Philip Perlmutter

The appellant, Yunlong Li, appealed his conviction for impaired driving causing bodily harm on two grounds: the trial judge's refusal to re-open the trial for a "bolus drinking" defence, and the failure to exclude breathalyzer samples obtained after his initial arrest but before his re-arrest for the more serious charge.

The Court of Appeal dismissed the appeal, finding that the trial judge correctly exercised discretion in refusing to re-open the case, as the new evidence would not have altered the outcome and the bolus drinking defence was not made out.

The court also found no Charter violations regarding the appellant's right to counsel or the communication of jeopardy, noting his English comprehension and the police's subjective grounds for arrest.

The appellant was convicted of impaired operation of a vessel causing death and criminal negligence causing death after an incident where an eight-year-old boy drowned when their canoe capsized in dangerous river conditions.

The appellant appealed the convictions and sentence, arguing that a canoe is not a "vessel" under the Criminal Code, his s. 10(b) right to counsel was infringed, and expert evidence was required for the criminal negligence conviction.

The Court of Appeal dismissed the appeal, holding that a canoe is a vessel, the s. 10(b) right to counsel was permissibly suspended for the Approved Screening Device (ASD) demand even in a hospital setting, and expert evidence was not necessary for criminal negligence given the obvious risks.

The six-year sentence was also upheld as fit.

Constable Daniel Montsion was tried on charges of manslaughter, aggravated assault, and assault with a weapon arising from his role in the arrest of Abdirahman Abdi on July 24, 2016, in Ottawa.

Mr. Abdi died in cardiac arrest shortly after the arrest.

The Crown alleged that Constable Montsion unlawfully assaulted Mr. Abdi by punching him multiple times in the face and head while wearing hard-knuckled gloves, and that this assault was a significant contributing cause of Mr. Abdi's death.

The defence argued that Constable Montsion's use of force was legally justified under section 25(1) of the Criminal Code and that he did not cause Mr. Abdi's injuries or death.

After a 72-day trial, Justice Kelly found Constable Montsion not guilty on all charges, concluding that the Crown failed to prove beyond a reasonable doubt that his conduct was unlawful or criminally negligent, that he caused Mr. Abdi's nasal injuries, or that he caused Mr. Abdi's death.

A Toronto Police Service officer pleaded guilty to obstructing justice by destroying or converting evidence to his own use.

During the execution of a search warrant at a marijuana dispensary, the officer stole three cannabis-infused chocolate bars that had been overlooked during the search.

He later consumed one of the bars while on duty and armed with a firearm, resulting in severe intoxication.

His impaired state led him to make a false officer-in-need-of-assistance call, which caused responding officers to rush to the scene.

One officer was seriously injured in the response.

The evidence tampering resulted in the withdrawal of criminal charges against seven persons.

The court rejected a conditional discharge despite the officer's otherwise exemplary 13-year career, finding that a conviction and conditional sentence of imprisonment was necessary to protect the rule of law and denounce the egregious breach of public trust.

The Crown appealed the respondent police officer's acquittal on two counts of sexual assault.

At trial, the Crown relied on similar fact evidence from two complainants who alleged the respondent sexually assaulted them in his marked police vehicle after offering them rides home.

The trial judge acquitted the respondent, finding the complainants' evidence unreliable and concluding the similar fact evidence could not assist.

The Superior Court of Justice allowed the appeal, finding the trial judge erred by adopting a siloed approach to the similar fact evidence, failing to consider the improbability of coincidence, and misapprehending the Crown's reliance on extrinsic similar acts.

A new trial was ordered.

A police officer was charged with assault causing bodily harm after breaking a suspect's jaw during an arrest at a domestic disturbance call.

The officer responded to a report of a domestic incident in progress and, after investigating, arrested the suspect for assault.

When the suspect resisted arrest, the officer used force that resulted in a broken jaw.

The trial judge acquitted the officer, finding that he had reasonable grounds to arrest, that exigent circumstances justified entry into the residence, and that the force used was justified and proportionate to the threat posed.

The defendants were charged with sexual assault.

The Crown sought to admit expert toxicologist evidence regarding the effects of "date rape" drugs, consistent with the complainant's symptoms of incapacitation, despite no direct evidence of drug administration.

The defence objected, arguing irrelevance due to the absence of a drug charge and late disclosure of new testimonial details.

The court ruled the expert evidence admissible, finding it relevant to the issue of consent and the complainant's incapacitation, even without knowing the exact drug or its administration method.

The court noted that late disclosure, if remedied by adjournment, affects weight rather than admissibility.

The defendants applied to replace police bail conditions imposed under section 503(2.1) of the Criminal Code with a judicial bail order under section 515.

The defendants were charged with aggravated assault, assault with a weapon, and public mischief arising from an altercation with a civilian.

The Crown sought to maintain three contested conditions: residency in Ontario, a curfew from 10:00 pm to 6:00 am, and abstention from alcohol consumption.

