ONCA 2018

The appellant appealed her convictions for possession of morphine and possession of morphine for the purpose of trafficking, as well as an eight-month sentence imposed by the trial judge.

The appellant argued that the trial judge erred in assessing the credibility of a key defence witness and failed to properly apply Gladue principles in sentencing.

The Court of Appeal dismissed both the conviction and sentence appeals, finding that the trial judge properly rejected the defence evidence and adequately considered the appellant's Aboriginal background and personal circumstances in imposing a fit sentence.

The appellant was acquitted of first degree murder but convicted of contempt of court for refusing to disclose the identity of an alleged third party who he claimed was the actual murderer.

The trial judge sentenced him to three years imprisonment.

On appeal, the appellant argued the trial judge erred by sentencing him on the basis that he may have been the murderer and by failing to credit pre-trial custody.

The majority dismissed the appeal, finding the trial judge's language was contextual and did not impact the sentence.

A dissenting judge would have allowed the appeal and reduced the sentence to two years, finding the trial judge improperly considered the possibility of the appellant's guilt and failed to credit pre-trial incarceration as relevant information.

A lawyer convicted of possession of child pornography appealed his conviction and the terms of a section 161(1)(d) prohibition order limiting his Internet access.

The trial judge found multiple Charter breaches under section 8 relating to police handling of seized electronic devices but excluded only limited evidence under section 24(2).

The Court of Appeal upheld the conviction, finding the trial judge's Charter and exclusion analysis was reasonable and well-supported by evidence.

The court also upheld the Internet-limiting terms of the prohibition order, finding they were a reasonable response to the risk posed by the offender's possession of a significant volume of child pornography and carefully tailored to his specific circumstances.

The appellant challenged the validity of two wills executed by her deceased husband on the grounds that he lacked testamentary capacity due to chronic alcoholism.

The trial judge dismissed the claim, finding that the testator possessed testamentary capacity and knew and approved of the contents of his wills.

On appeal, the appellant argued that the trial judge erred in excluding expert evidence and in finding that the testator had capacity.

The Court of Appeal upheld the trial judge's decision, finding no palpable or overriding error.

The court held that the trial judge properly exercised her discretion as gatekeeper in excluding the expert evidence, which had become increasingly tentative and speculative.

The court also found that the trial judge properly applied the framework for assessing will validity, including the displaced presumption triggered by suspicious circumstances relating to the testator's mental capacity.

Appeal of a motion to change order concerning spousal support and a contempt motion.

The trial judge terminated spousal support for approximately two years and awarded support below the Spousal Support Advisory Guidelines (SSAGs) range, relying on an unimplemented settlement agreement reached during trial.

The trial judge also dismissed a contempt motion regarding the cancellation of a required life insurance policy.

The Court of Appeal allowed the appeal, finding the trial judge erred in principle by departing from the SSAGs without adequate justification and by using the negotiated settlement as a reference point.

The court also found the respondent in contempt for deliberately cancelling the life insurance policy without consent or court order.

The appellant appealed a trial judgment that declared the respondents had a right of way "in, over, and upon" a portion of the appellant's property, including the right to maintain drainage infrastructure (a catch basin and lateral pipe).

The appellant, who was self-represented at trial, argued the trial judge erred by failing to provide adequate assistance and by improperly interpreting the scope of the easement.

The Court of Appeal upheld the trial judgment, finding no procedural unfairness and that the drainage infrastructure constituted an ancillary right reasonably necessary to the use and enjoyment of the right of way.

The respondent was charged with abduction and violent sexual assault of two women in 1986.

He fled Canada in violation of bail conditions and assumed a false identity in the United States, where he was subsequently convicted and sentenced to 52 years imprisonment.

Following his deportation to Canada in 2015, he was charged and sought a stay of proceedings alleging violation of his right to trial within a reasonable time.

The trial judge granted the stay, characterizing the delay as Crown delay.

The Crown appealed, arguing that the delay caused by the respondent's flight should be treated as defence delay and deducted from the total delay calculation.

An appeal of an Ontario Review Board disposition maintaining a detention order for an individual found not criminally responsible on account of mental disorder.

The appellant sought an absolute discharge but the Board continued the detention order at the Southwest Centre for Forensic Mental Health Care, finding the appellant presented a significant threat to public safety due to lack of insight into his condition, poor medication compliance without supervision, and substance abuse issues.

The Court of Appeal dismissed the appeal, finding the Board's decision was supported by evidence and represented the least onerous and least restrictive disposition appropriate in the circumstances.

A homeowner appealed a lower court decision that upheld a greenhouse operator's use of storing and grinding wood on-site as an accessory use under the local zoning bylaw.

The homeowner sought a declaration that the wood storage and grinding operations violated the zoning bylaw.

The Court of Appeal upheld the lower court's decision, finding that storing and grinding wood for heating greenhouses constitutes a natural and normal incident of operating a greenhouse and therefore qualifies as an accessory use under the bylaw definition.

The court rejected the homeowner's argument that a restrictive interpretation of "naturally and normally incidental" was required.

The Crown appealed a sentence imposed on the respondent who had pled guilty to theft, possession of stolen property, flight from police, and two counts of failing to comply with the terms of a recognizance.

The sentencing judge imposed a 6-month sentence to be served consecutively to what the parties believed was a 12-month sentence then being served, for a global sentence of 18 months.

However, the respondent had completed his prior sentence approximately one month before sentencing.

The Crown and respondent agreed that the respondent should have received credit for 32 days of pre-disposition custody on the current charges, which would equate to 48 days with the applicable credit multiplier.

