Court of Appeal

The appellant appealed his convictions for sexual interference and invitation to sexual touching against a 14-year-old complainant.

The appellant argued the trial judge erred by failing to disclose the second part of a jury note asking for a rest day, failing to give a cross-count reasoning instruction, and failing to give a prior consistent statement instruction.

The Court of Appeal dismissed the appeal, finding no error in the trial judge's handling of the jury note, which did not indicate rushed deliberations or prejudice.

The court also found that the additional jury instructions were not necessary, as there was no risk of cross-count reasoning and the Crown did not rely on prior consistent statements to bolster credibility.

La Cour d'appel de l'Ontario accueille l'appel de Y.S. contre sa déclaration de culpabilité pour inceste et agression sexuelle, et ordonne un nouveau procès.

L'arrêt porte sur l'insuffisance des motifs du juge du procès, qui n'a pas reconnu l'incidence des incohérences dans le témoignage de la plaignante, ni expliqué comment il a résolu ces contradictions.

La Cour conclut que ces erreurs constituent une erreur judiciaire justifiant l'annulation de la décision.

The Court of Appeal for Ontario considered whether Seabrook Bros.

Mechanical Ltd., a subcontractor and lien claimant, was entitled to a revised assessed value for its security in the insolvency proposal of North House Foods Ltd. The court held that there was no appeal as of right under s. 193(a)-(c) of the Bankruptcy and Insolvency Act, but granted leave to appeal under s. 193(e) due to the importance of the issue.

The appeal was dismissed, as the motion judge had not erred in finding that the appellant's security (a lien on a leasehold interest) had no realizable value in the circumstances.

The court clarified the onus on dissatisfied creditors under s. 50.1(4) of the BIA and the limited recourse for lien claimants in insolvency.

The Court of Appeal for Ontario considered whether an injunction restraining secondary picketing by the Canadian Union of Postal Workers at a Purolator facility was governed by section 101 or section 102 of the Courts of Justice Act.

The majority held that the definition of "labour dispute" in section 102 encompasses secondary picketing, and therefore, the appeal route lies to the Court of Appeal without leave under section 102(10).

The dissenting judge would have quashed the appeal, holding that the order was made under section 101 and thus appealable only to the Divisional Court with leave.

The appellant, 1461043 Ontario Limited c.o.b. as Nuvo Iron, appealed the dismissal of its motion to vary a default judgment to add declarations of intentional breach of trust and that the judgment survived the respondents’ discharge from bankruptcy under s. 178(1)(d) of the Bankruptcy and Insolvency Act.

The Court of Appeal upheld the motion judge’s decision, finding no basis in the record for the declarations sought and confirming that a mere breach of trust, even if negligent or incompetent, is insufficient to support a such an order.

The appeal was dismissed with costs to the respondents.

The Court of Appeal for Ontario dismissed Baba Ouedraogo’s appeal from sentence, except to vacate the sentencing judge’s recommendation for phallometric testing.

The appellant challenged the imposition of a second Long Term Supervision Order (LTSO), the finding of substantial risk of reoffence, the imposition of lifetime prohibition orders, and the recommendation for phallometric testing.

The court found no error in the sentencing judge’s approach to issue estoppel, risk assessment, or the imposition of prohibition orders, but held that a recommendation for phallometric testing was not legally available without the offender’s consent.

The Court of Appeal for Ontario dismissed the appellants’ appeal from a judgment granting partial summary judgment and continuing a Mareva injunction in favour of the respondents.

The appellants, led by Navdeep Singh Boparai, had persuaded the respondents to invest over $1 million in various schemes, which the motion judge found to be fraudulent.

The Court of Appeal found no reversible error in the motion judge’s analysis, including her findings of fraudulent misrepresentation, her application of the Rules of Civil Procedure, and her decision to continue the Mareva injunction.

The appeal was dismissed with substantial indemnity costs awarded to the respondents.

The moving party, Hermina Developments Inc., sought a stay of an order permitting the respondents to sell a 26.7-acre parcel of land in Woodstock, Ontario, pending appeal.

The Court of Appeal for Ontario dismissed the motion, finding that while there was a serious issue to be tried, Hermina failed to establish irreparable harm or that the balance of convenience favoured a stay.

The court held that any losses could be compensated by damages and that the property was not unique.

The respondents were awarded costs.

The Centre for Free Expression (CFE) sought leave to intervene as a friend of the court in a civil appeal arising from the dismissal of a motion under s. 137.1 of the Courts of Justice Act (Ontario) in a defamation action.

The Court of Appeal for Ontario, per Roberts J.A., dismissed the motion for intervention, finding that while CFE had a clear mandate and interest in freedom of expression issues, its proposed submissions would not provide a distinct or useful contribution beyond those of the parties.

The court emphasized that intervention is to be granted sparingly, particularly in private disputes, and that the issues raised by CFE were already adequately addressed by the parties.

The Court of Appeal for Ontario considered the Crown's appeal from a conditional sentence imposed for sexual assault involving non-consensual condom removal.

