OCA 2006

The appellant appealed his conviction for carrying a concealed weapon (a pellet gun) contrary to s. 90(2) of the Criminal Code.

The trial judge had concluded the pellet gun was a firearm and therefore a weapon.

The Court of Appeal held that the trial judge erred by failing to first consider whether the pellet gun was a weapon before finding it was a firearm.

Given the evidence that it was a spring-mechanism 'toy pellet gun' and no evidence it was used for a purpose dangerous to the public peace, a finding that it was a weapon was not available.

The appeal was allowed and an acquittal substituted.

The appellant appealed an order dissolving a constructive trust imposed on the shares of a joint venture vehicle.

The constructive trust had been imposed to secure the repayment of a loan and the payment of the appellant's share of the joint venture profits.

After the respondents paid the amounts owing, they moved to discharge the trust to utilize accumulated tax losses.

The Court of Appeal dismissed the appeal, finding that the constructive trust had served its purpose and the trial judge properly exercised his equitable discretion to dissolve it once the appellant had elected to pursue an accounting and received payment.

The plaintiff was injured in a motor vehicle accident with the defendant, who was driving a cube van.

The defendant's auto insurance policy excluded coverage for vehicles over 4,500 kg.

The plaintiff's insurer, CAA, appealed a motion judge's finding that the defendant's insurer, Royal & Sun Alliance, was not obliged to compensate the plaintiff under s. 258(1) of the Insurance Act.

The Court of Appeal dismissed the appeal, holding that s. 258(1) is only triggered if the insured could have been entitled to indemnity under the policy.

The appellant was convicted of importing cocaine and sentenced to seven years' imprisonment.

On appeal, she argued the trial judge improperly restricted the Parks question during jury selection and misdirected the triers on the challenge for cause.

The Court of Appeal dismissed the conviction appeal, finding the permitted question encompassed both the attitudinal and behavioural components of the Parks inquiry and the triers were not misled.

However, the sentence appeal was allowed because the trial judge erred by failing to give the appellant credit for her cooperation with the police.

The sentence was reduced to six years.

The appellant appealed his total sentence of 43 months imprisonment for two sets of offences, including impaired driving and driving while disqualified.

The appellant had a lengthy record with eight prior convictions for drinking and driving.

The Court of Appeal upheld the global sentence as fit but found the sentencing judge erred in denying two-for-one credit for pre-sentence custody due to an adjournment requested by the appellant's counsel.

The appeal was allowed in part to reduce the sentence on the second impaired driving charge by 1.5 months to reflect the proper pre-sentence custody credit.

The appellant father appealed a trial judgment that awarded sole custody of the parties' three children to the respondent mother, imputed income to him for child support purposes, awarded open-ended spousal support, and determined the equalization of net family property including a farm.

The Court of Appeal upheld the custody award and the finding of intentional underemployment, noting the trial judge was in the best position to assess the evidence.

However, the Court allowed the appeal regarding spousal support and property equalization, finding the trial judge's reasons were inadequate to permit appellate review.

Those issues were remitted for a new trial.

The Crown appealed the respondent's acquittals on charges of aggravated assault and assault with a weapon.

The Court of Appeal found that the trial judge erred by concluding she was prohibited from comparing the respondent's evidence to the complainant's evidence, misconstruing the W. (D.) framework.

The trial judge also erred by making a blanket statement that it is dangerous to draw conclusions from demeanour, thereby overstating the cautions relating to demeanour evidence.

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

The appellant appealed his convictions for robbery with a firearm and aggravated assault, as well as his sentence.

The charges arose from a group attack where the victim was shot and paralyzed.

The appellant argued the trial judge erred in assessing evidence of his finger wound, relying on a co-accused's statement, and finding he knew a real firearm was used.

The Court of Appeal dismissed the conviction appeal, finding the trial judge's conclusions were supported by the accumulation of evidence and the error regarding the co-accused's statement was harmless.

The sentence appeal was also dismissed due to the severe aggravating factors.

The Crown appealed a Summary Conviction Appeal Court decision upholding the respondent's acquittal on a charge of operating a motor vehicle with a blood alcohol concentration exceeding the legal limit.

The trial judge had excluded the breath readings under s. 8 of the Charter, finding the police officer lacked reasonable and probable grounds because the approved screening device had not been calibrated within departmental guidelines.

The Court of Appeal allowed the appeal, holding that the trial judge applied the wrong test by effectively requiring the Crown to prove the device was in good working order rather than assessing whether the officer had reasonable grounds on an objective basis.

A new trial was ordered.

The appellant appealed his conviction for breaching a curfew condition of his recognizance.

The trial judge had convicted the appellant based on a police officer's testimony that a jacket found in the appellant's bedroom at 11:30 p.m. was moist and warm, suggesting it had just been worn.

The Court of Appeal held that this evidence was insufficient to establish beyond a reasonable doubt that the appellant was outside his residence after his 10:00 p.m. curfew.

