OCA 2003

The appellant appealed his conviction, challenging the trial judge's finding that his statement was voluntary and arguing that police conduct regarding his status as a confidential informant constituted an abuse of process.

The Court of Appeal dismissed the appeal, finding that the trial judge's findings of fact were supported by the evidence and that the alleged police misconduct post-dated the statement and did not affect trial fairness.

The court also declined to make a non-publication order, noting the appellant's status had been public record for years.

The appellant appealed his conviction and sentence.

The conviction appeal was abandoned and dismissed.

On the sentence appeal, the Court of Appeal found the sentencing judge erred by failing to credit the appellant for one year of pre-trial custody spent at the Toronto East Detention Centre, having mistakenly believed the time was solely due to parole revocation.

Leave to appeal sentence was granted and the sentence was reduced by one year to 12 years consecutive.

The defendant moved for directions regarding a proposed appeal from an order dismissing its Rule 21 motion to dismiss or stay the action.

The defendant sought a determination on whether the order was interlocutory or final, and if final, an extension of time to appeal.

The Court of Appeal held that the order was interlocutory because the motions judge declined to decide the issues due to conflicting evidence and complexity, meaning no substantive rights were finally adjudicated.

The motion for an extension of time was dismissed for lack of jurisdiction, but the defendant successfully obtained the clarification it sought.

The appellants were convicted of possession of heroin for the purpose of trafficking following a police search of an apartment and a vehicle.

They appealed their convictions on several grounds, including the validity of the search warrant, jury instructions on the burden of proof (the W.(D.) instruction), and the reasonableness of the verdicts.

The Court of Appeal dismissed the appeal of the first appellant, finding the jury instructions adequate and the verdict reasonable based on the evidence found in his vehicle.

However, the Court allowed the appeal of the second appellant, concluding that the verdict was unreasonable as there was insufficient evidence connecting him to the drugs found in the apartment, especially given his acquittal on the trafficking charge.

The respondents in a civil appeal brought a motion to quash the part of the appeal that relied on the alleged incompetency of the appellant's trial counsel.

The moving parties argued that incompetence of counsel is not a recognized ground for a civil appeal, that the appellant had already recovered damages from his former lawyer, and that the appeal lacked merit.

The Court of Appeal dismissed the motion to quash, finding that the ground relating to a mistrial was sufficiently interrelated with the other grounds and should be considered by the panel hearing the appeal.

The court also directed that the appellant's former counsel be served with the materials and given an opportunity to respond.

The appellant appealed his convictions for wilfully attempting to obstruct justice and failing to comply with a recognizance, arising from conversations with a Crown witness while awaiting trial.

The Court of Appeal allowed the appeal and ordered a new trial.

The trial judge erred by failing to assess the appellant's mens rea regarding his belief that, as a self-represented accused, he was permitted to speak to witnesses.

Furthermore, the trial judge misapprehended the evidence by finding the witness felt intimidated, which the Crown conceded was not supported by the record.

The Crown appealed a trial judge's order staying the respondent's second-degree murder trial for abuse of process and unreasonable delay under s. 11(b) of the Charter.

The trial judge had found over 150 Charter breaches by police and Crown counsel.

On appeal, the respondent conceded the trial judge's findings were unsupportable but argued the stay should be upheld because her trial counsel's incompetence caused the delay.

The Court of Appeal allowed the Crown's appeal, finding no evidence the respondent was unaware of her counsel's strategy, and set aside the stay of proceedings and costs order, directing a new trial.

The appellant, a charity licensed to sell break open lottery tickets (BOTs), brought a class action seeking restitution of a provincial administration fee, arguing it was an unconstitutional indirect tax.

The respondents successfully moved for summary judgment to strike the restitution claim, adducing evidence that the fee was borne by consumers through a reduced prize board, not by the charities.

The Court of Appeal upheld the summary judgment, finding the appellant failed to adduce evidence showing a genuine issue for trial regarding who bore the burden of the fee or its entitlement to restitution.

The appellant appealed his convictions for possession of cocaine for the purpose of trafficking and possession of proceeds of crime, as well as his sentence.

He argued that the trial judge failed to instruct the jury to consider charges separately, that a strip search violated his Charter rights, and that a police expert gave inadmissible evidence on the ultimate issue.

The Court of Appeal dismissed the appeal, finding no miscarriage of justice in the jury instructions, an inadequate record for the Charter claim, and that the expert evidence was admissible under the Mohan criteria.

The successful respondents on an appeal regarding class action certification sought costs of $90,000 on a partial indemnity basis.

The unsuccessful appellants argued that no costs should be awarded pursuant to s. 31(1) of the Class Proceedings Act, 1992, claiming the matter was a test case raising novel points of law and public interest.

The Court of Appeal rejected the argument for no costs.