The majority allowed the appeal, finding the sentence manifestly unfit and inconsistent with established sentencing ranges for penetrative sexual assault.

The majority substituted a three-year penitentiary sentence, emphasizing the gravity of the offence, the respondent’s moral culpability, and the severe harm to the victim.

The dissent would have deferred to the sentencing judge and corrected only the technical error in the conditional sentence’s length.

The Court of Appeal for Ontario dismissed Behrouz Salehi’s motion for directions regarding his long-running dispute with the Association of Professional Engineers of Ontario (APEO).

The court found it had no jurisdiction to grant the relief sought, as there was no proceeding pending before it.

The endorsement reviews the procedural history of Mr. Salehi’s litigation, including previous unsuccessful attempts to challenge the dismissal of his action and to set aside prior orders.

The court concluded that there are no further legal avenues available to Mr. Salehi and prohibited him from filing further documents regarding this dispute without leave.

The Court of Appeal for Ontario denied leave to appeal from an order appointing a receiver over the property of 11977636 Canada Inc. at the request of the Bank of Montreal.

The debtor argued that the application judge made a factual error regarding the closing date of a property sale, which allegedly affected the decision to refuse an adjournment and appoint a receiver.

The Court found that the error was not determinative, as the appointment was justified by the debtor’s lack of accountability and transparency.

None of the three "Pine Tree" considerations for granting leave to appeal under s. 193(e) of the Bankruptcy and Insolvency Act were met.

The appellant, Connor Davison Gibson, brought a motion under section 683(1)(a) of the Criminal Code and rule 12(8) of the Criminal Appeal Rules for an order directing that the wooden board used to cause the deceased’s death (Exhibit 26 at trial) and the audio of the appellant’s 911 call be sent to the Court of Appeal and produced at the hearing of the appeal.

The Crown opposed, arguing that photographs of the board and a transcript of the 911 call were already in the record.

The court dismissed the motion, finding that the actual board and audio would not add anything meaningful to the panel’s deliberations, but noted the panel retains authority to require production of these exhibits if needed.

The moving parties, Paige Power and Darcy Dixon, sought an extension of time to file their notice of appeal after missing the deadline by about an hour due to being unaware of the 4:00 p.m. court day cutoff.

The Court of Appeal considered the relevant factors for an extension, found no prejudice to the respondent, and noted confusion in the underlying proceedings involving multiple actions and applications.

The court required the respondent to provide an explanatory statement of all pending matters and granted the extension, allowing the notice of appeal to be filed within 30 days of receiving the statement.

The Court of Appeal for Ontario dismissed Denim Henderson’s conviction and sentence appeals arising from the death of nine-month-old Kaleb McKay.

The appeal addressed whether charges for aggravated assault and failing to provide necessaries of life were properly joined with a second degree murder charge, and whether a discreditable conduct instruction was required.

The court held that the indictment was valid under s. 589 of the Criminal Code, as the charges arose from the same transaction.

The court also found no error in the trial judge’s instructions and concluded that the jury’s verdict was not tainted by improper propensity reasoning.

The Court of Appeal for Ontario dismissed J.L.'s application for bail pending appeal from convictions for multiple offences, including sexual assault and intimate partner violence.

The court reviewed the three-part test under s. 679(3) of the Criminal Code, finding that the grounds of appeal did not clearly surpass the "not frivolous" standard and that public safety and enforceability concerns outweighed reviewability.

The court emphasized the applicant's persistent breaches of release conditions and the risk to the complainant, concluding that continued detention was necessary in the public interest.

The appeal was ordered expedited due to the time already served.

The Court of Appeal for Ontario dismissed the Crown’s appeal from a stay of proceedings entered after a trial judge found that correctional officers, including Officer Warburton, used excessive force and then colluded to cover up the incident by filing false reports and giving misleading testimony.

The trial judge found a violation of the respondent’s Charter rights and determined that a stay was the only appropriate remedy to protect the integrity of the justice system.

The appellate court held that the trial judge’s findings were supported by the evidence, her legal analysis was correct, and her remedy was justified in the circumstances.

The appellant, Deepak Chhabra, was convicted of sexual assault and sentenced to 13 months' imprisonment.

He sought bail pending appeal, arguing that the trial judge erred in refusing to reopen the trial to admit new GPS evidence and in other respects.

The Crown opposed bail, citing flight risk, particularly because Chhabra attempted to leave Canada the day before sentencing.

The Court of Appeal found that the reviewability interest outweighed enforceability, given the short sentence and the safeguards in the proposed release plan, and granted bail with additional conditions.

The appellant, Richard Pereira, was convicted of second degree murder in the death of Kathryn Horne.

At trial, the defence conceded that Pereira killed Horne, but argued he was not criminally responsible (NCR) due to mental disorder.

The Court of Appeal reviewed whether the trial judge erred in applying the NCR test, in analyzing post-offence conduct, and in considering expert evidence.

The appeal was dismissed, with the court finding no error in the trial judge’s approach to the NCR defence, the use of post-offence conduct, or the treatment of expert evidence.