Richard J. Posner

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 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 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 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 appellants were convicted of sexual assault of a 16-year-old complainant who was intoxicated during a camping trip.

The appellants appealed their convictions on the grounds that the trial judge erred in his analysis of consent and capacity to consent.

The Court of Appeal found that the trial judge failed to separately consider the issues of consent and capacity, and failed to apply the proper legal framework for determining incapacity due to intoxication.

The court held that the trial judge appeared to equate any degree of impairment with incapacity, which is an error of law.

The convictions were set aside and a new trial was ordered.

The appellant was convicted of having care or control of a motor vehicle while impaired by alcohol, contrary to s. 253(1)(b) of the Criminal Code.

The appeal challenged the trial judge's findings regarding the appellant's "alternate plan" to avoid driving, the application of the reasonable doubt standard, and the assessment of credibility.

The Superior Court of Justice dismissed the appeal, affirming that the trial judge correctly applied the "realistic risk of danger" test from Boudreault, finding no concrete or reliable alternate plan to negate the inherent risk posed by the appellant's extreme intoxication, despite the driver's seat presumption being rebutted.

The appellant appealed his conviction for second degree murder in connection with the fatal shooting of a man leaving a New Year's Eve party.

The central issue at trial was whether the appellant or his associate, Baptists Bernier, fired the fatal shot.

Bernier testified as a Crown witness after pleading guilty to being an accessory after the fact to murder.

The appellant raised three grounds of appeal: (1) failure to instruct the jury that Bernier's guilty plea could not be used as evidence against the appellant; (2) failure to give an adequate Vetrovec instruction regarding Bernier's evidence; and (3) failure to adequately relate evidence to the issue of intent for the included offence of manslaughter.

The Court of Appeal dismissed all three grounds and upheld the conviction.

The accused was charged with operating a motor vehicle with over 80 mg of alcohol in 100 ml of blood following a roadside stop at an LCBO plaza.

The defence sought exclusion of breathalyzer results on grounds that the accused, whose first language was Punjabi, was not provided with rights to counsel and breath demand in his language until arrival at the police station, and that he was not given the opportunity to contact counsel of choice.

The court found no breach of Charter rights.

Although there were language difficulties at the roadside, the officer appropriately sought assistance from a Punjabi-speaking officer.

The breath demand was provided as soon as practicable given the language barrier.

The accused was informed of his right to counsel of choice but did not indicate he wished to contact private counsel.

The breathalyzer results were admitted and the accused was found guilty.

Three appellants convicted of first and second degree murder appealed their convictions.

Two were convicted of first degree murder and one of second degree murder.

The appellants challenged the verdicts as inconsistent and unreasonable, and raised multiple grounds of appeal relating to the trial judge's jury charge, including issues regarding post-offence conduct instructions, circumstantial evidence instructions, and the treatment of various pieces of evidence.

The Crown cross-appealed on the acquittal of one appellant on first degree murder.

The appellate court dismissed all grounds of appeal, finding the verdicts neither inconsistent nor unreasonable, and that the trial judge committed no errors in her charge to the jury.

The accused was charged with operating a motor vehicle while impaired by alcohol and with having over 80 ml of alcohol per 100 ml of blood.

A police officer observed the accused's vehicle with no lights on, approached him at a gas station, and formed suspicion of impairment based on odour of alcohol, slurred speech, and staggering.

The officer made an approved screening device demand, but the accused inhaled rather than exhaled twice.

The officer arrested the accused for impaired operation.

The Crown relied on breath samples obtained approximately 65 minutes after the initial observation.

The trial judge found that the Crown failed to prove impairment beyond a reasonable doubt due to incomplete and vague evidence, and that the breath samples were not obtained as soon as practicable due to an unexplained 9-minute delay for a phone call and a 13-minute gap at the police division.

The accused was acquitted on both counts.

The appellant was convicted of first degree murder in the death of his wife, Adrienne Roberts, who was found murdered in the basement of their home.

He appealed on three grounds: (1) that the application judge erred in dismissing his O'Connor application for production of criminal investigation files relating to two other similar crimes; (2) that the trial judge erred in dismissing his alternate suspect defence application; and (3) that the first degree murder verdict was unreasonable and should be substituted with second degree murder.

The Court of Appeal upheld the conviction, finding no error in the application judge's O'Connor ruling, no air of reality to the alternate suspect defence, and that the jury's verdict of first degree murder was reasonable based on the totality of the circumstantial evidence.

The appellant appealed his convictions on multiple firearm and drug offences.

The central issue was whether evidence seized during a warrantless search on March 6, 2012 should have been admitted despite a prior illegal warrantless search on February 29, 2012.

The trial judge had excluded evidence from the first search but admitted evidence from the second search, which was conducted pursuant to a warrant.

The Court of Appeal found that the trial judge erred in his section 24(2) analysis by impermissibly diminishing the seriousness of the Charter breach and considering irrelevant factors.

The court held that the deliberate and ongoing nature of the police misconduct required exclusion of the evidence to preserve public confidence in the administration of justice.

The three accused, Amandeep Jodha, Manjot Chadde, and Gurvir Deol, were charged with aggravated assault and assault with a weapon following a violent brawl.

The Crown's theory relied on identifying the perpetrators and establishing a common intention to bring weapons.

The court found all three accused not guilty, concluding that the Crown failed to prove its case beyond a reasonable doubt due to the unreliability and internal inconsistencies of all witness testimonies, making it impossible to identify the perpetrators.

A joint application for a stay of proceedings based on s.11(b) Charter delay was dismissed as moot, though the court noted it would have been dismissed on its merits due to a combination of defence delay, inherent delay, and exceptional circumstances.