The Court of Appeal granted leave to appeal, allowed the appeal, and reduced the sentence accordingly.

The appellant was convicted of first degree murder under s. 231(5)(b) of the Criminal Code on the theory that he intentionally killed the victim while committing sexual assault.

The appellant argued that first degree murder under s. 231(5)(b) requires physical domination of the victim and that a sexual assault arising from fraudulently obtained consent does not satisfy this requirement.

The appellant also challenged the Crown's cross-examination as improper and prejudicial.

The Court of Appeal dismissed the appeal, holding that domination is not a distinct element of s. 231(5)(b), that sexual assault by its nature involves unlawful domination, and that any improprieties in cross-examination were adequately remedied by the trial judge's jury instructions.

Appeal from conviction for two counts of first degree murder.

The appellant killed two friends and attempted suicide, raising a not criminally responsible on account of mental disorder (NCR) defence.

The trial judge convicted after finding the appellant had the capacity to know that society would regard his actions as morally wrong, despite suffering from a mental disorder.

The appellant raised four grounds of appeal: (1) misinterpretation of "knowing that it was wrong" under s. 16(1) of the Criminal Code; (2) misapprehension of evidence regarding psychotic state; (3) request to recognize diminished responsibility as a partial defence; and (4) request to recognize suicide pact as a partial defence.

The Court of Appeal dismissed all grounds of appeal and upheld the conviction.

The appellant appealed his conviction for assault relating to events on December 25, 2014.

The appellant had been acquitted of a separate assault charge relating to events in summer 2013.

The appellant and complainant were co-parenting their child and maintained a non-intimate relationship at the time of the alleged assault.

The appellant raised two grounds of appeal: first, that the trial judge materially misapprehended evidence regarding who invited the complainant to stay overnight, and second, that the trial judge improperly relied on a police officer's opinion regarding the complainant's expectations about police involvement.

The Court of Appeal dismissed both grounds and upheld the conviction.

The appellant was convicted of first degree murder in the stabbing death of Kevin Pham.

On appeal, the court considered three grounds: (1) whether the trial judge erred in instructing the jury on the co-conspirators' exception to the hearsay rule for out-of-court statements; (2) whether the trial judge erred in admitting the victim's ante mortem statements; and (3) whether the trial judge erred by including multiple alternate routes to liability in the jury charge.

The Court of Appeal allowed the appeal, finding that the trial judge's instruction on the co-conspirators' exception was not supportable on the record and lacked adequate reasons.

The court ordered a new trial.

This is a costs endorsement on appeal from a Superior Court decision.

The Court of Appeal awarded costs to the respondents on a partial indemnity basis in the amount of $10,000, inclusive of disbursements and relevant taxes.

The appellant was convicted of first degree murder in the stabbing death of Nighisti Semret in downtown Toronto on October 23, 2012.

The appellant appealed on three grounds: (1) that the trial judge erred in failing to instruct the jury that after-the-fact conduct had no probative value in distinguishing between levels of culpability; (2) that the trial judge failed to provide an O'Connor instruction regarding the appellant's false statements to police and medical personnel; and (3) that evidence of the appellant's trip to Germany should not have been admitted.

The Court of Appeal dismissed all grounds of appeal and upheld the conviction.

The Crown appealed with leave from a Summary Conviction Appeal Judge's decision dismissing the Crown's appeal from an acquittal on a charge of driving with more than 80 mg of alcohol in 100 ml of blood.

The respondent was stopped by police who were investigating a report of an impaired driver in a pickup truck.

The respondent was driving a different colored pickup truck but was stopped under the Highway Traffic Act for sobriety purposes.

The trial judge found Charter breaches and excluded the breathalyzer evidence and statements.

The Court of Appeal found the trial judge erred in law by characterizing the stop as an investigative detention rather than a lawful traffic stop under the Highway Traffic Act.

The court allowed the appeal and entered a conviction.

An appeal from two dispositions of the Ontario Review Board concerning a person found not criminally responsible on account of mental disorder.

The appellant challenged the Board's May 23, 2017 conditional discharge order and its August 11, 2017 detention order, arguing both were unreasonable and that the August 11 order resulted from procedural unfairness and reasonable apprehension of bias.

The Court of Appeal dismissed the appeal from the May 23 order as moot and upheld the August 11 detention order, finding it was reasonable based on the appellant's relapse into drug use, violent behavior, and non-compliance with medication and reporting requirements.

The applicant sought leave to appeal a Provincial Offences Appeal Court decision dismissing his appeal from a conviction for speeding.

The applicant was charged with speeding on Highway 2 in the Region of Durham, clocked at 107 km/h in a 70 km/h zone.

He was convicted at trial and again at a retrial after his first conviction was overturned due to a misapplication of the rule in R. v. W.(D.).

The motion judge granted leave to appeal on three grounds: (1) misapplication of the W.(D.) rule by the Justice of the Peace; (2) improper restriction of cross-examination regarding prior inconsistent testimony; and (3) failure to provide adequate assistance to a self-represented accused.

A motion judge approved a receiver's sale of a partially constructed property (Birchmount Property) for $3.45 million, free and clear of all mortgages.

The third mortgagee, World Finance Corporation, sought to appeal, claiming an appeal as of right under section 193(b) of the Bankruptcy and Insolvency Act, or alternatively, leave to appeal under section 193(e).

The Court of Appeal held that section 193(b) did not apply because the order pertained only to one bankruptcy proceeding, not multiple similar cases within the same proceeding.

Leave to appeal was also denied because the proposed appeal lacked prima facie merit, did not raise an issue of general importance, and would unduly hinder the bankruptcy proceedings.

The sale was approved to proceed.