OCA 2003

The appellant appealed his conspiracy convictions on the basis that the trial judge erred in refusing to permit cross-examination of the affiant and sub-affiants during an application to exclude wiretap evidence.

The Court of Appeal found that the trial judge applied too strict a test, requiring a showing of fraud or misrepresentation, rather than the correct standard of showing a basis that cross-examination would elicit testimony tending to discredit a pre-condition to the authorization, such as investigative necessity.

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

The appellant appealed his convictions on two counts of attempting to obstruct justice.

The charges arose from allegations that he confined a witness to prevent her from testifying and forced her to sign a letter recanting her police statement.

The trial judge admitted the witness's videotaped police statement for its truth under the K.G.B. framework.

The Court of Appeal upheld the admission of the statement, finding the trial judge's reasons sufficient and the reliability criteria met.

The court dismissed the appeal regarding the confinement charge but allowed the appeal on the recantation letter charge, finding no evidence that force was used or that the appellant knew the recantation was false.

The Liquidator of the Christian Brothers of Ireland in Canada appealed a motions judge's refusal to approve a $495,495 premium on the legal fees of its counsel, WeirFoulds LLP.

The law firm had acted on a contingency-like basis when the estate became insolvent, successfully recovering $19 million for the estate to compensate victims of child abuse.

The Court of Appeal allowed the appeal, finding that the motions judge erred by failing to consider the significant financial risk assumed by the law firm, the Liquidator's business decision to approve the premium, and the non-opposition of the victims' representative counsel.

The premium was deemed reasonable and approved in full.

The City of Toronto appealed a decision declaring its amending by-law unlawful.

The by-law purported to retroactively and prospectively require the municipal pension plan to pay the City's internal administrative costs out of the pension fund.

The Court of Appeal dismissed the appeal, holding that the pension plan constituted a true trust in favour of the employees.

The court found that the City did not reserve a power of revocation, and a general power of amendment does not include the power to revoke.

Therefore, the by-law constituted an unlawful partial revocation and breach of trust.

The plaintiff was injured on a roller coaster in October 1995 and commenced an action in February 2002.

The defendants brought a motion for summary judgment, arguing the six-year limitation period had expired.

The motions judge dismissed the motion, finding the limitation period had not expired.

On appeal, the majority of the Court of Appeal allowed the appeal and dismissed the action, holding that the plaintiff knew or reasonably should have known all elements of her claim in October 1995, and the mere possibility of no causal connection did not delay the limitation period.

John Nikitin was convicted of manslaughter after his truck struck and killed a child who was crossing the road to a stopped school bus.

He appealed his conviction on grounds including the admission of police re-enactment evidence, Crown counsel's closing address, and an unreasonable verdict.

The Crown appealed the 22-month conditional sentence.

The Court of Appeal dismissed both appeals, finding the experiment evidence was properly admitted as factual evidence, the trial was fair, and the sentence was entitled to deference given the offender's age, health, and lack of criminal record.

The appellant sought judicial review of a decision by the Minister of Justice refusing a request for reconsideration.

The Court of Appeal dismissed the appeal, finding that the Minister carefully considered the matters raised and that his reasons amply justified the refusal on any test for reconsideration.

The appellants appealed a trial judgment awarding damages for the loss of the respondents' research materials, which were damaged by water escaping from the appellants' above-ground pool.

The Court of Appeal dismissed the appeal, finding no error in the trial judge's assessment of damages based on the cost of replacing the research, as the materials had significant value for continuing research and academic teaching.

The court also upheld the costs order in favour of a third party insurer.

The appellant appealed an order granting summary judgment that dismissed his claim against Linamar for intentional interference with economic relations.

The Court of Appeal allowed the appeal, finding that the record contained evidence of actions and documents involving Linamar such that it could not be said there was no genuine issue for trial.

The summary judgment was set aside, and costs of the appeal were fixed at $10,000.

The appellant brought a motion to review an order of a single judge of the Court of Appeal refusing to waive administrative fees for filing and perfecting her appeal.

The appellant argued she was unable to pay the fees and had been refused legal aid.

The panel upheld the single judge's finding that the appellant failed to prove the fees would frustrate her right to prosecute the appeal.

The court noted that even if the principles from *Polewsky* regarding constitutional rights of access for indigent persons applied, the appellant's factual circumstances did not warrant a fee waiver.

