OCA 2009

The appellant appealed his convictions for aggravated assault, criminal negligence causing bodily harm, and failure to provide the necessaries of life, as well as his 12-year global sentence.

The charges arose from the severe physical abuse of his infant son, resulting in permanent paralysis and brain damage.

The Court of Appeal dismissed the conviction appeal, finding no errors in trial fairness, the jury charge, or the admission of the appellant's statements to police.

The sentence appeal was also dismissed, with the court finding the 12-year sentence fit given the egregious breach of trust and devastating impact on the child.

The Crown appealed an 18-month conditional sentence imposed on the respondent for production of marijuana, possession for the purpose of trafficking, and theft over $5000 related to a commercial grow-op.

The Court of Appeal found that the sentencing judge erred in principle by conflating the forfeiture of offence-related property with general sentencing principles.

However, the majority held that a conditional sentence was still appropriate given the mitigating factors, including a guilty plea, employment, and family obligations.

The appeal was dismissed, with the court noting that the respondent had already served over eight months of the sentence.

The United States sought the extradition of the respondent for his alleged participation in a human smuggling operation.

The extradition judge discharged the respondent, finding insufficient evidence in the Record of the Case to warrant committal on charges of aiding unlawful entry and conspiracy.

On appeal, the Court of Appeal found that the certified Record of the Case contained sufficient evidence, including witness identification of the respondent as a guide and driver, and a certified summary of evidence of an agreement to smuggle individuals.

The appeal was allowed and the respondent was committed for extradition.

The Crown appealed a 100-day sentence imposed on the respondent for sexual assault and forcible confinement of his wife.

The Court of Appeal found the sentence demonstrably unfit given the gravity of the offences, which involved significant violence and degradation in the context of a marital breakdown while the respondent was on bail.

The Court determined a fit sentence would be 21 months.

However, because the respondent had already served the 100 days, was doing well in the community, and supported his children, the Court declined to reincarcerate him and instead imposed a conditional sentence for the remainder of the 21-month term.

The moving party sought to set aside a Registrar's order dismissing his appeal for delay.

The underlying appeal concerned an assessment of unpaid legal fees owed to the responding party.

The Court of Appeal dismissed the motion, finding that the moving party failed to provide a satisfactory explanation for the delay after retaining counsel, failed to perfect the appeal within an agreed-upon extension, and took no steps to perfect the appeal in the months following the dismissal.

The appellant appealed a decision of the Ontario Review Board refusing to order an independent assessment at the Royal Ottawa Hospital.

The appellant did not challenge his continued detention at Oak Ridge.

The Court of Appeal dismissed the appeal, finding the Board's conclusion that an independent assessment was unnecessary was reasonable and supported by the uncontradicted evidence of a doctor.

The appellant pleaded guilty to possession of a forged credit card and possession of property obtained by crime over $5,000.

He was sentenced to 15 months' imprisonment, one year of probation, and a $4,100 restitution order.

On appeal, he argued the trial judge erred by not crediting his strict bail conditions and in considering parity with a co-accused.

The Court of Appeal upheld the custodial sentence given the appellant's extensive criminal record, but varied the restitution order to $2,100 as the evidence of loss was unclear and the appellant had volunteered to pay that amount.

The appellant appealed his conviction for the first-degree murder of a 17-month-old child.

He argued that the trial judge failed to adequately explain the difference between intent and motive regarding the sexual component of the assault, and failed to properly instruct the jury on a possible break between the sexual assault and the fatal assaults.

The Court of Appeal dismissed the appeal, finding the jury charge was impeccable and the assaults formed an uninterrupted continuum.

The appellants challenged a trial costs order requiring them to pay the respondent more than $509,000 in fees, much of it on an elevated indemnity basis after a without-costs offer to settle.

The Court of Appeal held that elevated costs are warranted only through the operation of rule 49.10 or where the losing party engaged in reprehensible or egregious conduct deserving of sanction.

Because the offer did not engage rule 49.10 and there was no sanction-worthy conduct, the elevated award was an error in principle.

The court further held the amount awarded was not fair and reasonable under the governing costs principles and reduced the fees award to $300,000.

The appellant appealed his convictions for dangerous driving and drug offences.

