OCA 2006

The appellant appealed his sentence for robbery, arguing the trial judge erred in rejecting a joint submission.

The Court of Appeal dismissed the appeal, finding the trial judge correctly applied the test for rejecting a joint submission, noting the appellant's lengthy criminal record, the seriousness of the offence, and the fact that counsel were unaware of the full extent of the record when making the joint submission.

The appellant appealed a 3-year sentence imposed for sexual offences, arguing the trial judge erred in applying the totality principle given his existing nine-year sentence for other sexual offences from the same time frame.

The Court of Appeal agreed, finding the additional three-year sentence infringed the totality principle.

Leave to appeal was granted, and the sentence was reduced to an additional one year of imprisonment to be served consecutively to the sentence the appellant was already serving.

The appellant appealed his sentence for breaching a recognizance under s. 810 of the Criminal Code.

The Court of Appeal found that the sentencing judge erred in principle by concluding the conduct was in the category of the most serious possible breaches.

While the offender's criminal history must be considered, not every breach mandates the maximum sentence.

The court granted leave to appeal, set aside the original sentence, and imposed a sentence of 18 months' imprisonment (12 months plus 6 months' time served) along with the original probation period.

The appellants failed to appear for the hearing of their appeal.

The Court of Appeal dismissed the appeal as abandoned and awarded the respondent $1,000 for disbursements.

The appellant appealed an order of the Superior Court of Justice and sought further disclosure.

The Court of Appeal found no error in the motion judge's disposition and dismissed the appeal.

The appellant appealed his convictions on four counts of fraud under $5,000 arising from his computer business, where he accepted cash from customers for computer systems that were never delivered.

He argued the findings of guilt were unreasonable because there was no evidence of the requisite mens rea for fraud.

The Court of Appeal dismissed the appeal, finding there was evidence capable of supporting the trial judge's conclusion that the appellant took the money knowing he could not or would not produce the goods.

The appellant appealed his convictions for producing marijuana and possession for the purpose of trafficking, arguing that the search warrant for his residence was invalid because it relied on an anonymous tip that only expressed a suspicion of criminal activity.

The Court of Appeal dismissed the conviction appeal, finding that while the tip itself was not compelling, the police officer's independent observations of heavy blinds, condensation, and a vent provided sufficient grounds for the warrant.

However, the Court allowed the sentence appeal based on fresh psychiatric evidence showing the appellant's severe depression and fragility.

The six-month custodial sentence was varied to an 18-month conditional sentence.

The appellants, a tree harvesting company and its principal, sued the respondent pulp and paper company for negligent misrepresentation and breach of contract after suffering financial ruin following the mechanization of their operations.

A jury found in favour of the appellants, awarding substantial damages.

However, the trial judge subsequently granted the respondent's reserved motion for non-suit on the negligent misrepresentation claim.

The Court of Appeal allowed the appeal, finding that the trial judge erred in granting the non-suit by weighing the evidence rather than determining if a prima facie case existed.

The Court reinstated the jury's verdict and dismissed the respondent's cross-appeal, holding that the jury's findings were supported by the evidence.

The young person pleaded guilty to first degree murder and using a firearm during the commission of an indictable offence.

He was sentenced to an intensive rehabilitative custody sentence (IRCS) based on a joint submission, receiving only three months credit for 17.5 months of pre-sentence custody.

On appeal, he argued the youth court judge erred in deferring the weapons sentence and failing to give full credit for pre-sentence custody.

The Court of Appeal dismissed the appeal, finding the judge intended the custodial portions to be served continuously and had discretion to reduce pre-sentence credit below a one-to-one ratio in exceptional cases involving joint submissions.

The appellant appealed an order denying a motion to amend a statement of claim to add a new cause of action.

The motion judge had found non-compensable prejudice and denied the motion.

The Court of Appeal held that there was an evidentiary basis for the motion judge's finding and that the decision was not unreasonable.

The appeal was dismissed without costs.

The respondent was convicted at trial of prowling at night after being found hiding in a residential backyard.

The summary conviction appeal judge quashed the conviction, holding that the Crown must prove the respondent intended to commit a specific evil act.

