OCA 2012

The Crown appealed the accused's acquittal on a charge of second degree murder.

At trial, the accused advanced an alternate suspect defence and claimed the police investigation was inadequate.

The trial judge excluded the Crown's proposed rebuttal evidence from the alternate suspect, instructed the jury that they must acquit if they could not decide which of the two men committed the murder, and repeatedly warned the jury about wrongful convictions.

The Court of Appeal found that the trial judge erred in excluding the rebuttal evidence, in giving the co-principal instruction where there was evidence of joint participation, and in repeatedly referencing miscarriages of justice in the jury charge.

The cumulative effect of these errors warranted a new trial.

The appellant appealed his convictions, arguing his actions did not constitute a criminal attempt.

The Court of Appeal agreed, finding the trial judge failed to distinguish between the actus reus and mens rea of an attempt.

The Court held that the appellant's inquiries, lacking any follow-up conduct, did not go beyond mere preparation and therefore the actus reus for an attempt was not established.

The appeal was allowed, convictions quashed, and acquittals entered.

In a criminal appeal involving cross-appeals by the Crown and the accused, the court held that the trial judge had no jurisdiction to quash a sexual assault count after the jury returned its verdict.

The court further held that the count, although spanning periods before and after the complainant reached the age of consent, did not undermine jury unanimity because the jury was instructed that non-consent had to be proved beyond a reasonable doubt.

However, the court found reversible error in the failure to give a proper limiting instruction on the use of extensive bad character evidence arising from allegations of long-term physical and sexual abuse within a household.

The Crown appeal was allowed, the accused’s appeal was allowed, the order quashing count 3 was set aside, and a new trial was ordered on all counts that had resulted in convictions.

The appellant bank sought to appeal an order dismissing its motion to compel a third-party mortgagee to provide a mortgage discharge statement for property owned by judgment debtors.

The appellant argued that a previous binding decision was decided per incuriam.

The Court of Appeal quashed the appeal, finding it lacked jurisdiction because the motion judge's order was interlocutory, as the appellant could still seek to examine a representative of the third party under the Rules of Civil Procedure.

The plaintiff in a class proceeding moved to quash the appeals of the defendant and non-party franchisees, arguing the order appealed from was interlocutory.

The order in question invalidated certain opt-out coupons but granted those class members a further opportunity to opt out after a final disposition on the merits.

The Court of Appeal held the order was final because it deprived the defendant of a binding judgment against all putative class members and of a limitations defence.

The motions to quash were dismissed.

The appellant appealed a trial judgment that largely denied his motion to change child and spousal support and ordered him to pay significant arrears.

He argued the trial judge erred by denying an adjournment to retain counsel, imputing income without sufficient evidence, and ordering him to pay 100 percent of horse-related section 7 expenses.

The Court of Appeal dismissed the appeal, finding the trial judge properly exercised his discretion in refusing the adjournment, had a sufficient basis to impute income due to the appellant's failure to provide financial information, and correctly treated the horse-related expenses as section 7 expenses.

The appellant appealed a spousal support order, arguing the trial judge erred in imputing income to him.

The Court of Appeal upheld the trial judge's findings that the appellant misrepresented his income, engaged in parental alienation, and was intentionally underemployed.

The court also upheld the income imputed to the respondent and the lack of a sunset date for access monitoring procedures.

The appeal was dismissed with costs.

The appellant appealed an order striking her claim against a mortgagee for improvident sale and damage to personal property.

The Court of Appeal dismissed the appeal, finding that the appellant, as a beneficial owner, lacked standing to sue for improvident sale, as standing lies with the trustee who holds legal title.

The court also upheld the motion judge's finding that the claim for damage to personal property was statute-barred.

The appellant appealed his conviction and sentence for wounding following a jury trial.

He argued the trial judge erred in the jury charge regarding consent, party liability under sections 21(1) and 21(2) of the Criminal Code, and the offence of assault.

The Court of Appeal dismissed the conviction appeal, finding any error regarding consent was harmless as it was unavailable on the facts, and the party liability instructions were unobjectionable.

The sentence appeal was also dismissed, as the sentence properly reflected the appellant's significant record for violence.

The plaintiffs, twin brothers born prematurely who developed cerebral palsy, sued their mother's obstetrician for negligence.

The trial judge found the obstetrician breached the standard of care by failing to assess the mother when she reported leaking fluid, resulting in a failure to administer a full course of antenatal corticosteroids (ACS).

The trial judge concluded this failure caused the twins' cerebral palsy and awarded damages.

The obstetrician appealed the causation finding.

The Court of Appeal dismissed the appeal, with the majority holding that the trial judge made no palpable and overriding error in applying a robust and pragmatic approach to the expert evidence and concluding that the failure to administer ACS caused the injuries.

