OCA 2007

The Crown appealed a nine-month conditional sentence imposed on the respondent for sexual assault, sexual interference, assault with a weapon, and simple assault against his stepchildren.

The Court of Appeal allowed the appeal, holding that a conditional sentence is rarely appropriate for sexual touching of children by adults in a position of trust, absent exceptional circumstances.

A twelve-month custodial sentence was substituted, with nine months' credit for the conditional sentence served.

The court also ordered a new hearing on the Crown's application for a Sex Offender Information Registration Act order, as the sentencing judge gave no reasons for finding it grossly disproportionate.

The mother appealed an order dismissing her appeal from a summary judgment that granted Crown wardship without access.

The child had been placed with an adoptive family after the mother struggled with addiction and instability.

The Court of Appeal found no error in the lower court's decision.

Although the mother submitted fresh evidence showing she had rehabilitated herself, the court held it was not in the child's best interests to be removed from her adoptive family after significant time had passed.

The appellant appealed the trial judge's findings of fact and credibility assessments, as well as the costs award.

The Court of Appeal dismissed the appeal, finding that the trial judge's factual findings were reasonably open to him on the evidence and that the appellant failed to demonstrate palpable and overriding error.

The court also upheld the costs award, noting that costs should follow the result of the trial.

The appellants' sailboat was seized and stored at the respondent's facility.

A bailiff provided a notice of lien that included amounts unrelated to the respondent's storage charges.

The application judge found the notice valid and awarded the respondent a lien and judgment for $29,920.

On appeal, the Court of Appeal held that the notice was invalid because it overstated the redemption amount by including third-party debts.

Consequently, under s. 4(6) of the Repair and Storage Liens Act, the respondent's lien was limited to 60 days of storage charges ($1,200), and the judgment was set aside.

The appellants requested to re-open the appeal for further argument on the correct Initial Fair Market Value date for a property.

The Court of Appeal denied the request, noting that the interpretation of the agreement regarding the valuation date was not directly addressed at trial or on appeal, but arose indirectly regarding whether an enforceable agreement existed.

The Court held that the issue of the valuation date was not central to the appeal and that the record amply supported the trial judge's finding of a valid oral agreement.

The interpretation of the agreement was left to be resolved by an arbitrator.

The appellants appealed a trial judgment holding them liable as directors for unpaid wages owed to the respondent employees following the company's bankruptcy.

The Court of Appeal dismissed the appeal of two directors, finding that the employees' agreement to postpone payment until the company was in funds ended upon bankruptcy, making the debts payable.

However, the Court allowed the appeal of a third director, finding that the action against him was commenced beyond the six-month limitation period under the Business Corporations Act following his resignation.

The appellants appealed the dismissal of their personal injury claim.

The trial judge had found the plaintiff's evidence regarding how the accident occurred to be confusing and inconsistent due to her age and illness, and drew an adverse inference from the failure to call a witness to the accident.

The Court of Appeal upheld the trial judge's findings, concluding there was no prima facie case of negligence, and dismissed the appeal with costs.

The appellant appealed a summary judgment enforcing a guarantee.

He argued the motion judge impermissibly made credibility findings and that the principal debtor's bankruptcy suspended his liability under the guarantee.

The Court of Appeal dismissed the appeal, holding that the motion judge properly found the appellant failed to put his best foot forward, and that a debtor's bankruptcy does not release a guarantor absent specific wording in the guarantee.

The appellant appealed his conviction, arguing that the trial judge's charge to the jury on reasonable doubt was deficient because it failed to link the W.D. charge to the issue of credibility.

The Court of Appeal dismissed the appeal, finding that while the specific instruction on resolving conflicting evidence was not a model of clarity, the jury charge read as a whole left no misapprehension about the correct standard of proof.

The appellant appealed his conviction for failing to provide a breath sample.

He was stopped for a burnt-out headlight, smelled of alcohol, and provided thirteen unsuitable breath samples into a screening device by giving short, quick puffs despite instructions.

The trial judge found he intentionally refused to provide a proper sample.

The Court of Appeal dismissed the appeal, finding the trial judge's reasons were adequate and properly considered the evidence.

