Richard J. Posner

The applicant sought Garofoli relief excluding wiretap, tracking, surveillance, hallway video, and search warrant evidence obtained during a drug investigation that later intersected with a first degree murder prosecution.

The court found that one assertion in the ITO inaccurately stated the applicant was directly observed in a bag exchange with a major drug target, and that assertion had to be excised.

However, applying the Garofoli framework, the court held the affiant honestly and reasonably believed the applicant was involved based on circumstantial evidence, leaving sufficient reliable grounds to support the Part VI authorization and tracking warrant.

The hallway camera installation in the condominium common area breached s. 8 of the Charter because it was not specifically authorized, but the evidence was admitted under s. 24(2).

All exclusion applications were dismissed.

The appellant was charged with possession of cocaine for the purpose of trafficking arising from a reverse sting operation conducted by the RCMP in August 1997.

The appellant was initially acquitted in 2000, but the Court of Appeal set aside the acquittal and ordered a new trial.

At the retrial in 2014, the appellant sought a stay of proceedings based on abuse of process, alleging that the lead investigator deliberately misled his superiors and withheld disclosure.

The trial judge rejected these allegations and convicted the appellant.

The appellant appealed both conviction and sentence.

The Court of Appeal dismissed the conviction appeal, finding no material misapprehension of evidence, and dismissed the sentence appeal, finding the 10 years 10 months imprisonment and delayed parole eligibility were fit.

The plaintiff sued the police and Crown Attorneys for negligent investigation, unlawful arrest, and intentional infliction of mental suffering following an acquittal on a murder charge that involved a 'Mr. Big' operation.

The Crown Attorneys moved to strike the plaintiff's claim and a crossclaim brought by the police for negligent legal advice.

The court struck the plaintiff's claim against the Crown Attorneys, finding it barred by absolute common law immunity, which only allows claims for malicious prosecution.

However, the court refused to strike the police crossclaim for negligent legal advice, finding it was not plain and obvious that Crown Attorneys do not owe a duty of care to police when providing legal advice during an investigation.

The court also held that statutory immunity under s. 8 of the Ministry of the Attorney General Act applied to the plaintiff's claim but not the crossclaim.

The appellant appealed his conviction for first degree murder in the killing of a taxicab driver.

He argued that the trial judge erred in her instructions on the use of his police statements and post-offence conduct, and that the Crown's cross-examination was improper.

He also alleged ineffective assistance of trial counsel for failing to lead evidence of a 'family conspiracy' by his co-accuseds' family to frame him.

The Court of Appeal dismissed the appeal, finding no errors in the trial judge's instructions or the Crown's cross-examination, and concluding that trial counsel's tactical decisions were sound and did not constitute ineffective assistance.

The offender, Amrik Dusanjh, was convicted after trial of robbery and committing robbery while masked.

The court considered his background, including a history of domestic violence, substance abuse (alcohol and cocaine), anger management issues, and a significant criminal record with 23 entries, including prior violent offences and a previous robbery conviction.

He was also facing deportation.

The Crown sought 4 years' incarceration, while the defence proposed approximately 3 years, emphasizing the offender's commitment to treatment and the collateral consequence of deportation.

The court imposed a global sentence of 3 years and 3 months, comprising 18 months for robbery (after 15 months pre-sentence custody credit at 1:1) and 6 months less 1 day consecutively for committing robbery while masked.

The court declined enhanced pre-sentence custody credit due to the offender's recidivist profile and limited rehabilitative potential.

Collateral orders included a life-long weapons prohibition and a DNA order.

The court recommended the sentence be served at the Ontario Correctional Institute for intensive anger management and substance abuse treatment.

The accused was charged with the armed robbery of a gas station.

The robber was masked, but left a palm print on the glass counter during the robbery, which was captured on video surveillance.

The Crown relied on circumstantial evidence, specifically the palm print matched to the accused and the video showing the robber placing his hand in that exact location.

The court found that the only rational inference from the evidence was that the accused was the masked robber, and found him guilty.

