Richard J. Posner

The appellant was convicted of second-degree murder.

On appeal, he argued the trial judge erred by permitting the Crown to cross-examine a recanting witness on a prior inconsistent police statement under s. 9(2) of the Canada Evidence Act, and that the Crown's closing address improperly invited the jury to use the statement for its truth.

He also challenged the adequacy of the Vetrovec warning regarding the Crown's key witness.

The Court of Appeal dismissed the appeal, finding the limited cross-examination served the ends of justice, the jury was properly instructed on the use of the statement, and the Vetrovec warning adequately cautioned the jury while properly identifying independent confirmatory evidence.

The defendant was charged with impaired operation and refusing to provide a breath sample following a traffic stop on September 2, 2012.

A police officer observed the defendant's vehicle exhibiting poor driving behavior on the Queen Elizabeth Way and conducted a traffic stop.

The officer observed various indicators including glassy eyes, an odour of alcohol on the defendant's breath, unsteadiness on her feet, and difficulty putting on high-heeled shoes.

The defendant admitted to consuming one glass of wine approximately two hours earlier.

The officer arrested the defendant for impaired operation without administering an approved screening device.

The defendant challenged the arrest on Charter grounds, alleging the officer lacked reasonable and probable grounds and that her detention was arbitrary.

The court found, by the barest of margins, that the officer did not have objectively tenable grounds to make the breath demand and dismissed both charges.

The Crown appealed an acquittal for operating a motor vehicle with blood alcohol exceeding 80 mg, arguing the trial judge erred in finding a reasonable doubt about whether the accused’s breath samples were analyzed by an approved instrument.

The doubt arose from a calibration certificate referring to an “Intoxilyzer 8000” while the qualified technician’s certificate referred to an “Intoxilyzer 8000C,” which is the approved Canadian instrument.

The Crown also sought to introduce fresh expert evidence clarifying that the distinction relates only to software and that the calibration certificate is standard for both models.

The court held that the trial judge’s conclusion was open on the evidence and that the alleged misapprehension of evidence was not material.

The proposed fresh evidence was rejected because the Crown failed to meet the due diligence requirement under the Palmer test.

The appeal from acquittal was therefore dismissed.

The accused was charged with multiple firearm-related offences following a search of his apartment.

The defence challenged the validity of the search warrant, arguing that the Information to Obtain (ITO) was insufficient to justify issuance.

The Crown conceded that the redacted ITO did not disclose reasonable and probable grounds but argued the warrant was valid based on unredacted information protected to preserve confidential informant identity.

The court applied the Garofoli Step 6 procedure, excised erroneous information from the ITO regarding the accused's alleged involvement in drug trafficking, and determined that the remaining information—comprising credible and detailed information from a reliable confidential informant—provided sufficient grounds for the warrant's issuance.

The Charter motion was dismissed.

The Registrar of the Alcohol and Gaming Commission applied to revoke a liquor licence held by a full-patch member of the Hells Angels.

The board dismissed the application, and the Divisional Court affirmed.

On appeal, the Court of Appeal found that the board erred in law by applying a 'balance of probabilities' standard instead of the lower 'reasonable grounds for belief' standard required by s. 6(2)(d) of the Liquor Licence Act.

The board also misconstrued the test by improperly limiting its analysis of the licensee's past conduct to his operation of the business and requiring evidence of past criminal activity.

The appeal was allowed and the matter remitted to the board for reconsideration.

The applicants, charged with drug offences following a warrantless search of their residence, brought an application for a stay of proceedings alleging breaches of their s. 7, s. 8, and s. 11(b) Charter rights.

The s. 7 claim arose from the principal police witness failing to disclose that his personal counsel was also representing one of the applicants at the preliminary inquiry.

The court found a s. 7 breach but held it did not warrant a stay of proceedings.

However, the court found that the applicants' s. 11(b) rights were violated due to an unreasonable delay of 28 months, largely stemming from the conflict of interest issue and institutional delay.