The court concluded the verdict was unreasonable, allowed the appeal, quashed the conviction, and entered an acquittal.

The appellant appealed his conviction for carrying a concealed weapon contrary to s. 90(2) of the Criminal Code.

The trial judge had convicted the appellant on the basis that the pellet gun seized was a firearm, and therefore a weapon.

The Court of Appeal found that the trial judge erred by failing to first consider whether the pellet gun was a weapon before concluding it was a firearm.

Given the evidence that it was a spring-discharged 'toy pellet gun' and the lack of evidence it was used for a purpose dangerous to the public peace, a finding that it was a weapon was not available.

The appeal was allowed and an acquittal substituted.

The appellant was convicted of two counts of assault and two counts of uttering threats against his wife.

His summary conviction appeal was dismissed, though his sentence was varied to a conditional discharge.

He sought leave to appeal to the Court of Appeal, arguing the trial judge misapprehended evidence and failed to consider inconsistencies in the complainant's testimony.

The Court of Appeal granted leave but dismissed the appeal, finding no error in the summary conviction appeal court judge's conclusion that the trial judge's credibility findings were entitled to deference and supported by the record.

The appellant was convicted of two counts of common assault against his wife and sentenced to consecutive six-month terms of imprisonment, plus three years' probation, after receiving thirteen months' credit for pre-sentence custody.

On appeal, the Court of Appeal found the effective penitentiary sentence disproportionate to the offences, which consisted of a kick and a slap, despite the appellant's lengthy criminal record and the context of domestic assault.

The Court also found a probationary term restricting the appellant's presence in his wife's home to be unreasonable.

The appeal was allowed, the sentence reduced to time served, and the specific probationary term struck out.

The appellant pleaded guilty to unlawful confinement, assault, and robbery after luring the complainant into a car, beating her, and robbing her.

She appealed her nine-month custodial sentence, arguing it created an unjustified disparity with her co-accused and that a conditional sentence should have been imposed.

The Court of Appeal dismissed the appeal, finding ample basis for a harsher sentence given the appellant's leadership role, the extent of the violence she inflicted, her age relative to the co-accused, and her prior criminal record for violent offences.

The appellant, an inmate, was convicted of extortion after leaving a voicemail demanding $1,000 from a lawyer under threat of death to the lawyer and his family.

He was sentenced to six years' imprisonment.

On appeal, the appellant abandoned his conviction appeal but argued the sentence was outside the appropriate range.

The Court of Appeal agreed, noting the trial judge relied on distinguishable cases involving counselling murder.

The sentence was varied from six years to four years, to run concurrently with his existing sentences.

The respondent obtained a default judgment against a former employee who defrauded it.

The respondent obtained an order authorizing the appointment of an equitable receiver to collect the employee's pension benefits upon retirement.

The employee died before retiring, and the respondent successfully moved to amend the order to collect the death benefits.

The designated beneficiaries appealed.

The Court of Appeal allowed the appeal, holding that section 66(1) of the Pension Benefits Act exempts pension benefits from execution, and it is not just or convenient to appoint an equitable receiver to circumvent this statutory protection.

The designated beneficiaries had a contingent equitable right to the death benefits, which vested upon the employee's death.

The appellant, appearing in person, requested an adjournment of his appeal due to an administrative mix-up where amicus curiae was appointed instead of legal counsel.

The appellant had just received the factums and did not have the appeal book.

The Court of Appeal granted the adjournment and ordered the appointment of counsel for the appellant pursuant to the Criminal Code.

The tenant (TDL) leased property from a landlord and later signed a postponement and non-disturbance agreement (PNDA) with the landlord's mortgagee.

TDL obtained a judgment against the landlord for damages and costs, with a right to set off the amount against rent.

When the landlord defaulted on the mortgage, the mortgagee went into possession and demanded rent without the set-off.

The Court of Appeal held that under the PNDA, the mortgagee stepped into the landlord's shoes and assumed the existing state of accounts, including TDL's right of set-off.

The appeal was allowed.

The appellant, who had previously pleaded guilty to fraud over $5000, brought two civil proceedings against the police and others for false arrest, false imprisonment, defamation, conspiracy, and abuse of authority.

The respondents successfully moved for summary judgment.

The Court of Appeal dismissed the appeals, finding no error in the motion judge's conclusion that there was no genuine issue for trial, as the respondents acted lawfully and had reasonable and probable grounds for the charges.

The plaintiffs brought a motion for the production of a memorandum detailing a conversation between the defendants' former counsel and their expert witness, Dr. Grafius.

The defendants claimed the memorandum was protected by litigation privilege.

The Court of Appeal held that rule 31.06(3) of the Rules of Civil Procedure must be interpreted broadly, requiring the disclosure of all foundational information for a testifying expert's report.

The court ordered the production of the memorandum, finding that litigation privilege does not protect the foundational information of an expert called to testify at trial.