Paul Burstein

The accused was charged with sexual assault and sexual touching of his granddaughter between December 2013 and February 2014, when the complainant was twelve years old.

The Crown alleged that the accused licked the complainant's legs and stomach on separate occasions and placed his hand down her shirt.

The accused denied all allegations.

The court found that while the complainant had motive and animus to fabricate the allegations due to her unhappiness with living arrangements and disciplinary conflicts over internet use, the accused's testimony was straightforward, uncomplicated, and credible.

The court was not satisfied beyond a reasonable doubt that the allegations were proven and acquitted the accused on all counts.

The appellant, a police officer, was convicted of assault and assault with a weapon after using excessive force against an intoxicated complainant during an arrest.

His appeal to the summary conviction appeal court was dismissed.

He sought leave to appeal to the Court of Appeal, arguing that the lower courts erred in their application of the justification defence under section 25(1) of the Criminal Code.

The Court of Appeal dismissed the application for leave, finding no error of law and concluding that the proposed appeal did not raise an unsettled question of law of public importance.

The appellant, a commercial truck driver, was convicted of importing cocaine after 53 kilograms of cocaine were found hidden in his trailer.

At trial, the Crown introduced an expert police report on the use of commercial vehicles for transporting contraband.

The report contained both general opinions and case-specific opinions regarding the appellant's credibility and knowledge of the drugs.

The Court of Appeal held that the case-specific opinions were inadmissible as they usurped the role of the trier of fact.

Finding that the trial judge improperly relied on this inadmissible evidence to conclude the appellant knew about the cocaine, the majority allowed the appeal and ordered a new trial.

The appellant appealed his conviction for sexual assault, arguing the trial judge erred in her treatment of bruising evidence and the mens rea of the offence.

The Crown appealed the 90-day intermittent sentence.

The Court of Appeal dismissed the conviction appeal, finding no error in the trial judge's reliance on the physical injuries as consistent with the complainant's testimony.

The Court allowed the Crown's sentence appeal, finding the original sentence manifestly unfit for a date-rape scenario involving contemptuous disregard for the complainant's personal integrity, and substituted an 18-month term of imprisonment.

The Crown appealed an acquittal in an impaired driving prosecution where the trial judge found that police lacked reasonable and probable grounds to arrest and excluded breath samples under s. 24(2) of the Charter.

The trial judge had rejected several indicia of impairment due to inconsistencies in the officers’ testimony and concluded that odour of alcohol and poor driving provided only suspicion warranting a roadside screening demand.

The appeal court held that the trial judge erred by effectively conducting a full trial-level assessment of whether indicia actually existed rather than assessing whether the arresting officer reasonably believed an offence had been committed at the time of arrest.

Evidence of dangerous swerving combined with a strong odour of alcohol provided an objective basis for reasonable and probable grounds.

The arrest was lawful and the trial judge’s analysis improperly conflated the threshold for arrest with proof of impairment.

The appellant appealed her conviction and sentence for setting fire to her rented home.

She argued the trial judge erred in admitting her confession to police and misapprehended evidence regarding the fire.

The Court of Appeal dismissed the conviction appeal, finding the confession voluntary and no material misapprehension of evidence under the Morrissey standard.

The sentence appeal was allowed only to vary the $91,865 restitution order from a term of probation to a free-standing order under s. 738 of the Criminal Code.

A ruling on spousal privilege in a preliminary inquiry concerning charges of murder and assault with a weapon.

The court determined that the defendant's common-law spouse was a competent and compellable witness despite spousal privilege protections under s. 4 of the Canada Evidence Act.

The court applied the common-law exception to spousal incompetence where surrounding circumstances disclose a threat to the person, liberty, or health of the witness spouse.

The court also addressed jurisdictional issues regarding the joinder of murder and assault charges under s. 589 of the Criminal Code.

The appellant appealed his conviction for possession of cocaine for the purpose of trafficking, arguing that the trial judge erred in admitting three utterances he made to officers at the scene and in failing to properly instruct the jury on how his limited English proficiency might affect the interpretation of those utterances.

The Court of Appeal dismissed the appeal, finding that the utterances were voluntary and made before the appellant was detained, and that the trial judge's jury instructions adequately addressed the language barrier issue.

The appellant appealed his conviction and sentence for possession of a large amount of heroin.

The Court of Appeal dismissed the conviction appeal, finding no error in the trial judge's finding of wilful blindness based on admissible evidence of earlier shipments.

The sentence appeal was also dismissed, as the trial judge properly considered the parity principle and mitigating factors.

Applying the principle from R. v. Sidhu, the court held that the appellant's mistaken belief in the nature of the substance seized could not be treated as a mitigating factor.

The appellant, previously found not criminally responsible for robbery and mischief, appealed a disposition of the Ontario Review Board that reaffirmed a hybrid detention order.

He argued he should be granted an absolute discharge, claiming he had initially malingered his symptoms and did not suffer from a mental disorder.

The Court of Appeal dismissed the appeal, finding the Board's conclusion that the appellant suffered from a major mental illness and remained a significant threat to public safety was well-supported by the evidence.

During a first degree murder trial, the Crown sought a publication ban under s. 486.5 of the Criminal Code to prevent publication of information identifying the deceased victim, primarily to shield an elderly relative from learning distressing details of the death through media reporting.