The Appellants appealed an order of the Registrar of Motor Vehicles suspending their Commercial Vehicle Operator's Registration (CVOR) certificates for 15 days due to a high safety violation rate identified in an audit.

The Tribunal found that while the Appellants had a poor safety record in the past, they had since taken significant steps to improve compliance, resulting in a dramatically lower violation rate in a subsequent audit.

The Tribunal concluded that upholding the suspension would be punitive rather than remedial, and directed the Registrar not to carry out the suspension order.

The appellants were convicted of possession of heroin for the purpose of trafficking and sentenced to nine years' imprisonment.

After the jury was discharged, it was discovered that the jury foreman had brought a document containing extraneous information into the jury room.

The appellants appealed their convictions, arguing that the juror misconduct caused a miscarriage of justice, that the trial judge failed to properly instruct the jury on post-offence conduct, and that the verdicts were unreasonable.

They also appealed their sentences.

The Court of Appeal dismissed the appeals, finding no reasonable possibility that the extraneous information affected the verdict, no error in the jury instructions or the dismissal of the directed verdict application, and that the sentences were fit.

The appellant appealed his conviction by a jury, arguing that the Crown made an inappropriate comment during closing submissions and that the trial judge erred by instructing the jury that there is a presumption in law that a witness comes to court to tell their honest recollections.

The Court of Appeal dismissed the appeal, finding that while the Crown's comment was inappropriate, it did not result in a miscarriage of justice.

The Court also held that the erroneous jury instruction did not prejudice the appellant, as both the appellant and the complainant testified, and the jury was properly instructed on the factors for assessing credibility.

The appellant was convicted of second degree murder following a shooting that occurred during a drug transaction.

On appeal, the appellant argued that the trial judge erred in responding to a jury question by failing to instruct the jury on the defence of a third party under former s. 37 of the Criminal Code, and by inadequately addressing the mens rea component of the question.

The Court of Appeal dismissed the appeal.

The court found there was no air of reality to the proportionality requirement of s. 37, as shooting the victim in the core to defend a third party who was not in immediate peril constituted excessive force.

The court also held that the trial judge's instruction on mens rea was correct and comprehensive.

The accused brought a mid-trial mistrial application in a jury trial, alleging ineffective assistance of trial counsel after his own cross-examination had gone badly.

The court held that although a trial judge has jurisdiction to entertain such an application, the appellate ineffective-assistance framework must be modified in the trial context because there is no verdict and defence strategy is still unfolding.

The accused bore the onus of proving the factual foundation for the allegations and establishing that counsel's incompetence had irrevocably compromised trial fairness such that any eventual verdict would likely be unreliable.

On the evidence, the allegations were found speculative, unsupported, and in several respects dishonest, while trial counsel's performance appeared prepared, focused, and competent.

The application was dismissed.

The applicant sought a declaration that he was eligible for accelerated parole review (APR) because he committed his offences before Parliament abolished the APR process.

He was sentenced after the abolition came into force.

The court dismissed the application, finding that the applicant's expectation of liberty crystallized at the time of sentencing, not the time of the offence.

Because APR was already abolished when he was sentenced, the legislative change did not amount to retrospective punishment under section 11(i) of the Charter.

In a manslaughter appeal, the Crown challenged an order for a new trial based on alleged misdirection to the jury concerning post-offence photographs and characterization of a school conversation as a confession.

The Court held the photographs were admissible on identity because appearance at the time of the offence was in dispute and any prejudice was manageable through limiting instructions.

Reading the charge as a whole, the Court found no realistic risk that jurors would reason impermissibly from broad eyewitness descriptions.

The Court also held that referring to confession in recounting the Crown's submissions was not a toxic instruction where the jury was repeatedly cautioned to assess the actual words and context.

The appeal was allowed, the conviction restored, and sentencing issues were remitted.

The accused was charged with impaired driving and refusing to provide a breath sample following his arrest on December 11, 2012.

The Crown alleged the accused drove a motor vehicle while impaired by alcohol and subsequently refused to comply with breath demands made by two police officers.

The defence challenged the lawfulness of the arrest and breath demands, alleging violations of Charter sections 8 and 9.

