Philip B. Norton

This is an appeal from conviction and sentence.

The appellant challenged the dismissal of his s. 11(b) Charter application, arguing the trial judge erred in characterizing a 60-day period as an exceptional COVID-19 delay without evidence and in double-counting a 7-day defence delay.

The Court of Appeal dismissed both arguments, affirming the trial judge's consideration of local circumstances for the COVID-19 delay and finding no double-counting.

The appellant also sought leave to appeal his 6-month custodial sentence, requesting a conditional sentence.

Leave was granted, but the sentence appeal was dismissed, as the Court found no error in principle or unfitness.

The appellant was convicted of sexual exploitation, sexual assault, and uttering a threat.

He appealed his sentence of five years for sexual exploitation, six months for sexual assault, and 90 days for uttering a threat, all concurrent.

The appellant argued the trial judge erred by misapprehending the timing of the complainant's pregnancy and by relying on his lack of remorse as an aggravating factor.

The Court of Appeal found that the trial judge's misstatement regarding the pregnancy timing did not affect the sentence, as the pregnancy's impact was intrinsically connected to the exploitation.

The court also found the trial judge merely commented on the appellant's lack of insight and remorse, not using it as an aggravating factor.

The Court of Appeal dismissed the sentence appeal, finding the sentence fit and within the appropriate range for sexual offences against children.

The accused appealed his conviction for attempted murder, arguing the trial judge erred in admitting improper opinion evidence from a 911 dispatcher and a homicide detective, and in admitting hearsay evidence from the complainant to EMS personnel.

The Court of Appeal found that the trial judge erred in allowing opinion evidence on the accused's credibility and demeanour, and in admitting the complainant's out-of-court statements as hearsay that did not meet necessity and reliability requirements.

The court rejected applying the curative proviso, finding the errors were not trivial and the Crown's case, while strong, was not overwhelming.

A new trial was ordered.

The appellants, Torcaso and Maione, appealed their convictions for break and enter, with Torcaso also appealing an assault conviction.

They argued that a letter sent to the trial judge by a juror created a reasonable apprehension of bias and that the trial judge erred in his jury charge regarding identity.

The Court of Appeal dismissed the bias argument, finding the juror denied authorship and the letter's content did not suggest bias.

The court also found no error in the jury instructions on identity, noting the trial was a "one issue trial" and the jury was adequately cautioned.

Torcaso's sentence appeal was allowed only to the extent of striking the victim's surcharge; all other appeals were dismissed.

The appellant appealed his conviction for second-degree murder.

The central issue on appeal was whether the trial judge erred in admitting evidence of the appellant's prior discreditable conduct involving other neighbours regarding noise complaints.

The appellant had strangled and slit the throat and wrists of his neighbour following a dispute over alleged noise from her unit.

The trial judge admitted evidence of the appellant's aggressive behaviour toward other neighbours over noise complaints to establish his state of mind and provide context for the interaction with the victim.

The Court of Appeal upheld the conviction, finding no error in the trial judge's careful balancing of probative value against prejudicial effect.

The appellant appealed a sentence imposed by the Superior Court of Justice.

The appeal was abandoned and dismissed by the Court of Appeal for Ontario.

The appellant appealed his sentence of 10 years imposed for a spree of robberies committed over a two-week period.

Duty counsel argued that the sentencing judge erred by relying on an incorrect prior sentence from 2006, claiming the appellant had received six and a half years when he actually received five years and eleven months.

The court found the error immaterial as the sentencing judge had considered numerous factors and reduced a proposed 12-year sentence to 10 years based on rehabilitative efforts.

The sentence was upheld as fit and justified.

The appellant appealed his guilty pleas to dangerous driving and failure to comply with conditions of a recognizance, arising from a serious motor vehicle collision involving a police vehicle and a stolen vehicle.

The trial counsel failed to adequately advise the appellant of the immigration consequences of the guilty plea and joint submission on sentence.

The Crown conceded that the appellant demonstrated he was unaware of these consequences.

The Court of Appeal found that the appellant established a reasonable possibility that he would not have pled guilty had he known of the immigration consequences, thereby meeting the threshold for setting aside the guilty pleas.

The appeal was allowed and a new trial was ordered.

The appellant sought leave to appeal his sentence imposed for robbery, disguise with intent to commit theft, and failure to comply with a recognizance.

Two grounds were advanced: first, that the victim surcharge must be set aside (agreed to by the Crown); and second, that 54 days served in custody for unrelated offences (the Mississauga Offences) should be credited toward his sentence for the Vaughan Offences after his conviction on the Mississauga Offences was overturned on appeal.

The court granted leave to appeal and set aside the victim surcharge but dismissed the appeal on the second ground, holding that custodial time served for one offence cannot be credited toward sentencing for another offence, even where the offences are related or interconnected.

The appellants appealed a sentence imposed by the Superior Court of Justice.

The application judge declined to consider the issue of proportionality in relation to forfeiture.

The Crown argued that the factual findings made forfeiture the only available result.

The Court of Appeal disagreed, finding that the application judge was required to consider proportionality in accordance with s. 19.1(3) of the Criminal Code.

The court determined it was not in a position to conduct its own proportionality analysis given the multiple factors required to be considered under R. v. Craig.

The appeal was allowed and a new hearing on forfeiture was ordered.

The accused brought an application for a stay of proceedings pursuant to s. 11(b) of the Charter, alleging a breach of his right to trial within a reasonable time.

The charges were impaired driving and "Over 80." The gross delay from the laying of the Information on July 18, 2016 to the projected conclusion of trial on November 6, 2018 was 27 months and 20 days.