The Court of Appeal allowed the Crown's appeal and restored the conviction, clarifying that section 177 of the Criminal Code only requires proof of intentional prowling (stealthy traversing) without lawful excuse, and does not require proof of an underlying intent to commit a further specific offence.

The appellant was convicted of first degree murder for stabbing his wife.

At trial, he admitted to the killing but raised the defence of provocation, arguing he lost control after she made a comment implying infidelity.

He sought to introduce expert evidence on Islamic cultural views regarding female infidelity to support the subjective and objective elements of provocation.

The trial judge excluded hearsay evidence of the victim's statements to a hotel clerk and instructed the jury not to consider the appellant's cultural background for the objective 'ordinary person' test.

The Court of Appeal dismissed the appeal, finding the hearsay exclusion was a harmless error and that the provocation defence lacked an air of reality because there was no evidence the appellant personally held the cultural beliefs described by the expert.

The young person appealed his conviction and sentence for administering a stupefying drug to and sexually assaulting his cousin.

The appellant argued the trial judge erred in rejecting his father's alibi evidence.

The Court of Appeal held the trial judge properly concluded the alibi was incomplete as it left a window of opportunity for the offence.

The Court also upheld the sentence of 90 days' custody followed by probation, finding it appropriate under the Youth Criminal Justice Act given the breach of trust and violent nature of the offence.

The appellant appealed his conviction, arguing the verdict was unreasonable.

The trial judge had convicted the appellant based on a finding that he moved a hose and reel toward the victim, but simultaneously rejected the victim's evidence that the appellant threw the reel.

The Court of Appeal held that without the victim's rejected evidence, there was no evidence to support the trial judge's finding.

The appeal was allowed and an acquittal was entered.

The insurer appealed a jury verdict awarding the insureds compensatory and punitive damages following a fire that destroyed a commercial building.

The insurer had denied the claims based on arson, misrepresentation, and fraud.

The Court of Appeal allowed the appeal and ordered a new trial, finding that the trial judge misdirected the jury on the law of misrepresentation and the interpretation of a 'shut down' exclusion clause.

The Court also set aside the jury's $1.2 million award for loss of profits as unsupported by evidence, and found the $2.5 million punitive damages award to be grossly excessive.

The mother appealed a trial judgment granting joint custody of the children to the father and determining child support issues.

She argued the trial judge erred in awarding joint custody, failing to impute higher income to the father, and calculating section 7 expenses.

The Court of Appeal dismissed the appeal, finding no basis to interfere with the trial judge's best interests analysis or financial determinations.

A motion to admit fresh evidence was also dismissed, as the trial judge had remained seized of the custody issue for one year and was better positioned to address new complaints.

The appellant appealed his conviction.

At trial, the judge placed considerable emphasis on the complainant's emotional display during testimony, which related to an alleged threat against his mother.

However, the trial judge had previously precluded evidence on this issue, deeming it unnecessary.

The Court of Appeal held that relying on this emotional display after precluding evidence on the issue was unfair and deprived the appellant of the opportunity to make full answer and defence.

The conviction appeal was allowed and a new trial ordered.

The appellant insurer appealed a decision finding it had a duty to defend the respondents against a claim of negligent misrepresentation.

The Court of Appeal dismissed the appeal, agreeing with the application judge that the negligent misrepresentation claim was separate and distinct from the breach of contract claim, and therefore not derivative under the Scalera framework.

The court also found that the exclusion clauses in the policy did not relieve the insurer of its duty to defend.

The appellant appealed two dispositions of the Ontario Review Board.

The Court of Appeal dismissed the appeals as moot because a subsequent disposition order had been made in September 2005.

The Court declined to exercise its discretion to hear the merits despite the mootness, noting that any evidentiary issues regarding the appellant's alleged drug trafficking should be addressed at the next disposition hearing.

The appellant appealed his conviction and sentence, arguing that the police failed to provide him with a reasonable opportunity to exercise his right to counsel of choice.

The Court of Appeal dismissed the appeal, agreeing with the summary conviction appeal judge that the trial judge's reasons were exemplary and her finding was fully supported by the evidence.