The court granted a stay of proceedings under s. 24(1) of the Charter.

Following the dismissal of the appellant's appeal, the Ontario Securities Commission sought costs.

The Divisional Court awarded the Commission costs of the appeal fixed at $20,000 on a partial indemnity basis, finding no issue of broad public interest or misconduct by staff during settlement negotiations that would warrant denying costs.

The appellant appealed a decision of the Ontario Securities Commission dismissing his application under s. 144 of the Securities Act to set aside a settlement agreement.

The appellant argued the agreement should be set aside due to non-disclosure by Commission staff regarding an investigation into a key witness for breaching a cease trade order.

The Divisional Court held that the standard of review was reasonableness and found the Commission's decision not to revoke the settlement was reasonable, as the undisclosed information would not likely have affected the outcome of the administrative proceeding.

The appeal was dismissed.

During a s. 8 Charter voir dire in a firearms prosecution, the Crown sought to qualify a forensic document chemist as an expert in ink dating using the solvent loss ratio method to analyze a police officer’s note allegedly documenting information from a confidential informant.

The defence opposed the admission of the proposed expert evidence.

Applying the framework for novel scientific evidence, the court considered whether the technique had been tested, peer reviewed, subject to standards or known error rates, and generally accepted.

The court found the methodology lacked peer review, established standards, demonstrated testing, and general acceptance in the relevant forensic community.

The proposed evidence was therefore inadmissible and, in any event, had little probative value because the analysis could not determine the age of the ink.

During a criminal prosecution involving firearms offences, the accused brought a voir dire application to exclude evidence under s. 24(2) of the Charter following a warrantless search of a vehicle.

The court had previously found a breach of s. 8 because the search warrant authorized the search of a black Acura but police searched a green Honda Accord.

The Information to Obtain contained misleading information, relied on an untested confidential informant whose information was not corroborated, and resulted in a warrant that could not have properly issued.

Applying the framework in R. v. Grant, the court found the police conduct fell on the serious end of the spectrum despite the reliability of the evidence.

Balancing the Grant factors, the court concluded that admission of the firearms evidence would bring the administration of justice into disrepute.

The accused brought a Charter motion alleging a breach of s. 8 arising from searches conducted pursuant to warrants for a residence and vehicle during a firearms investigation.

The reviewing court excised misleading portions of the Information to Obtain after finding that certain statements about a vehicle and police observations were inaccurate or reckless.

Applying the principles governing warrant review and the Debot criteria for confidential informant information, the court found that although the tip was detailed and compelling, the source was untested and the alleged criminal activity was not sufficiently corroborated by police investigation.

After excision, the remaining record did not provide reasonable and probable grounds for the issuance of the search warrant.

The court therefore concluded that the applicant’s s. 8 Charter rights were infringed.

The applicant, charged with firearms offences, brought a Charter application alleging his section 8 rights were violated by a warrantless search of a vehicle.

The search warrant authorized the search of a black Acura, but the police searched a dark green Honda Accord bearing the same license plate.

The court found that the make and model of the vehicle were relevant identifiers, especially since license plates are easily transferable.

The court concluded that the failure to search the vehicle specified in the warrant was a substantive defect, rendering the search warrantless.

The accused brought a Charter application alleging a breach of s. 8 arising from the execution of a search warrant that authorized the search of a black Acura but resulted in the search of a Honda bearing the same licence plate.

The accused sought leave to cross‑examine the affiant on several issues relating to the confidential informant and the basis for the warrant.

Applying the principles from R. v. Garofoli, the court held that cross‑examination should be permitted only where necessary to enable full answer and defence and where a basis exists to believe it may discredit a precondition for the authorization.

Leave was granted only on the issue of reasonable and probable grounds relating to the discrepancy between the vehicle described in the warrant and the vehicle searched.

