Court of Appeal

The appellant, Nicholas Jenkins, appealed his conviction for drug trafficking and possession for the purpose of trafficking.

The appeal centered on the trial judge's error in admitting lay opinion evidence from five police surveillance officers, who opined that the appellant's observed conduct was consistent with drug trafficking.

The Court of Appeal found this evidence inadmissible as neither expert nor proper lay opinion.

The court declined to apply the curative proviso, emphasizing the heightened risk of prejudice in a jury trial, the prominence of the inadmissible evidence, and the lack of an overwhelming case against the appellant.

A new trial was ordered.

The appellant, Terrance Nahmabin, appealed a finding of Not Criminally Responsible on account of Mental Disorder (NCRMD) for various offences.

The Court of Appeal for Ontario found procedural deficiencies in the original NCRMD proceedings, including an improper plea, lack of inquiry into the appellant's understanding of the NCRMD consequences despite his expressed distress, and insufficient reasons from the trial judge explaining the application of s. 16 of the Criminal Code.

The court emphasized the strict requirement for procedural fairness in NCRMD cases due to the serious liberty deprivations involved.

The appeal was allowed, the NCRMD finding was set aside, and a new trial was ordered.

The appellant appealed his conviction for robbery with a firearm and his 7-year mandatory minimum sentence.

The conviction appeal grounds included inadequate jury instructions on eyewitness identification (including recognition and in-dock ID), insufficient caution on after-the-fact conduct, and inflammatory Crown closing remarks.

The sentence appeal grounds challenged the finding that the unrecovered gun was a "firearm" and the imposition of a consecutive sentence.

The Court of Appeal dismissed both the conviction and sentence appeals, finding no reversible errors given the trial context and the evidence.

This appeal concerned the interpretation of an agreement of purchase and sale with an ambiguity regarding the calculation of the purchase price, which included Harmonized Sales Tax (HST).

The appellant vendor sought payment of remaining escrow funds.

The Court of Appeal found that the application judge erred by failing to properly interpret the agreement according to the principles of contractual interpretation and by relying on inadmissible expert appraisal evidence.

The appeal was allowed, the lower court's judgment and costs order were set aside, and the matter was remitted for a new hearing before a different judge.

The cross-appeal was not addressed.

The appellant appealed convictions for drug and proceeds of crime charges, alleging ineffective assistance of trial counsel regarding a s. 8 Charter application challenging the validity of a search warrant.

The appeal focused on counsel's failure to challenge the accuracy of GPS tracking data relied upon by police and counsel's agreement to allow the Crown to introduce amplification evidence from the affiant.

The Court of Appeal dismissed the appeal, finding no prejudice from counsel's tactical decisions and upholding the trial judge's conclusion that there were sufficient grounds for the search warrant.

The Court of Appeal for Ontario heard an appeal from a Divisional Court order that had allowed appeals from a Superior Court order.

The Court of Appeal agreed with the Divisional Court's reasoning and conclusions, dismissing the appeal.

The parties also agreed on an all-inclusive costs award of $35,000 payable by the appellant to the respondents, covering all levels of court proceedings, including the motion for leave to appeal.

The appellants appealed the sanction imposed by a motion judge for the respondents' civil contempt of a Mareva injunction.

The respondents had violated the injunction by encumbering a property and failing to place rental income in trust.

The motion judge imposed a fine and costs, with a conditional order to strike pleadings if not paid.

The appellants sought imprisonment and immediate striking of pleadings, arguing the sanction was inadequate and the costs award was too low.

The Court of Appeal dismissed the appeal, finding the motion judge's sanction proportionate and his discretion on costs appropriate, emphasizing that incarceration for civil contempt is rare and the contempt in this case was modest.

The Crown appealed the acquittal of the respondent on charges including sexual exploitation and sexual assault.

The appeal argued that the trial judge erred by relying on stereotypical reasoning in assessing the complainant's credibility and by overemphasizing peripheral inconsistencies in the context of childhood abuse.

The Court of Appeal found that the trial judge's repeated focus on why the complainant continued to engage with the respondent, despite knowing the risk of assault, constituted stereotypical reasoning, which is an error of law.

This error was deemed to have materially affected the verdict, as the trial judge's assessment of the respondent's credibility was inextricably linked to her flawed assessment of the complainant's credibility.

The appeal was allowed, and a new trial ordered.

Thomas Adderley appealed his conviction for sexual assault and sought leave to appeal his 18-month custodial sentence.

The appellant argued that the trial judge erred by applying uneven scrutiny to the evidence, failing to properly apply the law, and overlooking an absence of forensic evidence.

Regarding the sentence, the appellant contended that the trial judge erred in finding unprotected sexual intercourse as an aggravating factor.

The Court of Appeal dismissed the appeal from conviction and the appeal from sentence, finding no error in the trial judge's credibility findings or the treatment of the aggravating factor.

The appellants, a husband and his brother, appealed a trial judge's equalization payment order to the wife, arguing errors in weighing factors under s. 10.1(4) of the Family Law Act regarding an immediate lump sum transfer from the husband's pension, and incorrect prejudgment interest calculation.

The Court of Appeal found no reversible error, upholding the trial judge's findings that the wife's pension waiver was under duress, the husband and his brother acted in bad faith, and the husband fraudulently conveyed property.

The trial judge's holistic review of financial circumstances and the decision to order an immediate lump sum transfer for equalization were affirmed as fair.

