Richard J. Posner

The accused was found in the driver's seat of a damaged vehicle and arrested after failing a roadside breath test.

At the station, she provided breath samples showing a blood alcohol concentration over 200mg.

She challenged the admissibility of the breath results, alleging Charter breaches regarding the officer's grounds for arrest, delay in facilitating access to counsel, and an arbitrary overhold at the station.

The court found a 32-minute arbitrary detention but declined to exclude the evidence under section 24(2).

The court also rejected arguments that a 'purge fail' during testing rendered the results unreliable.

The accused was found guilty of operating a conveyance with a blood alcohol concentration over 80mg.

The appellant towing company brought a motion for a stay of the Director's decision refusing to renew its Tow Operator and Vehicle Storage Certificates pending appeal, and for an order issuing interim certificates.

Applying the RJR-MacDonald test, the Tribunal found that while there was a serious issue to be tried, the appellant failed to establish irreparable harm and the balance of convenience favoured the public interest in highway safety, given the appellant's history of regulatory contraventions.

The Tribunal also held it lacked jurisdiction to order the issuance of interim certificates.

The motion was dismissed.

The Law Society brought a motion for an interlocutory suspension against three paralegals, alleging their involvement in a scheme to file meritless appeals of Highway Traffic Act guilty pleas.

The Tribunal previously dismissed the motion, finding no evidence that the paralegals had knowledge of the scheme.

The paralegals subsequently sought costs against the Law Society.

The Tribunal found that the Law Society's motion was unwarranted and doomed to fail, as it proceeded without any evidentiary foundation.

The Tribunal ordered the Law Society to pay costs to the paralegals totaling $53,000.

This mid-trial ruling addresses a Corbett application regarding the admissibility of a prior youth manslaughter conviction for the accused, Jahwayne Smart, in a first-degree murder trial.

The court applies the four Corbett factors and concludes that the prejudicial effect of admitting the manslaughter conviction outweighs its probative value, given the risk of propensity reasoning by the jury.

The ruling allows the Crown to cross-examine the accused on his adult record but excludes the youth manslaughter conviction.

This decision addresses the criminal charge of sexual assault against Robert Morelli, an osteopath accused of performing an internal pelvic treatment on his patient, A.M., which was alleged to be a sexual assault.

The court carefully analyzed whether the touching was of a sexual nature, considering the clinical context, the nature of the treatment, and the consent of the complainant.

The judge found that although the treatment involved a controlled act that osteopaths were not authorized to perform under the Regulated Health Professions Act, the treatment was conducted in a clinical and therapeutic manner, and Morelli honestly believed the patient consented.

The court acquitted Morelli of sexual assault and also found the Crown did not prove common assault beyond a reasonable doubt.

The defendant, Liibaan Yusuf, was charged with firearm possession offences under the Criminal Code following a new trial ordered by the Court of Appeal.

The Crown's case relied on circumstantial evidence regarding the firearm's location in a car where Yusuf was a passenger.

The court found that while Yusuf's knowledge and control of the firearm was one reasonable inference, it was not the only one, given that other individuals had access to the vehicle and the evidence was ambiguous.

The Crown failed to prove possession beyond a reasonable doubt, leading to an acquittal on all counts.

The appellant physician appealed a decision of the Discipline Committee of the College of Physicians and Surgeons of Ontario revoking his certificate of registration for sexual abuse of a patient and other professional misconduct.

The appellant argued the Committee made palpable and overriding errors in its credibility findings, misapprehended evidence, and applied uneven scrutiny to the evidence.

The Divisional Court dismissed the appeal, finding the Committee's credibility determinations were entitled to significant deference, the Committee properly addressed inconsistencies in the evidence, and there was no demonstration of uneven scrutiny.

The applicants, charged with first degree murder and attempted murder, brought pretrial applications to exclude evidence.

They challenged warrantless police searches (s. 8 Charter), the grounds for their arrest, and alleged excessive force during arrest and transport.

The court dismissed all applications, finding that the applicants lacked standing to challenge the searches of the rental vehicle and condominium premises, that the police had reasonable grounds for arrest, and that the force used during the dynamic takedown and subsequent transport was justified given the high-risk nature of the arrest and the applicants' resistance.

The appellant, R.G., appealed his convictions for sexual abuse of his daughter, arguing the trial judge erred in dismissing his application to reopen the trial based on new cell phone evidence.

The Court of Appeal found that the trial judge misapplied the legal test for cogency and placed excessive weight on due diligence.

The new evidence, consisting of cell phone records, significantly undermined the complainant's credibility regarding a key incident and an uncharged incident, despite the defense's lack of due diligence in obtaining it earlier.

The Court concluded that the interests of justice required the convictions to be set aside and a new trial ordered.

The Applicant, Parteek Ghuman, faced charges of possession of fentanyl for trafficking and obstruction of justice.

He brought a Charter application (voir dire) to exclude evidence obtained during a warrantless vehicle search and alleged violations of his s. 8 (unreasonable search/seizure) and s. 10(b) (right to counsel) rights.

The court found that the police officer lacked reasonable grounds for the search under the Cannabis Control Act, using it as a pretext for a criminal investigation.

The officer also failed to promptly inform Ghuman of his right to counsel upon detention and delayed implementing that right after arrest.

Concluding that the cumulative breaches were serious and impacted Ghuman's Charter interests significantly, the court excluded the evidence (fentanyl, cash, digital scale, cell phones, and false name) under s. 24(2) of the Charter, leading to Ghuman's acquittal.