Considering the $100 million claim size, the substantial preparation required, and the fact that much preparation was already done for the Divisional Court appeal, the Court fixed costs at $50,000 on a partial indemnity scale.

The appellants appealed the appointment of an administrator for a condominium corporation and the award of substantial indemnity costs against them.

The Court of Appeal upheld the appointment of the administrator, finding no palpable and overriding error in the motion judge's conclusion that a state of disequilibrium existed due to tension between two groups with divergent interests regarding the transient use of units.

However, the Court granted leave to appeal costs and substituted an award of partial indemnity costs, finding no basis for substantial indemnity costs.

The appellant was convicted by a jury of conspiracy to possess stolen motor vehicles and four counts of possession of stolen motor vehicles.

On appeal, the appellant argued that the trial judge erred in his jury instructions regarding the inference available from recent possession of stolen property.

The Court of Appeal agreed, finding that the trial judge improperly conflated the issues of possession and guilty knowledge, and mischaracterized the defence's position by suggesting the appellant had offered an explanation for possession when he had denied possession entirely.

The appeal was allowed, the substantive possession and conspiracy convictions were quashed, and a new trial was ordered.

The appellants, practitioners of Falun Gong, appealed an order striking out their claims for libel, incitement of hatred, crimes against humanity, and negligent research against a newspaper publisher.

The Court of Appeal dismissed the appeal, holding that the allegedly defamatory article about Falun Gong did not identify the appellants individually, and therefore the words were not published 'of and concerning' them.

The court also upheld the striking of the other claims, finding they were essentially subsidiary torts that could only be addressed under the law of defamation.

The appellant appealed a trial judgment regarding a security interest in crops.

The Court of Appeal found that the loan agreement expressly authorized the sale of the secured crops on a farm-to-farm basis.

Because the sale was authorized, it fell within s. 25(1) of the Personal Property Security Act, meaning the respondent took title to the crops free and clear of the security interest.

The appeal was dismissed.

The appellant appealed a summary judgment enforcing a settlement agreement.

The Court of Appeal found no basis to interfere with the motion judge's conclusion that all essential terms of the 'clean break' scenario were settled by June 16, 2003.

The appeal was dismissed with costs fixed at $10,000.

The appellant appealed an order regarding his activities in a condominium unit, arguing that the respondent's affidavit evidence was inadmissible for non-compliance with Rule 39.01(5).

The Court of Appeal reviewed the trial judge's order and found that each paragraph was reasonably supported by admissible evidence based on the personal knowledge set forth in the affidavit.

The appeal was dismissed with costs awarded to the respondent.

The Crown applied for a stay of a summary conviction appeal court judgment that affirmed the dismissal of marijuana possession charges on the basis that the offence was unknown to law in Ontario.

The Crown also sought to expedite the appeal.

The Court of Appeal dismissed the application for a stay, finding no jurisdiction to stay the reasons underlying a dismissal of a charge or to suspend the doctrine of stare decisis.

However, the request to expedite the appeal was granted.

The appellant appealed convictions for sexual assault and sexual interference arising from historical allegations of abuse by a child complainant, and also sought leave to appeal sentence.

The Court of Appeal held that, in the particular circumstances of the case, the jury's questions about credibility in the absence of tangible evidence and the meaning of reasonable doubt required a renewed W.(D.) instruction during recharge.

The failure to repeat that instruction created a risk that the jury had lost sight of the burden of proof and the bases on which it was required to acquit.

Although the court rejected the argument that the guilty verdicts were unreasonable, it allowed the conviction appeals, set aside the convictions, and ordered a new trial.

The respondent, an Ontario resident, was catastrophically injured in a single-vehicle accident in New Mexico while driving a vehicle registered and insured in New Mexico.

She sought statutory accident benefits from the Ontario Motor Vehicle Accident Claims Fund.

The trial judge declared her entitled to the benefits.

On appeal, the Court of Appeal upheld the finding that she was ordinarily resident in Ontario but allowed the appeal on the basis that the accident did not fall within the scope of Ontario's motor vehicle insurance regime.

The court held that Part VI of the Insurance Act did not apply because the vehicle was not required to be registered in Ontario and was not being operated in Ontario, meaning she had no recourse against the Fund.

The appellant appealed the dismissal of her application for a declaration that a transfer of title and mortgage registered against the family home were of no force and effect.

The property had been transferred to the mother pursuant to a previous judgment, which also gave the appellant a 35% beneficial interest in the proceeds if the property was sold.

The mother transferred the property to two other siblings and registered a mortgage.

The Court of Appeal allowed the appeal, finding that the previous judgment made the mother a trustee of the property at the point of sale, and she had not proven that a valid sale at fair market value occurred.

The matter was referred back for trial.