OCA 2009

The appellant appealed from a conviction and a 12-month custodial sentence.

The appellant argued that the trial judge erred by failing to give a Vetrovec warning regarding a witness's evidence.

The Court of Appeal dismissed the conviction appeal, finding no need for the warning as the trial judge was aware of the witness's problems.

Leave to appeal the sentence was granted, but the appeal was dismissed as the sentence was entirely fit.

The appellant appealed his sentence, arguing the trial judge misapprehended the nature of a prior conviction and gave inadequate weight to rehabilitation.

The Court of Appeal dismissed the appeal, finding the sentence fit given the serious nature of the offences, the fact that the appellant was on probation and subject to a firearm prohibition at the time, and the paramount objectives of deterrence and denunciation.

The appellant appealed his conviction for simple assault, arguing that the trial judge misapprehended the evidence and that the verdict was unreasonable because medical evidence was inconsistent with the violent assault described by the principal Crown witness.

The Court of Appeal dismissed the appeal, finding that the trial judge was entitled to rely on substantial circumstantial evidence, including blood spatters and injuries, to find the appellant committed a simple assault.

The appellant appealed his conviction, arguing that the trial judge erred in finding the police officer's evidence reliable.

The Court of Appeal dismissed the appeal, agreeing with the trial judge that there was no basis to find the officer's evidence unreliable.

The appellant appealed his one-year custodial sentence for fraud.

The Court of Appeal found that the trial judge erred by considering the appellant's lack of remorse as an aggravating factor.

However, the court upheld the sentence as fit, noting that the appellant abused the trust of vulnerable fellow church members, causing an elderly couple to lose their home and life savings.

Despite the appellant being a first offender and initially a victim of a fraudulent scheme himself, the principles of denunciation and deterrence warranted the custodial sentence.

The appeal was dismissed.

The appellant appealed his conviction and sentence for a driving offence involving excessive speed and racing.

He argued the trial judge erred in assessing the evidence and failing to strictly follow the W.(D.) framework.

The Court of Appeal dismissed the appeal, finding the trial judge fairly considered all evidence and that the sentence was entirely fit given the finding that the appellant was racing.

The respondents sought to be registered as Indians under s. 6(1)(a) of the Indian Act, arguing that the 1952 Order-in-Council enfranchising their ancestor was obtained by fraud.

The Registrar refused the application, registering the ancestor under s. 6(1)(d) instead, which precluded the descendants from registration.

The Superior Court allowed the respondents' appeal, finding the Registrar could look behind the Order-in-Council.

The Court of Appeal allowed the Crown's appeal, holding that the Registrar and the Superior Court lack jurisdiction to invalidate or look behind a subsisting Order-in-Council, as exclusive jurisdiction to review such federal orders rests with the Federal Court.

The appellant landlord appealed a trial judgment awarding damages to the respondent tenant for breach of a demolition clause in a commercial lease.

The appellant argued the trial judge erred in finding the breach caused the respondent to close its business, and that the respondent failed to properly renew the lease.

The Court of Appeal dismissed the appeal, finding no overriding error in the trial judge's factual conclusions on causation.

The Court also held the appellant was estopped from insisting on formal compliance with the lease renewal clause due to its past conduct of accepting oral renewals.

The appellant was convicted of multiple counts of sexual assault and sexual exploitation.

He appealed on the grounds that the trial judge's jury instructions failed to review the evidence, relate it to the positions of the parties, and adequately outline factors relevant to the complainant's credibility.

The Court of Appeal allowed the appeal, finding that the trial judge erred by not reviewing the evidence for each discrete count and failing to instruct the jury to treat each count separately.

The convictions were set aside and a new trial was ordered.

The Crown appealed a 12-month conditional sentence imposed on a young first offender who suffered from a mental illness.

Although the law now requires a custodial sentence for the offence in question, the Court of Appeal declined to interfere because the respondent had successfully served the conditional sentence and addressed his mental health issues through prescribed medication.

The appeal was dismissed.

The appellant appealed his convictions for arson and arson with intent to defraud insurers.

He argued the trial judge erred in failing to make a threshold ruling on the admissibility of a witness's evidence regarding a conversation between the appellant and an accomplice, and in his jury instructions regarding the accomplices' prior convictions, guilty pleas, and the Vetrovec warning.

