Richard J. Posner

The applicants, charged with two counts of second-degree murder following a nightclub shooting, brought Charter applications to exclude evidence.

The police had obtained the applicants' names and contact information from their banks without a warrant, claiming exigent circumstances due to the fleeing armed suspects.

The court found a breach of section 8 of the Charter, noting the applicants had a diminished expectation of privacy in the 'tombstone' banking information.

However, applying the Grant framework under section 24(2), the court declined to exclude the evidence, finding the police acted in good faith with an honest belief in exigent circumstances and that exclusion would significantly harm the administration of justice.

The appellant was convicted of four counts of murder relating to four victims killed over 75 days using the same handguns.

On appeal, the appellant argued the trial judge erred by refusing to sever one murder count from the other three, delivering an unbalanced jury charge, and admitting unusual motive evidence.

The Court of Appeal dismissed the appeal, finding no error in the trial judge's discretionary refusal to sever the counts, concluding the jury charge was fair and balanced, and holding that the motive evidence was properly grounded in the record.

The appellant, a transit enforcement officer, appealed his convictions for fabricating evidence and obstruction of justice, as well as his sentence.

He had issued fraudulent tickets to homeless individuals to cover up time theft.

The Court of Appeal dismissed the conviction appeal, finding the trial judge did not err in rejecting the appellant's alternative inference that the tickets were issued on information and belief.

However, the sentence appeal was allowed, and the 14-day intermittent sentence was reduced to time served, in light of recent jurisprudence making conditional sentences available for fabricating evidence.

The appellant appealed his summary convictions for assaulting a peace officer and attempting to disarm a peace officer.

The charges arose after police forcibly entered his home without a warrant in response to a 911 call regarding a domestic dispute.

The summary conviction appeal court found that the trial judge erred in law by failing to consider whether the police had reasonable alternatives to a forced entry, as required by the Godoy framework.

The court concluded the police were not acting in the lawful execution of their duties, quashed the convictions, and entered acquittals.

The applicant, charged with conspiracy to commit murder, drug trafficking, and firearm possession, applied for judicial interim release.

The Crown opposed release on the secondary and tertiary grounds.

The court found that the strict release plan, which included house arrest, electronic monitoring, and supervision by the applicant's parents, adequately addressed the secondary ground concerns.

On the tertiary ground, although the charges were extremely serious and the Crown's case appeared strong, the court held that the applicant's Type 1 diabetes placed him at higher risk of severe complications from COVID-19 in a congregate setting.

Balancing the strict release plan, the health risks, and the need to flatten the curve, the court granted the application for release.

Following a conviction on one count of sexual assault, the defendant brought an application to re-open the trial and seek a mistrial based on fresh evidence that emerged in the victim's impact statement.

The fresh evidence revealed that the complainant had pre-existing mental health conditions and was taking multiple medications at the time of the alleged assault, information that had not been disclosed during trial.

The defendant's former counsel had relied on a health history form completed by the complainant that failed to disclose these conditions.

The court found that the fresh evidence was material and could have affected the verdict, particularly regarding the complainant's credibility and reliability as a witness.

The court granted the application to re-open and declared a mistrial, finding that the trial judge could not objectively reassess the complainant's credibility without creating an appearance of bias.

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 Crown appealed the respondent's acquittal on a charge of operating a motor vehicle with a blood alcohol concentration over 80 mg.

The trial judge had acquitted the respondent after accepting expert evidence that the absence of a value for 'uncertainty of measurement' raised a reasonable doubt about the proper functioning of the approved instrument.

The Superior Court of Justice allowed the appeal, finding that uncertainty of measurement is not required by law and that speculative evidence regarding potential instrument malfunction is insufficient to constitute 'evidence tending to show' under section 258(1)(c) of the Criminal Code.

A new trial was ordered.

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.

The applicant sought to exclude his post-arrest statement, arguing a Charter breach due to police questioning about a separate homicide without re-advising him of his right to counsel, constituting a change in jeopardy.

The court found no obligation for further advice as the applicant was not a suspect in the second homicide, understood his rights, and was offered further consultation.

The application was dismissed.

The appellants were convicted of possession of cocaine and marijuana for the purpose of trafficking following a jury trial.

They appealed on four grounds: (1) breach of s. 11(b) Charter rights to trial within a reasonable time; (2) erroneous admission of expert opinion evidence from a police officer involved in the investigation; (3) an unreasonable Corbett ruling excluding certain prior convictions; and (4) unfairness in the trial judge's charge to the jury regarding the defence witness.

The Court of Appeal rejected the s. 11(b) argument but found merit in the other three grounds, concluding that the cumulative effect of these errors denied the appellants a fair trial.

The applicant, charged with first-degree murder, sought a stay of proceedings under sections 11(b) and 24(1) of the Charter due to unreasonable delay.

The court applied the framework from R. v. Jordan, finding a net delay of 31.25 months, which slightly exceeded the presumptive ceiling.

However, the court identified a transitional exceptional circumstance, noting the applicant's significant delay in filing the stay application after the release of Jordan, indicating reliance on pre-Jordan principles.

Additionally, a Morin analysis was conducted, attributing substantial periods of delay to the defence's conduct, particularly regarding counsel retainer issues.

The institutional delay was found to be well within acceptable guidelines.

The application for a stay was dismissed.

The Crown sought to admit evidence of a violent rivalry between two criminal groups, the Asian Assassinz and the Chin Pac, to establish motive and intention in a first-degree murder trial.

The respondent, alleged to be associated with the Chin Pac, was charged with the murder of an individual associated with the Asian Assassinz.

The defence opposed the admission of this evidence, citing prejudicial impact and lack of probative value.

The court ruled the evidence admissible, finding its probative value on motive and intention outweighed its prejudicial effect, provided appropriate limiting instructions were given to the jury.