Cross‑examination on the informant’s past performance, the identity linkage between the accused and a nickname, and alleged drug trafficking information was refused due to lack of necessity and risk to informant privilege.

The offender, a tax preparer, pleaded guilty to defrauding the federal government of over $1.1 million through false expense and childcare schemes.

He personally profited by $448,000.

The Crown sought a 3-year penitentiary sentence, while the offender sought a conditional sentence.

The court emphasized general deterrence and denunciation for large-scale frauds by persons in positions of trust.

The offender was sentenced to 3 years' imprisonment and ordered to pay a $448,000 fine in lieu of forfeiture, with an additional 3 years consecutive in default of payment.

The accused was charged with driving over 80 and failed to appear for her trial date.

The trial judge arraigned her in absentia and entered a not guilty plea, relying on a filed designation of counsel.

The summary conviction appeal court set aside the conviction, finding a violation of the accused's right to be present.

The Court of Appeal allowed the Crown's appeal, holding that the designation of counsel made the accused legally present.

Furthermore, even if her physical presence was required, the curative proviso applied because the error was a procedural irregularity that caused no prejudice.

The Registrar of the Alcohol and Gaming Commission of Ontario appealed a Board decision refusing to revoke the respondent's liquor licence.

The Registrar sought revocation because the respondent's sole officer and director was actively involved in the Hell's Angels.

The Registrar argued the Board applied the wrong legal standard under s. 6(2)(d) of the Liquor Licence Act.

The Divisional Court dismissed the appeal, finding the Board applied the correct 'reasonable grounds for belief' standard and properly assessed all pertinent factors regarding the operation of the licensed establishment.

The accused, charged with drug and firearms offences, brought a Charter application seeking to exclude evidence seized from their apartment.

The police had conducted a warrantless entry to secure the apartment while awaiting a search warrant, claiming exigent circumstances.

The court found no exigent circumstances existed and that the police had actually conducted an unauthorized search during the entry.

Furthermore, the Information to Obtain (ITO) the search warrant contained unconstitutionally obtained and misleading information, and the warrant itself failed to specify the apartment number.

The court found multiple serious breaches of section 8 of the Charter and excluded the seized evidence under section 24(2).

The appellants appealed a Licence Appeal Tribunal decision ordering the cancellation of their Commercial Vehicle Operator's Registration (CVOR) certificates due to poor safety records.

The appellants sought to introduce fresh evidence of improved safety performance since the Tribunal's decision.

The Divisional Court dismissed the appeal, finding the Tribunal's decision to cancel the certificates was reasonable given the appellants' high violation rates and past safety issues.

The Court declined to admit the fresh evidence, noting it either could have been obtained prior to the hearing or did not render the sanction manifestly unfit.

The Registrar of the Alcohol and Gaming Commission of Ontario proposed to revoke the liquor licence of a corporate licensee on the basis that its principal was a full-patch member of the Hells Angels Motorcycle Club.

The Registrar argued that membership in a criminal organization is inherently incompatible with the requirement under the Liquor Licence Act to carry on business in accordance with the law and with honesty and integrity.

The Board declined to revoke the licence, finding that while the Hells Angels is a criminal organization, there was no evidence of any specific past or present conduct by the licensee demonstrating an inability to govern the establishment lawfully.

The licensee had operated the premises without incident or regulatory infractions for ten years.

The appellant appealed his manslaughter conviction, arguing the trial judge inadequately instructed the jury on the mental element required for the offence.

The jury had asked whether deliberately pushing the deceased out of the way, without intending to push her down the stairs, constituted an unlawful act.

The trial judge instructed that any intentional application of force without consent is an unlawful act and the strength of the force is immaterial.

The Court of Appeal found this instruction wrong in law, as it failed to explain that unlawful act manslaughter requires objective foreseeability of the risk of bodily harm that is neither trivial nor transitory.

The appeal was allowed and a new trial ordered.