The accused, Andrew Douglas, brought an application for a directed verdict of acquittal on a first-degree murder charge at the close of the Crown's case.

The application was opposed by the Crown.

The court dismissed the application, finding that there was sufficient circumstantial evidence for a properly instructed jury to reasonably find guilt beyond a reasonable doubt on the first-degree murder charge, particularly regarding planning and deliberation.

The case was allowed to proceed to the jury on the first-degree murder charge.

This ruling addresses a Corbett application in a first-degree murder trial.

The accused sought to limit the admissibility of his criminal record for cross-examination on credibility.

The Crown argued for the full record, contending the defence would attack the deceased's character.

The court balanced the probative value of the convictions against the prejudicial effect of propensity reasoning, particularly for violent and similar offences.

The judge ruled that only convictions for obstruction of a Peace Officer and theft (read down from robbery) would be admissible, finding that the defence's argument regarding the deceased's possession of a firearm was a direct response to the indictment, not an attack on character, thus not creating an imbalance requiring the full record.

The accused, charged with drug trafficking and conspiracy to commit murder, brought an application to exclude evidence seized during multiple warrantless searches.

The court found the warrantless entry at 10 York Street was justified by exigent circumstances to prevent a planned shooting.

The warrantless entry at 88 Harbour Street and the seizure of a vehicle breached section 8 of the Charter, but the evidence was admitted under section 24(2).

However, the search of a bedroom at 15 Danum Road involved egregious Charter breaches, including a violation of the right to counsel and an invalid consent, leading the court to exclude the drugs and cash found there.

The applicants, charged with drug and firearms offences, brought a Charter application challenging the validity of several search warrants and production orders that stemmed from a homicide investigation.

At a preliminary stage, they sought leave to cross-examine the affiants and investigating officers, arguing that the police intentionally misled the authorizing justice by elevating one applicant to a 'suspect' without new evidence to secure a wiretap authorization.

The court granted leave to cross-examine three officers regarding the change in the applicant's suspect status, finding it could assist in determining whether police conduct subverted the preauthorization process, but denied leave to cross-examine a fourth officer whose warrants were subject only to a facial validity review.

The applicant, R.G., sought an order to reopen his trial and declare a mistrial after being found guilty of 10 counts of sexual abuse but before sentencing.

He presented fresh evidence, including cell phone records and affidavits, to establish an alibi for some charges and challenge the complainant's credibility.

The court applied the rigorous "exceptional circumstances" and "clearest of cases" test for vacating a guilt adjudication, incorporating the Palmer criteria for fresh evidence.

The court found that the proposed evidence could have been obtained with due diligence prior to trial and that the application was an attempt to reverse tactical decisions made by the defence.

The application was dismissed, as the test for reopening the trial or declaring a mistrial was not met.

The appellants, G.F. and R.B., appealed their sentences for sexual assault after their convictions were restored by the Supreme Court of Canada.

The trial judge had sentenced G.F. to three and a half years and R.B. to three years.

The appellants raised several grounds of appeal, including the trial judge's personal objections to the conduct, penalizing them for maintaining innocence, an alleged error in finding a breach of trust, inadequate distinction in culpability, and failure to consider collateral consequences (immigration for G.F. and mental health for R.B.).

The Court of Appeal dismissed all complaints, finding no errors in principle that impacted the sentences.

The court affirmed the finding of a breach of trust and reiterated that collateral immigration consequences cannot justify artificial sentences.

The sentences were deemed proportionate and not "demonstrably unfit."

The appellant was convicted of second degree murder after the deceased, a drug dealer, was found beaten and strangled in his apartment.

The appellant was the last person seen with the deceased and had the deceased's blood on his jacket.

On appeal, the appellant argued the trial judge erred by failing to give a modified W.(D.) instruction regarding exculpatory footwear impression evidence, failing to correct the Crown's closing address, admitting references to dreams and flashbacks from police interviews, and that the verdict was unreasonable.

The Court of Appeal dismissed the appeal, finding no errors in the jury instructions or the admission of evidence, and concluding that the circumstantial evidence reasonably supported the guilty verdict.

The appellant appealed convictions for four counts of sexual assault and one count of assault against his wife.

The appeal argued errors in the trial judge's credibility assessment of the complainant, rejection of the appellant's evidence, and use of cross-count similar fact evidence.

The Court of Appeal dismissed the appeal, upholding the trial judge's findings on credibility and the admissibility of similar act evidence to show a pattern of abusive conduct.

The accused was charged with sexual assault and two counts of assault against his wife.

The complainant alleged the offences occurred on New Year's Eve 2017 but did not report them to police until October 2018, during a marital separation and concurrent family court proceedings for sole custody of their child.

The court found the timing and circumstances of the disclosure, along with inconsistencies in the complainant's accounts, provided a powerful motive to fabricate and raised a reasonable doubt.

The accused was found not guilty on all counts.

The accused, Tanade Mohamed, shot and killed two men in a nightclub parking lot following a minor altercation.

He claimed self-defence and provocation for the first victim, and accident for the second.

The co-accused, Abdirisaq Ali, drove the getaway vehicle and was charged as a party to the offences.

The court rejected Mohamed's claims of self-defence and provocation, finding him guilty of second-degree murder for the first victim.

However, the court found a reasonable doubt regarding his intent to kill the second victim, resulting in a manslaughter conviction.

The co-accused was acquitted of all charges, as the court found a reasonable doubt regarding his prior knowledge of the shooter's intentions.