Paul Burstein

The appellant was found not criminally responsible for threatening his nephew.

At the Ontario Review Board hearing, both the hospital and the Crown supported an absolute discharge, but the Board imposed a conditional discharge.

The appellant appealed, arguing the Board applied the wrong legal test.

The Court of Appeal agreed, finding the Board erred in its interpretation of the 'significant threat to the safety of the public' threshold under s. 672.54(a) of the Criminal Code.

The Board improperly relied on 'psychological stress' rather than significant psychological harm resulting from criminal conduct, and applied a standard that was too low by finding a physical response 'could not be ruled out'.

The appeal was allowed and an absolute discharge was granted.

The Court considered whether 2008 Criminal Code amendments limiting evidence to challenge breath test reliability applied to a trial concerning earlier events.

A majority held the amendments affected substantive rights because they eliminated the Carter defence as an independent route to raise reasonable doubt and therefore should not apply retrospectively.

The Court restored the trial acquittal and allowed the appeal.

A dissent would have treated the provisions as procedural evidentiary rules with immediate effect.

The appellant appealed his conviction for dangerous driving, arguing the trial judge failed to apply the mens rea test later established in R. v. Roy.

The Court of Appeal dismissed the appeal, finding that driving at least 136 k.p.h. in a 60 k.p.h. zone constituted a marked departure from the standard of care expected of a reasonable person, satisfying the mens rea requirement.

The appellant, who suffered from a severe mental illness, was found marginally fit to stand trial and subsequently pleaded guilty to several offences, including common nuisance.

The trial judge entered findings of guilt and later found the appellant not criminally responsible on account of mental disorder (NCRMD) without conducting a plea inquiry.

On appeal, the Court of Appeal set aside the guilty pleas, findings of guilt, and NCRMD verdicts, holding that the trial judge's failure to conduct a plea inquiry vitiated the pleas given the appellant's mental state and lack of understanding of the consequences.

Several civil liberties and HIV/AIDS organizations brought motions to intervene in an appeal concerning the constitutionality of the Marihuana Medical Access Regulations.

The Crown opposed the interventions, arguing the appeal was fact-based and the interventions would be duplicative or prejudicial.

The court granted the motions to intervene, finding that the proposed interveners would provide unique viewpoints on the broader legal and constitutional issues without causing injustice to the parties or prejudicing the appeal process.

The appellant, who was previously found not criminally responsible on account of a mental disorder, appealed a disposition of the Ontario Review Board that imposed a detention order.

The appellant sought an absolute discharge to care for his parents, while amicus curiae argued for a conditional discharge.

The Court of Appeal dismissed the appeal, finding that the appellant remained a significant threat to public safety and had breached the terms of his previous conditional discharge.

The court upheld the Board's conclusion that a detention order was the least onerous and least restrictive disposition.

The appellant appealed a disposition of the Ontario Review Board dated September 15, 2010.

The Court of Appeal dismissed the appeal on the basis that it was moot.

The appellant appealed his convictions for three counts of driving 'over 80' causing bodily harm.

The central issue at trial was whether the appellant was the driver of the van at the time of the collision.

The appellant argued the trial judge shifted the onus of proof, misapprehended evidence, and failed to disclose a proper basis for finding he was the driver based on circumstantial evidence.

The Court of Appeal dismissed the appeal, finding the trial judge considered the evidence holistically and made no errors in concluding the appellant was the driver.

The appellant was found not criminally responsible (NCR) on charges of criminal harassment and failing to comply with a recognizance.

On appeal, amicus curiae argued that the trial judge erred by failing to hold a fitness hearing, asserting that the appellant's delusional disorder (erotomania) rendered him unfit to stand trial.

The Court of Appeal dismissed the appeal, finding that the trial judge had properly relied on psychiatric reports confirming the appellant's fitness and that the limited cognitive capacity test was met.

An application to admit fresh psychiatric evidence was also dismissed.

The appellant appealed his conviction for possession of marijuana for the purpose of trafficking, which occurred while he was an inmate at a jail.

The trial judge had convicted the appellant by rejecting his testimony and the exculpatory evidence of a correctional officer, while accepting the evidence of another officer.

The Court of Appeal found that the trial judge made several errors in assessing credibility, including misapprehending the record regarding the officer's use of notes, improperly using the appellant's failure to plead guilty to a separate charge, and misapplying expert testimony regarding the value of drugs in jail.