After deducting defence delay and delay attributable to exceptional circumstances, the remaining delay was 22.25 months, exceeding the presumptive ceiling of 18 months for provincial court by 4.25 months.

The court found the case was not particularly complex and granted the application, staying the charges.

The Crown sought leave to appeal a Summary Conviction Appeal Court decision that set aside a conviction for impaired operation of a motor vehicle and ordered a new trial.

The SCAC judge found that the respondent's s. 10(a) Charter rights had been breached because he was not properly informed that he was subject to a criminal investigation when questioned in the ambulance.

The Crown argued the SCAC judge erred in finding a detention occurred and that the respondent was deprived of an opportunity to make submissions on relevant case law.

The Court of Appeal denied leave to appeal, finding that neither the significance nor clear error branches of the applicable test were met.

The appellant appealed his convictions on two counts of attempted murder following a judge-alone trial.

The charges arose from the appellant using his motor vehicle as a weapon against two complainants.

The sole issue at trial was whether the appellant intended to kill the complainants.

The appellant argued that the trial judge erred by failing to consider evidence that, if he had intended to kill the complainants, he would have driven at them while they lay helpless on the ground after being struck.

The Court of Appeal found that the trial judge did not make a finding that the complainants had been struck and rendered helpless, having identified credibility and reliability issues with their evidence.

Instead, the trial judge relied on evidence from three independent neighbours and forensic evidence, including photographs showing tire tracks and extensive damage.

The Court upheld the conviction, finding the trial judge's conclusion that the appellant pursued the complainants at high speed with intent to kill was reasonable and grounded in the evidence.

The appellant appealed his conviction and sentence for assault with a weapon, raising three grounds of appeal.

First, he argued the trial judge misused a hospital report by relying on it for its truth; the court found the trial judge's reasons did not support this submission as the complainant testified to inconsistencies in her own evidence and confirmed the appellant gave her a false story.

Second, he argued the trial judge was required to make a specific factual finding on whether he threw or stabbed the complainant; the court disagreed, finding the real issue was whether the injury was intentionally or accidentally inflicted, and the trial judge's finding of intentional infliction was sufficient.

Third, he argued the trial judge failed to properly caution himself about the complainant's admissions of public mischief and perjury; the court found the trial judge appropriately cautioned himself on the complainant's previous false accusations.

The court also declined to admit fresh evidence regarding the appellant's full criminal record.

The appeal was dismissed.

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

The trial judge found that police had reasonable grounds to arrest the appellant following observation of a suspected drug transaction.

Although the trial judge found a breach of s. 8 of the Charter regarding a warrantless entry into the appellant's apartment, she held that a subsequent search warrant was validly issued and declined to exclude the evidence under s. 24(2).

The Court of Appeal upheld the conviction, finding no errors in the trial judge's analysis of reasonable grounds for arrest, reasonable expectation of privacy, the validity of the search warrant, or the s. 24(2) analysis.

The appellant, Marti Mayrhofer-Lima, appealed his conviction and sentence for impaired operation of a motor vehicle.

The appeal focused on alleged Charter breaches (sections 7, 10(a), 10(b), 8, and 9) and the trial judge's failure to provide sufficient reasons.

The Crown had conceded breaches of sections 8, 9, and 10(b), but the trial judge rejected these concessions without notifying counsel or allowing submissions on the pivotal case of R. v. Bush.

The appellate court found that the trial judge erred in not accepting the Crown's concession regarding the section 10(b) breach and in failing to provide counsel an opportunity to make submissions on R. v. Bush, which was central to the rejection of the section 9 concession.

These errors were deemed reversible, as they impacted the appellant's strategic decisions at trial.

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

The appellant appealed convictions for impaired care and control and having a blood alcohol level over 80 mg, arguing the trial judge erred in dismissing a s. 11(b) Charter motion and misapplied the law on care and control following the Supreme Court’s decision in R. v. Boudreault.

The Superior Court held that although the trial judge mischaracterized part of the delay as entirely neutral, the total Crown and institutional delay remained within the permissible range and did not violate the right to be tried within a reasonable time.

On the merits, the court found no error in the trial judge’s conclusion that the accused failed to rebut the statutory presumption of care and control and that the circumstances established a realistic risk of danger.

The accused was extremely intoxicated, seated in the driver’s seat of a running vehicle parked at a busy downtown intersection, and his evidence regarding an alternate plan not to drive was rejected as not credible.

The findings were consistent with the principles in Boudreault concerning realistic risk of danger.

The accused was sentenced for indignity to human remains and obstructing police in connection with the death and disposal of a six-week-old child.

The child died under mysterious circumstances, and the accused and the child's father disposed of the remains in a dumpster behind a convenience store, then misled police during the investigation.

The accused received 27 months in custody with credit for 23 months of pre-trial custody, resulting in a net sentence of 4 months, followed by 3 years of probation with various conditions including substance abuse counselling, life management skills training, and ongoing contact with Children's Aid Society.

The appellant appealed convictions for impaired driving and operating a motor vehicle with a blood alcohol level over 80 mg, arguing the trial judge erred by refusing to quash the information due to non-compliance with s. 508 of the Criminal Code.

The alleged defect concerned a justice of the peace failing to correctly confirm the form of release on the information, despite the accused having been released on a promise to appear.

The court held that such non-compliance did not invalidate an otherwise properly sworn information and did not deprive the court of jurisdiction.

Relying on appellate authority and persuasive Superior Court decisions, the court concluded that defects relating to confirmation of a promise to appear are collateral to the validity of the charge.

The appeal was dismissed.