The prejudgment interest calculation from the date of separation was also upheld.

The appeal was dismissed with costs to the respondent.

The appellants, convicted of murder, appealed on grounds of reasonable apprehension of bias by the trial judge and violation of their right to be present.

The trial judge repeatedly encouraged guilty pleas in chambers and directly to the accused, expressing strong opinions on the evidence and linking rulings to plea outcomes.

The Court of Appeal found that the judge's conduct created a reasonable apprehension of bias and infringed the accused's right to be present under s. 650(1) of the Criminal Code, compromising the fairness and integrity of the trial.

The appeals were allowed, and a new trial was ordered for both appellants.

Gurdev Singh Multani appealed a disposition of the Ontario Review Board (ORB) that continued his conditional discharge after he was found not criminally responsible due to a mental disorder (NCRMD) for uttering threats.

He sought an absolute discharge and also filed motions to dismiss the original offence and claim damages.

The Court of Appeal dismissed the appeal, finding that the argument regarding the justification of conditions was raised too late, as the appellant had previously agreed to the terms if a significant threat was found.

The court also dismissed the motions, stating it lacked jurisdiction to reverse the NCRMD finding on an appeal from an ORB disposition.

This appeal addresses whether limited partners can bring a common law derivative action on behalf of a limited partnership.

The Court of Appeal for Ontario held that while limited partners have direct causes of action against a general partner for breach of fiduciary duty or contract, negating the need for a derivative action in such cases, a common law derivative action may be available against third parties who have harmed the limited partnership, particularly when the general partner is in a conflict of interest and refuses to act.

The court dismissed the derivative action against the general partner and its director but granted leave for a derivative action against the three third parties, establishing a test for such leave.

The appellant was found guilty of possession of fentanyl for the purpose of trafficking and possession of proceeds of crime.

The appeal challenged the reasonableness of the verdict, specifically the finding of constructive possession of fentanyl located in a backpack in the trunk of a car the appellant was driving.

The Court of Appeal dismissed the appeal, affirming that the trial judge's inference of guilt was reasonable, given the circumstantial evidence, the high value of the fentanyl, and the absence of an exculpatory explanation from the appellant.

The appellant, Daniel Wright, appealed a three-and-a-half-year custodial sentence for sexual exploitation of his stepdaughter, committed between 1988 and 1990.

He argued the sentence was excessive, the judge erred in applying contemporary sentencing principles to a historical offence, and sought to introduce fresh evidence regarding a risk assessment and prior willingness to take responsibility.

The Court of Appeal dismissed the appeal, finding no error in principle or palpable and overriding error of fact, and that the sentence was fit.

The court also denied the fresh evidence application, concluding it would not have affected the outcome, and declined jurisdiction over the SOIRA order given the sentence was not reduced.

The appellant sought to strike his guilty plea for tax evasion, arguing the sentencing judge failed to adequately inform him he was waiving his right to a trial where the Crown bore the burden of proof.

The Court of Appeal found that a different judge had already provided this information four days prior to the plea, and the appellant was fully aware of the implications of his plea.

Consequently, the appeal was dismissed.

The court also noted that by pleading guilty, the appellant waived his right to challenge a prior Charter application decision.

The appellant, Narman Abri, appealed a motion judge's decision to grant a nunc pro tunc order, deeming a statement of defence and counterclaim issued on the date of filing, despite not being formally issued before the limitation period expired.

The Court of Appeal affirmed the motion judge's decision, distinguishing the case from precedents requiring leave to commence an action.

The court found the lack of issuance to be a procedural irregularity under Rule 2.01, not undermining the purposes of limitation periods, as the appellant had notice of the counterclaim.

The appellant, Jeffrey Reimer, appealed his convictions for sexual assault with a weapon, unlawful confinement, and extortion.

The core issue on appeal was the trial judge's exclusion of sexualized text messages exchanged between the appellant and the complainant under s. 276 of the Criminal Code.

The trial judge had ruled the messages irrelevant, offered for an illegal purpose (proving prior consent), and dependent on prohibited "twin-myth" inferences.

The Court of Appeal found that the trial judge erred in excluding this evidence.

The Court clarified that statements of present intention to engage in future sexual activity are logically relevant to the issue of consent and do not automatically trigger the "twin-myth" inference or violate the contemporaneity rule, as their relevance does not stem from the sexual nature of the activity itself but from the stated intentions.

Consequently, the appeal was allowed, the convictions were set aside, and a new trial was ordered.

This appeal addressed the autonomy of adults with disabilities under parental charge, specifically concerning parenting orders under the Divorce Act for adults presumed capable.

The Court of Appeal found that the motion judge erred by making a temporary parenting order for a 26-year-old son with Down Syndrome without a specific determination of his capacity to make decisions about his residence and without affording him the opportunity to participate in the proceedings.

The court emphasized the common law presumption of capacity and the audi alteram partem principle, holding that an adult presumed capable must be served and given the right to be heard on matters affecting their fundamental rights.

The appeal was allowed, and the parenting order was set aside.

The appellant appealed an order dismissing his action and striking his amended statement of claim.

The motion judge had concluded that the action was outside the Superior Court's jurisdiction and that the statement of claim disclosed no reasonable cause of action.

The Court of Appeal upheld the dismissal, agreeing that the Divisional Court had exclusive jurisdiction to hear the issues raised, as the action fundamentally concerned the enforcement of statutory powers subject to judicial review, not a matter for the Superior Court.