The appellant, a police officer, appealed his conviction for assault causing bodily harm.

The trial judge found that the appellant unlawfully detained the complainant and lacked reasonable grounds to arrest him for causing a disturbance, as the complainant's loud and rude protestations were instigated by the appellant's improper actions.

The summary conviction appeal judge upheld the conviction.

The Court of Appeal dismissed the appeal, finding no error in the lower courts' conclusions that there was no criminal disturbance and no reasonable grounds for arrest.

The appellant appealed his murder conviction, arguing the trial judge erred in instructing the jury on the common sense inference of intent and in delivering an inadequate Vetrovec warning.

The Court of Appeal dismissed the appeal, finding the instruction on intent was properly left as permissive and appropriate for party liability.

The Court also held the Vetrovec warning was adequate, noting both counsel approved the illustrations of potential confirmatory evidence and did not object to the instruction at trial.

The appellant appealed his sentence, arguing the trial judge over-emphasized general deterrence, failed to give sufficient weight to mitigating factors, and failed to consider pre-trial bail conditions.

The Court of Appeal dismissed the appeal, finding the sentence fit given the deliberate and prolonged course of deceitful conduct that seriously impacted the victim.

The court also held that the failure to advert to pre-trial bail conditions was not fatal.

The appellant appealed his conviction for using a firearm while committing an indictable offence and his sentence.

He had shot a friend in the eye with a pellet gun while intoxicated.

The trial judge found recklessness satisfied the mens rea for both aggravated assault and the firearm offence.

The Court of Appeal held that while the trial judge erred in equating the mens rea for the two offences, the factual finding that the appellant intended to point and fire the gun satisfied the general intent requirement for the firearm offence.

The appeal was dismissed.

The appellant appealed the dismissal of his application seeking a declaration that certain lands in Ontario are not public lands available for disposition or regulation by the Crown.

The motion judge struck the application on the basis that the courts lack authority to adjudicate challenges to Canada's sovereignty.

The Court of Appeal agreed, finding that the appellant's claim amounted to a challenge to sovereign jurisdiction, and dismissed the appeal.

Following an appeal that reduced the respondent's damage award from $55,000 to $1,000, the parties sought clarification on trial costs.

The appellants argued that the modest damage award justified no trial costs and relied on rules 57.05(1) and 76.13(3) regarding Small Claims Court and simplified procedure.

The Court of Appeal held that the respondent was successful at trial, the finding of negligence was not reversed, and it was reasonable to have brought the claim under the ordinary procedure.

The court awarded the respondent trial costs fixed at the previously agreed amount of $115,000.

The appellants appealed a motion judge's decision that the respondent bank, as the holder of the appellants' guarantee, was not a 'secured creditor' under section 2 of the Farm Debt Mediation Act.

The Court of Appeal agreed with the motion judge, finding that the respondent was not required to give the appellants notice under section 21(1) of the Act before commencing an action on the guarantee.

The appeal was dismissed with costs.

The appellant appealed his conviction and sentence, arguing that the trial judge failed to appreciate the unsavoury witnesses' motives to fabricate, provided insufficient reasons for judgment, and erred in rejecting a witness's evidence.

The Court of Appeal dismissed the appeal, finding that the trial judge appropriately cautioned himself regarding the unsavoury witnesses, provided reasons adequate for appellate review, and sufficiently explained his rejection of the witness's evidence.

The appellant appealed a decision of the Summary Conviction Appeal Court, which had upheld his conviction.

The Court of Appeal found that the Summary Conviction Appeal Court erred in concluding that the trial judge acted reasonably in denying an adjournment to the unrepresented appellant.

The trial judge had rejected the appellant's reasons without basis and failed to consider the importance of counsel given the Charter issues and the appellant's intention to testify.

Furthermore, the trial judge erred by treating his task as merely choosing between the evidence of the appellant and the police officer.

The appeal was allowed and a new trial was ordered.

The Court of Appeal issued a costs endorsement following an appeal.

As success was divided, the court ordered that each side bear its own costs for both the motion and the appeal, making no order for costs in the Court of Appeal or before the lower court judge.