The court found the arresting officer had reasonable and probable grounds to arrest and make the initial breath demand based on the totality of circumstances, including the accused's flight from police, strong odour of alcohol, bloodshot eyes, and staggering.

The court found the accused guilty of refusing to provide a breath sample but acquitted him of impaired driving, finding the evidence of impairment, while suspicious, did not establish guilt beyond a reasonable doubt.

The appellant was convicted of second-degree murder and sentenced to life imprisonment without parole eligibility for 15 years after shooting a bystander outside a tavern.

He appealed his conviction, arguing improper Crown cross-examination and errors in the trial judge's instructions on intent and provocation.

The Court of Appeal dismissed the conviction appeal, finding no reversible errors in the trial judge's charge or the Crown's conduct.

However, the sentence appeal was allowed, and the period of parole ineligibility was reduced to 12 years, as the trial judge failed to give adequate weight to the appellant's lack of criminal record and potential for rehabilitation.

The accused was charged with driving while disqualified.

A Charter application was brought alleging violations of section 9 (arbitrary detention) and section 10(b) (right to counsel).

The court found no section 9 breach, as the initial stop was justified by reasonable suspicion based on the officer's observation of evasive driving and information about a prohibited driver.

However, a clear section 10(b) breach was established and conceded by the Crown, as the accused was detained and questioned for approximately 30 minutes without being advised of his rights to counsel.

The court found the evidence obtained prior to the breach was not tainted by the subsequent violation, as the connection was too tenuous.

The accused was convicted of driving while disqualified.

A sentence reduction was imposed as a remedy for the Charter violation.

The appellant, a tax preparer, appealed his convictions for two counts of fraud and his sentence of three years' imprisonment and a $448,000 fine.

He argued that his rights under s. 11(b) of the Charter were violated due to a 65-month delay, and that his s. 8 Charter rights were violated during the execution of search warrants at his home and office.

The Court of Appeal dismissed the appeal, finding that the delay was largely attributable to inherent time requirements and a mistrial caused by the trial judge's illness, and that the seized documents were properly obtained under s. 489(1)(c) of the Criminal Code.

The sentence was upheld as being within the accepted range for a serious fraud against the public purse.

The Registrar of Alcohol and Gaming proposed to revoke the appellant's liquor licence on the basis that its sole officer and director was a member and former president of the Hells Angels Motorcycle Club.

Following a re-hearing ordered by the Court of Appeal, the Licence Appeal Tribunal found that the licensee's extensive involvement and leadership role in a criminal organization provided reasonable grounds for belief that he would not carry on business in accordance with the law and with integrity and honesty, despite a 13-year unblemished record in operating the licensed premises.

The Tribunal ordered the Registrar to carry out the proposal to revoke the licence.

The appellant appealed his convictions for impaired care or control and driving with excess alcohol.

He argued the trial judge erred in dismissing his s. 11(b) Charter application for unreasonable delay, in exhibiting a reasonable apprehension of bias by preparing reasons before hearing submissions, in failing to exclude breath readings due to a s. 2(a) Charter breach involving the removal of his turban, and in rejecting his evidence of bolus drinking.

The Superior Court of Justice allowed the appeal, finding the trial judge erred in his s. 11(b) analysis, his s. 2(a) analysis, and his credibility findings regarding the appellant's bolus drinking defence.

A new trial was ordered on both counts.

The accused was charged with possession of cocaine for the purpose of trafficking arising from an RCMP reverse‑sting operation.

Before arraignment, the accused sought stays of proceedings alleging violations of s. 11(b) of the Canadian Charter of Rights and Freedoms due to delay and s. 7 based on abuse of process, including allegations that police misled superiors in obtaining authorization and intentionally withheld disclosure.

The court conducted an extensive analysis of the delay from arrest in 1997 through retrial in 2014, finding that most delay was attributable to the accused, inherent time requirements, or periods when the accused was outside the jurisdiction.

The court rejected allegations that police misconduct or nondisclosure amounted to an abuse of process and concluded the reverse‑sting operation was properly authorized and executed.

Both Charter applications were dismissed and the accused was convicted.