Peter J. Osborne

The appellant challenged her conviction on the basis that the trial judge shifted the burden of proof, unfairly assessed credibility, and erred in finding a document was concocted without independent evidence.

The court held that the impugned passage had to be read in context, that the trial judge properly applied the W.(D.) framework, and that the credibility analysis was reasonable.

It further held that the finding of concoction flowed directly from the rejection of the appellant’s evidence regarding the exhibit and was distinguishable from prior authorities requiring independent evidence.

The conviction appeal was dismissed.

Leave to appeal sentence was granted, but the sentence appeal was also dismissed as the sentence was manifestly reasonable and, if anything, lenient.

The Crown appealed a sentence imposed for possession of cocaine for the purpose of trafficking and possession of an unregistered handgun.

The court held that the trial judge erred in principle by combining a custodial sentence and a conditional sentence where the resulting total effectively amounted to a penitentiary sentence exceeding two years less one day.

However, the court also held that blended custodial and conditional sentences are legally permissible for multiple offences where the total sentence does not exceed two years less one day and the statutory preconditions in s. 742.1(b) are met.

In light of fresh evidence showing successful rehabilitation efforts while incarcerated, the court reduced the conditional sentence on the drug offence to sixteen months less one day and left the remaining terms intact.

The appellants appealed an order dismissing their action on summary judgment on the basis of issue estoppel arising from a committee decision made in the course of a costs disposition.

The court held that the committee's finding that the proceedings were not unwarranted did not answer the central question whether the investigation and proceedings were undertaken in bad faith.

Because the first requirement of issue estoppel was not met, the summary judgment order could not stand.

The matter was remitted to the motions judge to determine whether there was otherwise a genuine issue for trial, and leave to admit fresh evidence was refused.

The appellant challenged his convictions on the basis that the trial judge failed to give a Vetrovec warning and provided inadequate reasons for accepting the complainant's evidence and rejecting his testimony.

The court held that no Vetrovec warning was essential on the facts, and although fuller reasons would have been preferable, the reasons were adequate in the circumstances and did not occasion a miscarriage of justice.

The court accepted the Crown's concession that the Kienapple principle required a stay of the breaking and entering and committing theft charge in favour of a theft under $5,000 conviction, and a stay of the weapon dangerous charge.

Leave to appeal sentence was granted, the component sentences were varied accordingly, but the total sentence of five years and two months was upheld as fit.

The appellant sought leave to appeal sentence from a custodial sentence of 15 months followed by 18 months probation.

The court was not persuaded that the sentencing judge committed an error in principle and held the sentence was entirely fit.

However, on the Crown's concession, the court varied the probation term requiring residence on a specified First Nations reserve and substituted a condition requiring residence at a residence approved by the probation officer.

Leave to appeal sentence was granted to give effect to that variation, and the appeal was otherwise dismissed.

The Crown appealed an order transferring a 17-year-old charged with second degree murder from ordinary court to youth court under the Young Offenders Act.

The appeal turned on whether the respondent had shown likely rehabilitation within the seven-year dispositional period, given psychiatric evidence of schizophrenia and possible conduct disorder.

The court held that the youth court judge misconstrued and misapplied the psychiatric evidence by making a definitive finding excluding conduct disorder despite significant evidentiary gaps.

Because the respondent failed to establish likely rehabilitation within the statutory period, the transfer order was set aside and the matter was directed to remain in ordinary court.

The Crown appealed a conditional sentence imposed after convictions for four counts of trafficking in a substantial quantity of heroin.

The majority held that the sentencing judge gave excessive weight to the respondent's psychological condition and erred by treating treatment of that condition as central to rehabilitation absent evidence connecting it to the offences.

While the respondent's history of torture and resulting post-traumatic stress disorder justified some reduction from the usual range, a community-based sentence was held unavailable for this level of heroin trafficking.

The court allowed the appeal, set aside the conditional sentence and probation order, and substituted a six-year penitentiary sentence.

The intervenor's motion to introduce fresh evidence on electronic monitoring was dismissed.

Criminal appeal from convictions for impaired driving causing bodily harm and driving over the legal blood-alcohol limit, where identity of the driver was the only live issue.

The court held that the Crown's failure to preserve the vehicle for possible forensic testing breached the appellant's s. 7 disclosure rights and constituted an abuse of process under the lost-evidence framework in La, but did not justify a stay because the prejudice could be mitigated.

The trial judge nevertheless erred by preventing the defence from cross-examining on the consequences of the missing forensic evidence and by treating the absence of testing as irrelevant to reasonable doubt.

The convictions were set aside and a new trial ordered.

The appellant challenged assault convictions on the basis that the verdicts were unreasonable.

The court held that in-court identification evidence from the two victims, standing alone, could not support reasonable convictions.

Although evidence that the attacker was addressed by the first name Perry was capable of providing some confirmation, the Crown led no evidence explaining how the recorded licence plate number led police to the appellant.

The court held it could not fill gaps in the Crown's case and concluded the verdict did not cross the reasonableness threshold.

A criminal lawyer appealed a contempt conviction arising from his failure to appear with his client at a peremptory disposition hearing.

The Court of Appeal held that counsel non-appearance is not per se criminal contempt and that the fault element requires at least indifference to obligations to the court and client.

The trial judge erred by cutting off evidence about arrangements made for an associate to attend and by relying on prior non-appearances by the lawyer and others in his firm without proper notice.

The conviction was quashed and an acquittal entered because, on the uncontested affidavit record, the conduct did not amount to criminal contempt.

The appellant appealed convictions for break and enter and possession of stolen property, arguing he was denied full answer and defence because he could not adduce medical evidence concerning a hypoglycaemic condition said to affect the voluntariness of an inculpatory statement.