The court held that the Dagenais/Mentuck framework governs discretionary publication bans even when sought under a statutory provision.

The Crown failed to establish that the order was necessary to prevent a serious risk to the proper administration of justice or that a significant public interest justified limiting openness.

The concern raised was characterized as a private interest unsupported by medical evidence demonstrating likely harm.

The interim publication ban was therefore set aside.

The accused pleaded guilty to dangerous driving and impaired operation of a motor vehicle after driving eastbound in the westbound lanes of Highway 407 while heavily impaired by alcohol, causing multiple drivers to take evasive action to avoid head-on collisions.

The accused, a Fire Chief with no criminal record, had blood alcohol readings of 225 and 209 milligrams per 100 millilitres of blood.

The Crown sought 14-30 days jail, a two-year driving prohibition, and 12 months probation.

The defence sought a non-custodial sentence with fines, community service, and an 18-month driving prohibition.

The court imposed fines totalling $4,025 (including victim surcharge), an 18-month driving prohibition, 18 months probation with alcohol counselling and abstinence conditions, and 100 hours community service.

The appellant appealed a disposition of the Ontario Review Board ordering his detention at a psychiatric hospital with conditions permitting him to live in the community.

The appellant argued the Board erred in finding he posed a significant threat to public safety and in failing to grant an absolute or conditional discharge.

The Court of Appeal dismissed the appeal, finding ample evidentiary support for the Board's conclusion that the appellant remained a significant threat due to his schizophrenia, lack of insight, and resistance to treatment.

The community-based detention order was upheld as reasonable and the least onerous disposition.

The appellant appealed a disposition of the Ontario Review Board, arguing that the majority of the Board misapprehended the expert evidence of a doctor.

The Court of Appeal found no misapprehension of the evidence and held that the Board's decision was reasonable.

Giving deference to the Board's analysis, the appeal was dismissed.

The appellant appealed convictions for assault, assault with a weapon, mischief, voyeurism, and breaches of probation arising from incidents involving his former partner.

He argued the trial judge committed a Morrissey error by misapprehending evidence related to alleged bias and motive of the complainant, and further erred by failing to analyze whether a video recording was made in circumstances giving rise to a reasonable expectation of privacy for purposes of the voyeurism offence under s. 162 of the Criminal Code.

The court held that the trial judge properly considered the discrepancies in the evidence and reasonably rejected the defence theory that the complainant fabricated allegations out of spite.

The court also held that although the trial judge did not explicitly analyze the privacy element of voyeurism, it was not a live issue at trial and the evidence clearly established a reasonable expectation of privacy.

The appeal was dismissed.

The appellant, an Aboriginal man, was convicted of manslaughter by a jury in the District of Kenora.

He appealed his conviction on the basis that the jury roll from which his petit jury was selected was unrepresentative, as it systematically under-represented Aboriginal on-reserve residents.

The Court of Appeal found that the state failed to make reasonable efforts to address known, long-standing problems with the delivery and return rates of jury questionnaires on reserves.

This failure violated the appellant's rights under sections 11(d) and 11(f) of the Charter.

The appeal was allowed and a new trial was ordered.

The appellant appealed his conviction for dangerous operation of a motor vehicle (a farm tractor).

He argued he was denied an adjournment at the Summary Conviction Appeal Court and that the trial judge erred by finding dangerous driving without expert evidence on tractor operation and by inferring danger from the accident itself.

The Court of Appeal granted leave to appeal due to a misunderstanding about procedure but dismissed the appeal.

The Court found ample evidence of dangerous driving, including ignoring police officers and driving erratically, and held that expert evidence was not required as the risks were plain and obvious.

The applicant sought certiorari to quash his committal for trial on a charge of first-degree murder, arguing there was insufficient evidence of planning and deliberation and that the preliminary inquiry judge failed to consider the whole of the evidence.

The Superior Court of Justice dismissed the application, finding that there was some circumstantial evidence capable of supporting an inference of planning and deliberation, such as the setting of multiple fires and the use of an accelerant.

The court also held that a failure to consider the whole of the evidence is not a jurisdictional error reviewable by certiorari when an accused is committed for trial under section 548(1)(a) of the Criminal Code.

The appellant, who was found not criminally responsible for failing to comply with a probation order and uttering threats, appealed the Ontario Review Board's disposition ordering his continued detention.

The appellant sought an absolute discharge and sought to introduce fresh evidence.

The Court of Appeal dismissed the appeal, finding the Board's decision was reasonable and supported by evidence of the appellant's delusional disorder, lack of insight, and continued threat to the community.

The fresh evidence would not have affected the outcome.

The appellant appealed a conviction for driving with excess blood alcohol after entering a guilty plea.

He argued the plea was not informed because he relied on incorrect immigration advice that a conviction would not affect his immigration status in Canada.

After the conviction he learned the offence rendered him inadmissible to Canada as a foreign national and subject to removal proceedings.

The court held that a guilty plea must be voluntary, unequivocal, and informed, and in the unusual circumstances the appellant’s reliance on erroneous legal advice regarding immigration consequences meant he did not fully understand the consequences of his plea.

The appeal was allowed, the conviction quashed, and a new trial ordered.