On the dangerous driving conviction, the Court of Appeal admitted fresh evidence regarding a police officer's misconduct record but found it would not have affected the trial judge's credibility assessment.

On the drug convictions, the court declined to enter acquittals, finding there was some evidence of continuity, and upheld the summary conviction appeal court's order for a new trial.

The moving party, 2205305 Ontario Inc., was unsuccessful on an urgent motion to stay an order approving a receiver's sale of properties.

The respondents sought costs against the moving party's parent corporation, Romspen Investment Corporation, arguing it was the real moving party and the moving party was a shell corporation.

The Court of Appeal dismissed the request for costs against the non-party, finding no fraud or abuse of process to justify lifting the corporate veil, and fixed costs against the moving party on a partial indemnity scale.

The appellant was convicted by a jury of multiple offences arising from a home invasion, including robbery with a firearm and aggravated assault.

The primary evidence linking the appellant to the crime was a fingerprint found on a car near the scene, along with circumstantial evidence of the perpetrator's flight path.

On appeal, the appellant argued the verdict was unreasonable and the jury was improperly instructed on eyewitness identification.

The Court of Appeal dismissed the appeal, finding the fingerprint and circumstantial evidence were capable of supporting a reasonable inference of guilt, and the jury instructions on identification were adequate.

The parties reached a settlement prior to the hearing of the appeal.

The appellant's counsel advised the court of the settlement, and the appeal was dismissed as abandoned with each party bearing their own costs.

The appellant appealed the global sentence of one year in custody imposed for extortion and multiple acts of voyeurism.

The Court of Appeal found no error in principle by the sentencing judge and held that the sentence was fit.

The sentence appeal was dismissed.

The appellant was convicted of aggravated assault in relation to severe injuries suffered by his one-month-old baby.

At trial, the identity of the assailant was the central issue, with the appellant denying responsibility and pointing to the child's mother.

The trial judge convicted the appellant based on circumstantial evidence and alleged admissions.

On appeal, the Court of Appeal found that the trial judge failed to properly apply the W. (D.) framework regarding reasonable doubt and credibility, and failed to provide adequate reasons for rejecting the appellant's evidence.

The conviction was quashed and a new trial ordered.

The Minister of Finance appealed a Superior Court decision regarding a tax assessment.

The Court of Appeal dismissed the appeal, finding no error in the appeal judge's conclusion that the taxpayer was wholly-owned at the time of the transfer of tangible property within the meaning of Regulation 1013.

Costs of $10,000 were awarded to the respondent.

The appellant appealed his convictions for sexual interference involving a 13-year-old complainant.

He argued the trial judge erred in assessing the complainant's credibility, misapplied the law regarding inconsistencies in a child witness's testimony, and engaged in conduct that rendered the trial unfair.

The Court of Appeal dismissed the appeal, finding the trial judge properly applied the burden of proof, gave cogent reasons for rejecting defence evidence, and, despite some ill-chosen comments, did not deprive the appellant of a fair trial.

The appellant tenant appealed a decision regarding its obligation to pay rent under a commercial lease.

The lease contained a latent ambiguity regarding the Completion Date and Rental Commencement Date.

The tenant argued it was not required to pay rent because the landlord had not completed all buildings in the shopping centre as stipulated in the lease.

The Court of Appeal dismissed the appeal, finding that it was not commercially reasonable for the tenant to take possession, operate its business, and use the landlord's services without paying rent.

By taking possession and opening for business, the tenant effectively waived strict compliance with the landlord's obligation to complete all buildings as a condition precedent to paying rent.

The appellants appealed a trial judge's decision to accept expert opinion evidence on Manitoba law, which concluded their claim was barred by a Manitoba Act.

The Court of Appeal dismissed the appeal, finding it was open to the trial judge to accept the unqualified and unopposed expert opinion.

The Registrar of the Alcohol and Gaming Commission appealed a Divisional Court decision that overturned five findings of liquor licence infractions by the respondent restaurant and reduced its licence suspension.

The Court of Appeal allowed the appeal in part, finding that the Divisional Court erred by reassessing findings of mixed fact and law regarding three infractions, including encouraging immoderate consumption and serving an intoxicated patron.

The Court of Appeal also held that the Divisional Court breached natural justice by imposing a new penalty without hearing submissions.

A 14-day licence suspension was substituted.