The appellant was convicted by a jury of two counts relating to assaults committed on her child.

On appeal, the appellant argued that the trial judge made fatal errors during the jury selection process.

The Crown conceded that the trial judge erred by deciding to select alternate jurors after a jury of 12 had already been selected, and by erroneously concluding the appellant had exhausted her peremptory challenges, thereby denying her a challenge to which she was entitled.

The Court of Appeal agreed that the second error was fatal and could not be saved by the curative provisions of the Criminal Code.

The appeal was allowed, convictions set aside, and a new trial ordered.

The appellant appealed convictions for multiple sexual offences against a child family member and also appealed sentence.

The court rejected the argument that the appellant's statement to police was involuntary, applying the common law confessions rule and holding that he understood the consequences of speaking to police; in any event, any error was harmless given other admissible admissions.

The court also rejected attacks on the complainant's credibility, finding no failure to consider motive, contradictions, or the absence of more serious allegations.

However, the court held that a five-year penitentiary sentence exceeded the appropriate appellate range on the facts and reduced the sentence to four years.

The appellant appealed his global sentence of 9 years (8 years for aggravated assault) less 3 years credit for pre-trial custody.

He argued the sentencing judge erred by inappropriately balancing his mistreatment in pre-trial custody against the severe injuries inflicted on the victim.

The Court of Appeal found that while the sentencing judge's comments were unfortunate, he did not err in principle in exercising his discretion to assess the appropriate credit for pre-trial custody.

The sentence was fit and within the range for the offences committed.

The appellant was convicted of making, possessing, and distributing obscene material through his websites, which featured simulated explicit sex with violence.

He appealed his convictions and sentence, arguing errors in the admission of meta-tags, hyperlinks, written stories, and expert testimony, as well as deficiencies in the jury charge and a failure to grant a stay for delay under s. 11(b) of the Charter.

The Court of Appeal dismissed the appeal, finding no errors in the trial judge's evidentiary rulings or jury instructions, and upholding the $28,000 fine as a fit sentence.

The court was asked for assistance in settling the terms of an order granting intervener status, specifically regarding costs.

The respondents submitted a draft order, agreed to by most parties, stating that interveners would not be entitled to seek costs or be liable for costs of the appeals.

As no other parties proposed different terms, the court approved the draft order in accordance with its usual practice.

The appellants appealed a Superior Court decision upholding a trial judge's order making their child a Crown ward, without access, for the purpose of adoption.

The child had been apprehended after being found with rickets and testing positive for cannabinoids due to a marijuana grow-op in the home.

The parents subsequently abducted the child and were on the run for five months before being arrested.

The Court of Appeal dismissed the appeal, finding no error in the lower courts' application of the best interests test, no reasonable apprehension of bias, and no error in the admission of fresh evidence.

The appellant appealed a disposition of the Ontario Review Board, arguing he should have been granted an absolute discharge.

Amicus curiae raised additional issues regarding the fairness of the hearing, the Board's failure to resolve a treatment impasse with the Waypoint Centre, and the adequacy of the Board's reasons for dismissing the appellant's Charter arguments.

The Court of Appeal dismissed the appeal, finding ample evidence that the appellant remained a significant threat to public safety.

The Court also held that the hearing was fair, the Board reasonably declined to order further treatment options given the appellant's refusal to participate, and the Board lacked jurisdiction to grant the requested Charter remedies or order a transfer to a lesser security hospital.

The appellant appealed from convictions, arguing that the trial judge erred in his approach to collusion between complainants, failed to address a specific defence submission, and unreasonably admitted a videotaped statement after a two-year delay.

The Court of Appeal dismissed the appeal, finding that the trial judge adequately addressed the potential tainting of evidence, that the omitted defence submission would not have affected the outcome, and that the trial judge reasonably exercised his discretion to admit the videotaped statement given the reasons for the delayed disclosure.

Following the release of the court's reasons for judgment on an appeal, the respondent Aviva Canada Inc. requested that the court reopen its decision based on a recently released Supreme Court of Canada decision regarding the standard of review.

Aviva argued that the new decision altered the applicable standard of review from reasonableness to correctness due to concurrent jurisdiction provisions in the Insurance Act.

The court denied the request, noting that the parties did not agree an error had been made and finding that it was not in the interests of justice to withdraw the reasons and rehear the case on the merits.

The appellant appealed a spousal support order, arguing the trial judge failed to account for his significant family-related debt load in the 2009 calculation and that the retroactive award imposed an unreasonable hardship.

The Court of Appeal dismissed the appeal, finding the trial judge explicitly considered the debt load and that the retroactive amount resulted from the appellant's failure to make adequate payments.

No error in principle was found.