The motion was dismissed.

The appellant appealed a motion judge's decision dismissing its claim for intentional interference with contractual relations against a condominium corporation.

The condominium corporation had enforced rules prohibiting the rental of units for transient or hotel purposes.

The Court of Appeal dismissed the appeal, finding overwhelming evidence that the units were used for such purposes and that the corporation was statutorily obliged to enforce its rules.

The court also agreed that the appellant failed to raise a triable issue regarding economic loss, as its evidence was merely second and third hand.

The parties separated, executed a separation agreement dividing their property, and later reconciled.

The trial judge found they reconciled in February 1998 and that the property division in the separation agreement survived the reconciliation, resulting in no equalization payment.

On appeal, the Court of Appeal upheld the reconciliation date but found the trial judge erred in concluding the entire property division survived.

The Court held that while the specific transfer of the matrimonial home was intended to be final, the rest of the agreement was voided by the reconciliation.

The appeal was allowed, and an equalization payment was ordered based on a modified Net Family Property Statement.

The respondent was charged with possession of marijuana in April 2002.

He successfully moved to dismiss the charges on the basis that the prohibition in section 4 of the Controlled Drugs and Substances Act was of no force or effect at the time, following the Court of Appeal's earlier decision in R. v. Parker.

The Crown appealed.

The Court of Appeal dismissed the appeal, holding that because the Marihuana Medical Access Regulations did not create a constitutionally valid medical exemption (as determined in the companion case Hitzig v. R.), the criminal prohibition against possession of marijuana remained of no force and effect when the respondent was charged.

The appellant appealed a finding that he breached his conditional sentence, arguing the sentence had already expired.

The dispute centered on the interpretation of s. 742.6 of the Criminal Code and whether the appellant should be credited for time spent in custody before bail determinations on previous breaches.

The Court of Appeal held that a conditional sentence starts running again immediately upon the offender being detained in custody, regardless of whether a formal show cause hearing has occurred.

The appeal was allowed and the breach finding was set aside.

The appellant appealed a trial decision, arguing the trial judge erred by attributing her testimony to her mental condition without expert evidence and by finding the limitation period had expired.

The Court of Appeal dismissed the appeal, holding that the trial judge was entitled to assess credibility based on apparent mental condition without expert evidence, and that there was ample evidence the limitation period had expired.

The appellant appealed his conviction imposed by a judge and jury.

In light of the Court of Appeal's disposition of the co-accused's appeal, the appeal was allowed, the conviction was quashed, and a new trial was ordered.

The appellant insurer appealed an order holding it responsible for the first $200,000 of damages payable to the plaintiffs, who were intentionally struck and injured by the insured's vehicle.

The insurer argued it was not obliged to indemnify the insured due to his intentional criminal act under s. 118 of the Insurance Act.

The Court of Appeal dismissed the appeal, holding that ss. 258(1) and (4) of the Act create an absolute liability on the part of the insurer toward innocent third parties, which is not dependent on the insured's right to indemnity.

The appellant appealed his conviction, arguing the trial judge erred in applying the reasonable doubt standard.

The Summary Conviction Appeal judge affirmed the conviction, finding the trial judge properly instructed himself to decide credibility in light of the entire evidence.

The Court of Appeal agreed, finding no error by the trial judge or the Summary Conviction Appeal judge, and dismissed the appeal.

The appellant appealed his conviction and sentence for selling cocaine, arguing that he was deprived of the effective assistance of counsel because he represented himself at trial.

The Court of Appeal dismissed the appeal, holding that ineffective assistance claims do not apply to self-represented accused.

The Court found that the appellant, though unfamiliar with criminal procedure, intelligently advanced his defence of mistaken identity and received a fair trial.

The sentence appeal was also dismissed as the sentence was not unfit.

The appellant was charged with possession of marihuana for the purpose of trafficking.

He brought a motion to stay the charge, arguing that the declaration of invalidity in R. v. Parker deleted marihuana from Schedule II of the CDSA for all purposes, meaning the charge no longer existed.

The motion judge dismissed the motion.

On appeal, the Court of Appeal held that a declaration of invalidity does not delete a provision from a statute, but renders it of no force or effect to the extent of its inconsistency.

The Parker declaration only applied to the simple possession charge under s. 4, not the trafficking charge under s. 5(2).

The appeal was dismissed.