The Court of Appeal dismissed the appeal, finding no reversible errors in the trial judge's evidentiary rulings or jury instructions.

The Crown appealed acquittals on multiple sexual offence counts involving two young complainants in a judge-alone trial.

The Court of Appeal held that the trial judge misapprehended the Crown's purpose in seeking to rely on the evidence on each count as similar fact evidence across the indictment, wrongly characterizing the purpose as an attack on credibility rather than proof of a pattern refuting coincidence and confirming the complainants' accounts.

The court further held that, in a non-jury multi-count trial where the evidence was already before the court, reasoning prejudice and moral prejudice carried little weight.

The proposed similar fact evidence was highly probative and should have been admitted.

The appeal was allowed and a new trial ordered.

The appellant was convicted of two counts of welfare fraud for collecting social assistance while in an undisclosed common law relationship and failing to disclose support payments.

She appealed the convictions and the $90,127.15 restitution order.

The Court of Appeal upheld the first conviction, finding the trial judge did not err in determining she was a common law spouse based on family court affidavits.

However, the Court set aside the second conviction because the trial judge misapprehended evidence regarding her disclosure of support payments, which the Crown had conceded she reported.

The restitution order was correspondingly reduced to $51,263.85.

The appellant pled guilty to assault causing bodily harm following a racially motivated group attack on a disabled victim.

He appealed his five-year sentence, arguing he received insufficient credit for pre-trial custody and that his sentence offended the parity principle compared to his co-accused.

The Court of Appeal dismissed the appeal, finding the appellant's role as the instigator, his use of racial slurs, and his extensive criminal record distinguished him from his co-accused.

The court also upheld the trial judge's decision to limit pre-trial custody credit, concluding the overall sentence was fit given the brutal and senseless nature of the attack.

The appellant appealed an order finding that its solicitor, retained to discharge a mortgage, fraudulently diverted the respondent's repayment funds to himself.

The Court of Appeal dismissed the appeal, holding that the application judge's findings were well supported by the record.

The appellant appealed a judgment enforcing his personal guarantee of loans, arguing the loans had already been paid.

The Court of Appeal dismissed the appeal, finding no palpable and overriding error in the motion judge's conclusion that the record did not support the appellant's claim of payment.

The appellant appealed his conviction for first degree murder.

He raised several grounds of appeal, including the trial judge's instructions on unlawful confinement, attempted sexual assault, drunkenness, the adequacy of a Vetrovec warning, the use of prior consistent statements, and post-offence conduct.

The Court of Appeal dismissed all grounds, finding the evidence of identity overwhelming and the trial judge's instructions sufficient.

The appeal was dismissed.

The appellant financed the purchase of two trucks and perfected its purchase money security interests under the PPSA.

The trucks were leased to third parties, insured by the respondent, and subsequently stolen.

The respondent paid the actual cash value of the trucks to the insureds and claimed salvage rights under statutory condition 6(7) of the Insurance Act.

The Court of Appeal held that the appellant's perfected security interests had priority over the respondent's salvage rights.

Section 4(1)(c) of the PPSA and statutory condition 6(7) do not operate to extinguish a prior perfected security interest, and the transfer of title to the insurer was not a sale in the ordinary course of business.

The appellant fired a sawed-off shotgun at an intended victim following an altercation, missing the target but seriously injuring three innocent bystanders.

He was convicted of attempted murder for both the intended target and the bystanders, with the bystander convictions based on the trial judge's instruction regarding the common-law doctrine of transferred intent.

On appeal, the Court of Appeal held that the doctrine of transferred intent does not apply to the inchoate crime of attempted murder.

The convictions for the attempted murder of the bystanders were quashed and substituted with convictions for aggravated assault.

The conviction and sentence for the attempted murder of the intended target were upheld.

The appellant appealed a motion judge's discretionary order granting the respondent leave to amend her statement of claim.

The Court of Appeal found no reason to interfere with the order and noted that the entirety of the respondent's claim was not governed by the Provincial Offences Act, as damages could not be recovered under that Act.

The appeal was dismissed with costs.