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

The appellant appealed his convictions, arguing that the trial judge's jury charge regarding wilful blindness was confusing in relation to the charges of possession for the purpose of trafficking and possession of a weapon for a dangerous purpose.

The Court of Appeal dismissed the appeal, finding that although the trial judge initially gave a confusing instruction, it was later clarified in the clearest terms, and the decision trees provided to the jury made the distinction clear.

The appellant pleaded guilty to possession of cocaine for the purpose of trafficking based on his trial counsel's advice that police surveillance recordings confirmed reasonable and probable grounds for his arrest.

Prior to sentencing, the appellant retained new counsel and moved to set aside the plea, arguing it was uninformed because trial counsel had misheard the recordings.

The trial judge dismissed the motion.

On appeal, the Court of Appeal listened to the recordings and found no evidence supporting the observations trial counsel claimed to have heard.

The Court held that the guilty plea was uninformed because it was grounded on a critical misapprehension of information regarding the viability of the appellant's only defence.

The appeal was allowed, the guilty plea set aside, and a new trial ordered.

The appellant, a store clerk, sold cigarettes to a 17-year-old test shopper without asking for identification and was convicted under the Smoke Free Ontario Act.

He appealed, arguing that the random compliance check constituted entrapment because the authorities lacked reasonable suspicion that he or the store were engaged in illegal activity.

The Court of Appeal dismissed the appeal, holding that the criminal law doctrine of entrapment, specifically the requirement for reasonable suspicion, does not apply to bona fide random test shopping used to monitor compliance with regulatory statutes.

The appellant appealed a finding of Not Criminally Responsible to the Court of Appeal.

The Court quashed the appeal, holding that because it was a summary conviction matter, the appeal must be directed to the Summary Conviction Appeal Court under section 813 of the Criminal Code.

The appellant declined an offer to have the appeal heard by a panel member sitting as a Superior Court justice.

The appellant appealed a decision of the Ontario Review Board granting him a conditional discharge rather than an absolute discharge.

The Court of Appeal dismissed the appeal, finding the Board's decision was not unreasonable given the evidence and the agreement of all parties that the appellant continued to pose a significant risk to the public.

The Court noted the appellant's progress on new medication but held that consideration of an absolute discharge or Community Treatment Order was premature on the current record.

The self-represented appellant appealed a disposition of the Ontario Review Board.

The Court of Appeal dismissed the appeal, finding no legal error, unreasonableness, or miscarriage of justice in the Board's conclusion that the appellant remained a significant threat.

The court noted that the appellant's request for an outpatient assessment could be raised at her next annual review.

The respondent was charged with stunt driving by speeding 50 kph or more over the limit under s. 172 of the Highway Traffic Act.

At trial, she was convicted, but on appeal, the judge found the offence to be one of absolute liability and unconstitutional under s. 7 of the Charter due to the potential for imprisonment.

The Crown appealed.

The Court of Appeal allowed the appeal, holding that the offence is one of strict liability, not absolute liability, and therefore does not violate s. 7 of the Charter.

A new trial was ordered to allow the respondent to raise a due diligence defence.

The appellant appealed a disposition of the Ontario Review Board detaining him in a medium security facility, seeking a conditional discharge.

The Court of Appeal dismissed the appeal, finding that the appellant suffers from a serious psychiatric disorder, is resistant to treatment, lacks insight, and represents a serious risk to public safety if untreated.

The Board's order was held to be reasonable.

The accused was charged with impaired driving and driving over 80.

Before the trial concluded, the 'evidence to the contrary' provisions of s. 258(1) of the Criminal Code were amended by Bill C-2, altering the requirements for the Carter defence.

The trial judge and summary conviction appeal judge held that the amendments did not apply retrospectively and acquitted the accused.

The Crown appealed.

The Court of Appeal allowed the appeal, holding that the amendments are essentially evidentiary in nature and do not eliminate the defence, but merely alter its evidentiary content.

Therefore, the amendments apply retrospectively to trials continuing after their enactment.

The appellant appealed a 2007 disposition of the Ontario Review Board.

However, a subsequent 2008 disposition was made which the appellant did not appeal, and his concerns regarding the panel's composition were addressed at both hearings.

The Court of Appeal quashed the appeal as moot.