Paul Burstein

The appellant appealed his conviction and sentence for dangerous driving causing death following a retrial.

He argued that the trial judge erred in jury instructions regarding witness reliability, the use of his exculpatory statement, and legal causation.

He also raised issues regarding the Crown's failure to call a witness from the first trial and issue estoppel.

The Court of Appeal dismissed all grounds, finding no errors in the jury instructions, no abuse of process in the retrial, and no error in principle regarding the sentence.

The Crown brought a motion for a stay pending appeal of a judgment declaring the medical use of marijuana regulations invalid.

The lower court had suspended the declaration of invalidity for six months.

The Crown sought to extend this suspension by staying the judgment until the appeal could be heard.

The Court of Appeal dismissed the motion, finding that the Crown provided no evidence or rationale to support extending the suspension period or to show prejudice if the judgment took effect.

The Crown appealed the dismissal of its application for a retroactive DNA data bank authorization under s. 487.055(1)(c) of the Criminal Code.

The application was dismissed because the respondent's sentence for his predicate sexual offences had expired, although he was still serving a consecutive sentence for breach of probation.

The Crown argued that s. 139(1) of the Corrections and Conditional Release Act merged the sentences, making the application timely.

The Court of Appeal dismissed the appeal, holding that sentence merger under the CCRA is for administrative purposes like parole eligibility and does not extend the duration of a sentence for a specific offence for the purpose of DNA authorizations.

The appellant was convicted of living off the avails of prostitution and exercising direction for the purpose of aiding prostitution in relation to an escort agency.

On appeal, he argued that business records containing double hearsay were improperly admitted and that breaches of a publication ban deprived him of a fair trial.

The Court of Appeal dismissed the conviction appeal, finding the records admissible under the co-conspirators exception to the hearsay rule and that the publication ban issues did not cause a miscarriage of justice.

The sentence appeal was allowed, reducing the sentence from two years less a day to 12 months' imprisonment due to the appellant's lack of prior record and the trial judge's refusal to allow time for sentencing submissions.

The appellant appealed his criminal conviction, arguing the trial judge erred in failing to give limiting instructions regarding a videotaped experiment, another individual's prior assault and alleged confession, and the appellant's after-the-fact conduct.

The appellant also argued the Crown's closing address improperly contained personal opinions.

The Court of Appeal dismissed the appeal, finding no error in the jury instructions and concluding that while the Crown's expressions of personal opinion were improper, they did not undermine the fairness of the trial.

The appellant appealed his conviction and sentence for sexual assault, arguing the trial judge erred in her jury charge regarding post-offence conduct and expert evidence concerning a drug associated with amnesia.

The Court of Appeal dismissed the appeal, noting the trial was brief, the factual scenario was easy to understand, and defence counsel's failure to object to the charge was significant.

The court found no merit in the other grounds raised and denied leave to appeal the sentence.

The appellant appealed two conditions of his 15-month conditional sentence for sexual assault.

The Court of Appeal struck the condition requiring him to write a letter of apology to the victim.

The court held that a court-mandated expression of remorse is subjective, fruitless, and diminishes the mitigating effect of genuine remorse.

The court also varied a curfew condition on consent to allow the appellant to work and earn a livelihood.

The appeal was allowed and the conditions were varied accordingly.

The appellant was convicted of impaired driving causing death and sentenced to four years in prison.

He appealed his conviction, arguing that the search warrant used to seize his blood sample from the hospital was invalid due to the police officer's failure to disclose a prior warrant refusal.

He also argued the trial judge erred by refusing to compel the prosecuting attorney to testify on the voir dire.

The Court of Appeal dismissed the appeal, finding that the non-disclosure did not invalidate the warrant because the second information was substantially different and the omission was not intended to mislead.

The court also upheld the trial judge's refusal to compel the prosecutor to testify and agreed that the blood sample was non-conscriptive evidence that should not be excluded under section 24(2) of the Charter.

The appellant appealed convictions for sexual assault and sexual touching involving a child complainant, arguing ineffective assistance of trial counsel and seeking to adduce fresh evidence of an alleged recantation.

The court held that counsel's decision not to call the complainant's mother was a defensible strategic choice and that the failure to obtain a rebuttal expert caused no prejudice because the proposed opinion evidence did not undermine the core issue of identity of the perpetrator.

Applying the Palmer framework, the court found the proposed fresh evidence was not reasonably capable of belief due to pervasive contradictions and unreliability.

The conviction appeal was dismissed, and although leave to appeal sentence was granted, the five-year penitentiary sentence was upheld as fit.

The appellant appealed his conviction for failing to comply with an approved screening device demand, arguing that the trial judge misapprehended the evidence and that the criminalization of the refusal under the Criminal Code infringed his rights against self-incrimination and to counsel under the Charter.