The court found that the residency condition was unnecessary to ensure attendance in court, the curfew was punitive and unnecessary given the situational nature of the alleged offence, and the alcohol prohibition lacked evidentiary support and was not necessary to address public safety or confidence in the administration of justice.

The court replaced the police bail with a judicial bail order removing the three contested conditions while maintaining no-contact provisions, weapons prohibitions, and notification requirements.

The appellant appealed the dismissal of an application challenging the Crown's assumption of a private prosecution and subsequent withdrawal of charges against a police officer for alleged assault in custody.

The appellant had commenced a private prosecution against Constable Labreche, and after a prima facie case was found, the Crown intervened to assume carriage.

The appellant challenged this intervention in the Superior Court, alleging breach of Charter rights and bias.

The application was dismissed.

The Crown subsequently withdrew the charge.

The appellant brought a second application asserting constitutional challenges to the legislative regime permitting Crown intervention.

The Court of Appeal dismissed the appeal on the basis of issue estoppel, finding that both applications raised identical issues regarding the Crown's decision to take over the prosecution and the appellant's exclusion from it.

The accused, an on-duty police officer, was tried before a jury for dangerous driving causing death after striking a pedestrian while driving an unmarked police vehicle at 115 km/h.

At the pre-charge conference, the Crown requested that the included offence of dangerous operation simpliciter be left with the jury, arguing they might find the driving dangerous but have a reasonable doubt about causation due to the pedestrian jaywalking.

The trial judge ruled there was no air of reality to the included offence, finding that even if the pedestrian's actions were an intervening act, the dangerous driving remained a significant contributing cause of death.

The applicant sought declarations that s. 507.1 of the Criminal Code and s. 11(d) of the Crown Attorney’s Act were unconstitutional, and to set aside the Attorney General's intervention and withdrawal of a private prosecution.

The court dismissed the application, finding that the issues raised had already been judicially determined in prior proceedings (a recusal application and an extension of time to appeal), and therefore the doctrine of issue estoppel applied.

Costs were awarded against the applicant.

The applicants, three police officers charged with sexual assault, sought to vary a sealing order to prohibit publication of information from an Information to Obtain (ITO) DNA warrants, arguing it was necessary to preserve trial fairness and prevent witness tainting and stigmatization.

The Crown supported the ban for consistency with a prior publication ban on conflict motion materials.

The media respondents opposed the ban.

The court dismissed the application, finding the applicants failed to provide sufficient evidence to meet the Dagenais/Mentuck test for a publication ban, which requires demonstrating a serious risk to the proper administration of justice that cannot be prevented by alternative measures, and that the salutary effects outweigh the deleterious effects on freedom of expression and public right to know.

The court emphasized the presumptive openness of warrant materials and the public interest in the investigation of police officers.

Three Toronto police officers charged with sexual assault sought a publication ban on investigative materials filed by the Crown in a related application to remove counsel.

The court applied the Dagenais/Mentuck test, finding a real and substantial risk to trial fairness due to potential juror stigmatization and witness tainting, especially given the salacious nature of the allegations against police officers.

While acknowledging the public interest in scrutiny, the court determined that allowing media access to the information (without publication) and expert commentary provided a sufficient substitute for full public disclosure.

The publication ban was granted, prohibiting publication until the jury retires or the charge is withdrawn/dismissed.

The Crown brought a pre‑trial application seeking admission of a photograph allegedly depicting a police officer assaulting a protester during the 2010 G20 Summit in Toronto.

The image had been anonymously uploaded to a website and lacked metadata, raising concerns about provenance and possible manipulation.

Competing expert evidence addressed whether the photograph had been altered, but neither expert could confirm its authenticity or trace its origin.

Applying the established criteria for authenticating photographic evidence, the court held the Crown failed to establish fairness and absence of manipulation.

As a result, the photograph was not authenticated and was ruled inadmissible at trial.

A police constable was charged with assault with a weapon arising from his use of a police asp during the arrest of a protester at the G-20 demonstrations in Toronto on June 26, 2010.

The Crown alleged that the force used exceeded what was necessary.

The defendant testified that he used the asp to assist fellow officers in securing the arrestee's limbs.

The court found that the defendant's use of force was not proportionate, necessary, or reasonable, and that his explanation for the blows was an after-the-fact justification rather than the actual reason for them.

The defendant was found guilty.

A Toronto Police Service officer was charged with assault causing bodily harm against a member of the public.

The Crown alleged the officer used excessive force and made an unlawful arrest for public intoxication.

The defence argued the officer had reasonable grounds to believe the complainant was intoxicated and posed a safety risk, and that any force used was necessary to effect a lawful arrest.

The court found the officer had reasonable grounds to believe the complainant was intoxicated, that there was a risk to safety, and that arrest was necessary.

The court also found the officer was entitled to the defence of honest mistake of fact.

The charge was dismissed.

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.