He also argued that the condition impaired his ability to defend himself at trial and alleged trial judge bias.

The court held that neither the trial record nor the fresh evidence supported any claim that the appellant lacked an operating mind, could not participate meaningfully at trial, or that the statements were involuntary.

The findings of fact made on the voir dire were fully supported by the evidence, and the allegation of bias based on a single remark was without merit.

The appeal was dismissed.

The appellant father challenged an order holding that Ontario could exercise jurisdiction over custody and access proceedings involving children born and living in Dubai.

Although neither parent was ordinarily resident in Ontario for Divorce Act purposes and the children were not habitually resident in Ontario, the motion judge found the criteria in s. 22(1)(b) of the Children’s Law Reform Act were met.

The Court of Appeal held that those findings were supported by the evidence, including the children’s real and substantial connection to Ontario and the balance of convenience favouring Ontario.

The court also refused fresh evidence directed to one aspect of the Dubai court access issue and dismissed the appeal.

Appeal from a judgment requiring a homeowner to pay outstanding lumber invoices used in the construction of his residence after dismissal of a construction lien claim.

The appellant argued the evidence did not prove the lumber was ordered or delivered, and further argued he was merely an undisclosed principal not liable for unauthorized acts of his project manager and related entities.

The court deferred to the trial judge's factual findings on delivery and ordering, and held the appellant was liable for earlier invoices within the agents' actual authority and for later invoices through ratification once the agency relationship had become disclosed though the principal remained unnamed.

The appeal was dismissed.

The appellant appealed his sexual assault conviction and sought leave to appeal sentence.

He argued that the trial judge misapprehended evidence concerning hand holding and that reply evidence was improperly admitted.

The court rejected both grounds, finding evidentiary support for the trial judge’s findings and concluding the reply evidence was not strictly collateral and was inconsequential in any event.

Leave to appeal sentence was granted, but the sentence of two years less a day was held to be within the appropriate range.

The Crown appealed a sentence imposed following guilty pleas to multiple offences arising from prolonged domestic harassment, break and enter, threats, and related misconduct.

The Court of Appeal held that the sentencing judge erred in principle by underemphasizing denunciation and deterrence and by relying on an inaccurate understanding of the respondent's prior record.

Applying the sentencing principles emphasized in harassment jurisprudence, the court held that the absence of physical violence was not a mitigating factor for criminal harassment.

Leave to appeal sentence was granted, the appeal allowed, and the total sentence increased to four years.

The trustee appealed the dismissal of its application concerning a bankrupt's pending unjust dismissal award under the Canada Labour Code.

The court held that the unjust dismissal claim was property within the meaning of the Bankruptcy and Insolvency Act, and damages for lost wages could be characterized as wages, but the treatment of such compensation was governed by s. 68 rather than automatic vesting under ss. 67 and 71.

The court further held that the current version of s. 68 applied, that a trustee could invoke s. 68 after the bankrupt's discharge, and that failure to complete the s. 68 procedure did not bar interim protective relief.

The trustee was not entitled to intervene in the labour arbitration to pursue costs.

The appeal was allowed and the wage-related award was ordered paid into court pending determination under s. 68.

The appellant appealed a conviction for break and enter and theft, arguing that the trial judge improperly reversed the onus on a statement voir dire when admitting an exculpatory police statement.

The respondent conceded the legal error but argued the curative proviso should save the conviction because the remaining evidence was compelling.

The court rejected that position, holding it was not satisfied the verdict would necessarily have been the same without the statement.

The appeal was allowed and a new trial was ordered.

The appellant challenged the constitutionality of the tertiary bail ground in s. 515(10)(c) of the Criminal Code after being denied bail on the basis that detention was necessary to maintain confidence in the administration of justice.

The Court of Appeal held that s. 11(e) of the Charter does not freeze constitutionally valid bail grounds to attendance in court and public safety, and that Parliament may enact additional grounds if they satisfy the constitutional standard of just cause.

Applying the Pearson and Morales framework, the court concluded that the provision limits detention to a narrow set of circumstances and serves the proper functioning of the bail system.

The court further held that the phrase concerning confidence in the administration of justice, especially when read with the enumerated statutory factors, is neither vague nor overbroad.

The appeal was dismissed.

The appellant appealed convictions for criminal negligence in the operation of a motor vehicle and assault with a weapon arising from a confrontation between police and occupiers of a provincial park claimed under an aboriginal treaty right.

The Court of Appeal rejected the argument that the trial judge misapprehended the evidence concerning intent and held the reasons must be read as a whole under the governing appellate framework.

The court further held that the defence of property under s. 41(1) of the Criminal Code was unavailable because the occupiers were not in peaceable possession and the force used by driving at police officers was neither necessary nor proportionate.

The defence of justification under ss. 27 and 30 also failed because the trial judge did not accept that the appellant acted to rescue the arrested band member.

Conviction and sentence appeals were dismissed.

On a bank's appeal from dismissal of an action on a promissory note signed by a spouse as co-signor of an investment loan, the court held that absent a fiduciary duty the lender had no obligation to disclose its concerns about the investment's quality, and failure to follow internal lending policies on independent advice did not itself render the loan unenforceable.

The majority held there is no categorical presumption of undue influence arising from a spousal relationship; rather, the party alleging undue influence must show a de facto relationship of trust and confidence in financial matters sufficient to support the presumption.

Although the lender was on constructive notice of potential wrongdoing because the transaction was disadvantageous to the spouse and arose within a marital relationship, the majority found no wrongdoing established and, alternatively, any presumption was rebutted.

The appeal was allowed and judgment granted to the bank, but no costs were awarded.