The Court of Appeal held that the trial judge did not misapprehend the evidence regarding the police officer's standard practice of checking the mouthpiece.

Furthermore, the Court found that the primary goal of roadside screening is preventive, the results cannot be used at trial, and the intrusion is minimal.

Therefore, the criminalization of the refusal does not infringe the principle against self-incrimination or the right to counsel.

The appellant appealed a second degree murder conviction arising from a fatal stabbing in an apartment where multiple persons were present, including a witness with a motive to deflect blame.

The Crown conceded several material jury charge errors, including failure to give an adequate Vetrovec warning, misdirection on after-the-fact conduct, mischaracterization of an alternative suspect’s violent record, and inadequate instructions on intoxication and the manslaughter alternative.

The Court of Appeal held the errors were serious and declined to apply the curative proviso because it could not conclude the verdict would inevitably have been the same.

The court also stated that protected statements made during a mental assessment under s. 672.21 of the Criminal Code may be used only on credibility and not as positive evidence of guilt.

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

The appellant appealed a conviction for assault causing bodily harm arising from multiple fractures suffered by his two-month-old child.

He argued that the trial judge misapprehended the medical and timing evidence and that, at most, the facts supported criminal negligence causing bodily harm because parental implied consent to caregiving force had not been vitiated.

The court rejected both arguments, holding there was evidence supporting the finding that the appellant caused the injuries within the charged period and that the force used was not for legitimate caregiving purposes and was, in any event, clearly excessive.

The court held that implied parental consent is strictly limited to force used for the child's care and within ordinary parental norms.

The conviction was affirmed.

The appellants appealed the dismissal of an application for certiorari seeking to quash a search warrant.

The court held that the reviewing judge properly applied the governing certiorari standard, which asks whether there was evidence upon which the justice of the peace could issue the warrant rather than reweighing the information.

Any alleged non-disclosure regarding an informant's antecedents would not have affected issuance, and the remaining information disclosed ample grounds.

The court further held that certiorari is discretionary and found no basis to interfere with the application judge's judicial exercise of discretion.

The appellant appealed a sentence of fifteen months' imprisonment imposed after a guilty plea to production of 102 marijuana plants.

The court held that the sentence was outside the appropriate range, noting the absence of a prior record, the absence of evidence of trafficking, and recent Supreme Court of Canada guidance on conditional sentences.

Applying the principle that a conditional sentence is likely a better sanction where both punitive and restorative objectives can be achieved, the court substituted a conditional sentence of fifteen months commencing on the date of judgment.

The appellant appealed a 12-month sentence for aggravated assault and sought a conditional sentence followed by probation.

The court emphasized the appellant's youth, first-offender status, remorse, positive pre-sentence report, strong family supervision, and the trial judge's finding that he was not a danger to the community.

In light of recent Supreme Court of Canada conditional sentencing decisions, the court held that denunciation and general deterrence could still be achieved by a conditional sentence in this case.

Leave to appeal sentence was granted, the appeal was allowed, and the sentence was converted to an 18-month conditional sentence followed by 9 months probation.

The appellant appealed a conviction for keeping a common bawdy house arising from the operation of a commercial house of domination offering sadomasochistic services.

The court held that the trial judge reasonably found the erotica sessions were primarily sexual in nature and constituted prostitution because they involved lewd acts for payment for the sexual gratification of clients on a frequent and habitual basis.

The court upheld the admission of a videotape corroborating the commercial services, agreed that most of the proposed expert evidence was irrelevant or insufficiently reliable under the governing expert evidence framework, and found that the search-related Charter breaches did not justify a stay.

The appeal was dismissed.

The Crown appealed a decision of the Ontario Court of Appeal which had allowed the accused's appeal from convictions for dangerous driving, impaired driving, and driving while disqualified, and ordered a new trial.

The Supreme Court of Canada allowed the Crown's appeal, agreeing with the dissenting reasons of Doherty J.A. at the Court of Appeal.

The Court found that the trial judge did not prejudge the credibility of a witness, the accused was not prevented from making full answer and defence, and the Crown's cross-examination did not exceed permissible limits.

The trial judgment was restored.

The appellant and a companion forcibly confined and sexually assaulted a young woman.

While the companion strangled the victim, the appellant held her legs to prevent her from struggling.

The appellant was convicted of first degree murder under s. 214(5) of the Criminal Code.

On appeal, the Supreme Court of Canada held that the phrase 'caused the death' in s. 214(5) requires the accused's actions to be a substantial and integral cause of the death.

The Court found that the appellant's act of holding the victim's legs was a substantial cause of her death, as she likely would have resisted the strangulation otherwise.

The appeal was dismissed.