, requesting custodial terms.

The Court of Appeal dismissed both the conviction appeals and the Crown's sentence appeals, upholding the trial judge's findings that the paramedics' actions constituted a marked departure from the standard of care and that the conditional sentences were fit.

The appellant appealed convictions for sexual assault, sexual exploitation, and child pornography, alleging a breach of his s. 11(b) Charter right to a trial within a reasonable time.

The Court of Appeal found the motion judge erred in attributing certain periods of delay to the defence and in inferring waiver.

Correcting these errors, the net delay exceeded the 18-month Jordan ceiling for provincial court cases, leading to a stay of proceedings.

The Samuelson-Glushko Canadian Internet Policy and Public Interest Clinic (CIPPIC) brought a motion for leave to intervene as a friend of the court in an appeal concerning the test for procedural unfairness under the Model Law in international commercial arbitration.

The underlying appeal involved an arbitral claim by Vento Motorcycles Inc. against the United Mexican States under NAFTA, where Vento alleged denial of procedural fairness.

CIPPIC proposed an alternative "material" procedural fairness violation test.

The Court of Appeal dismissed CIPPIC's motion for leave to intervene, finding that CIPPIC did not sufficiently link its expertise to the issue, the case was a private dispute between sophisticated parties, and CIPPIC's proposed arguments risked expanding the scope of the appeal without providing a useful contribution.

The Crown appealed the sentence imposed on the respondent for dangerous operation of a motor vehicle and flight from police, arguing errors in principle and demonstrable unfitness.

The Court of Appeal found that the trial judge misapprehended the respondent's prior custodial sentences and mischaracterized her criminal record as unrelated.

The Court concluded that the original six-month custodial sentence was demonstrably unfit given the gravity of the offences and the respondent's high degree of moral responsibility and history of defying authority.

The appeal was allowed, and an additional 18 months less a day of incarceration was imposed.

The appellant appealed his convictions and life sentence for terrorism-related offences, including conspiracy to commit murder.

He raised several grounds of appeal, arguing the trial judge erred in handling national security privilege claims during O'Connor and Garofoli applications, failing to sever his trial from a disruptive co-accused, misdirecting the jury on the law of conspiracy, and finding the co-accused fit for sentencing.

He also alleged a reasonable apprehension of bias based on an out-of-court comment by the trial judge praising an undercover agent.

The Court of Appeal dismissed all grounds, finding no procedural or legal errors that compromised trial fairness, and upheld the life sentence as fit for the gravity of the offences.

The appellant, convicted of first-degree murder, appealed his conviction on two grounds: improper cross-examination by the Crown regarding blood spatter evidence and improper cross-examination regarding a gun.

The Court of Appeal found no error or unfairness in the first ground, ruling that the Crown was entitled to challenge the appellant's version of events with contradictory reliable evidence.

Regarding the second ground, while the Crown conceded the questions should not have been asked, the court found no trial unfairness given the brevity of the exchange, the lack of objection from defence counsel, and proper jury instructions on the burden of proof.

The appeal was dismissed.

The appellant challenged the appeal judge’s dismissal of her appeal from a Consent and Capacity Board decision, which had confirmed her involuntary admission to the Centre for Addiction and Mental Health (CAMH).

The appeal judge dismissed the appeal as moot because the appellant had been discharged from CAMH.

The Court of Appeal upheld this decision, finding no live controversy and no special circumstances to warrant exercising its discretion to hear the moot appeal.

The court rejected arguments that the appeal right would become illusory or that appellate guidance was needed on the interpretation of Box B criteria under the Mental Health Act.

The appellant, Timothy Lee, appealed his convictions for first-degree murder, manslaughter, and attempting to unlawfully cause bodily harm, stemming from a "Mr. Big" undercover operation.

He argued the trial judge erred in admitting his inculpatory "Mr. Big" statements and earlier statements about prior cocaine dealing.

The Court of Appeal dismissed the appeal, finding the trial judge properly applied the Hart test for Mr. Big confessions, balancing probative value against prejudicial effect, and did not err in admitting the cocaine dealing statements.

The court found the Mr. Big statements sufficiently reliable given corroborating evidence and the absence of police misconduct amounting to abuse of process, despite an undercover officer discouraging legal advice.

The appellant, B.W., appealed his conviction for multiple sexual offences and his six-year global custodial sentence, which included a lifetime Sex Offender Information Registration Act (SOIRA) order and a ten-year internet ban.

The appeal challenged the trial judge's credibility assessment of the complainants, alleging collusion, unaddressed inconsistencies, and misapprehension of evidence.

The Court of Appeal dismissed the conviction appeal, finding no palpable and overriding errors in the trial judge's credibility findings or assessment of collusion risk.

However, the court granted leave to appeal the sentence, substituting the lifetime SOIRA order with a twenty-year order based on the unconstitutionality of the previous SOIRA provisions (R. v. Ndhlovu) and removing the ten-year internet ban, which was erroneously included in the prohibition order.

The accused appealed a finding of not criminally responsible on account of mental disorder (NCRMD), arguing procedural unfairness and insufficient reasons from the trial judge.

The Crown conceded the trial judge's reasons were inadequate.

The Court of Appeal allowed the appeal, set aside the NCRMD finding, and ordered a new trial, emphasizing the critical importance of procedural fairness in NCRMD cases due to the significant deprivations of liberty involved.

The appellant was convicted of two counts of sexual interference involving two child victims.

The appeal challenged the trial judge's credibility findings, specifically regarding the admission of cross-count similar act evidence and the consideration of unconscious collusion between the complainants.

The appellant also argued the trial judge failed to properly apply the second prong of the R. v. W.(D.) test for reasonable doubt.

The Court of Appeal dismissed the appeal, finding no error in the trial judge's credibility findings or application of legal principles, noting that the similar act evidence was used only in the alternative and the trial judge's reasons were clear and owed deference.

This is an appeal from conviction and sentence.

The appellant challenged the dismissal of his s. 11(b) Charter application, arguing the trial judge erred in characterizing a 60-day period as an exceptional COVID-19 delay without evidence and in double-counting a 7-day defence delay.

The Court of Appeal dismissed both arguments, affirming the trial judge's consideration of local circumstances for the COVID-19 delay and finding no double-counting.

The appellant also sought leave to appeal his 6-month custodial sentence, requesting a conditional sentence.

Leave was granted, but the sentence appeal was dismissed, as the Court found no error in principle or unfitness.

This endorsement from the Court of Appeal for Ontario addresses a non-publication order under s. 517 of the Criminal Code that was imposed at a bail hearing in the court below.

The endorsement states that the full decision, which contains information covered by this order, will not be published online until the non-publication order ceases to be in effect.

In the interim, a physical copy of the decision is available at the Court of Appeal Registry.

The underlying matter is an application to set aside a detention order.