Richard J. Posner

The appellant appealed a conviction for sexual assault, arguing that the trial judge failed to adequately address conflicting expert evidence on the effects of crack cocaine and the complainant's capacity to consent.

The Court of Appeal held that the trial judge was alive to the dispute between the experts and that it was open to him to accept the complainant's evidence and reject the appellant's account.

The court further held that, even if the treatment of the expert evidence was inadequate, the conviction remained supported by the accepted evidence that the complainant was unable to move, speak, or think clearly and did not consent.

The conviction appeal was dismissed, and the sentence appeal was dismissed as abandoned.

The appellant was convicted of first degree murder after stabbing a man during an altercation.

On appeal, he challenged the Crown's re-examination of a key witness and the trial judge's jury instructions on provocation, post-offence conduct, and planning and deliberation.

The Court of Appeal found that while the verdict of first degree murder was not unreasonable, the trial judge erred by failing to relate the evidence to the legal definition of planning and deliberation, particularly given the tenuous factual basis for first degree murder.

The court set aside the first degree murder conviction and substituted a conviction for second degree murder.

The appellant appealed his conviction, arguing the trial judge erred in relying on the demeanour of three Crown witnesses to infer he was the perpetrator.

The trial judge had concluded the witnesses were in terrible fear of the appellant and therefore unwilling to identify him.

The Court of Appeal held this was an error, as the trial judge could not infer positive identification from the witnesses' failure to identify the appellant.

The appeal was allowed and a new trial ordered.

The accused was convicted of sexual assault following a jury trial where he did not testify.

During the closing address, Crown counsel commented that the complainant's evidence was uncontradicted and explicitly noted that the accused did not testify and therefore could not be asked what he thought at the time.

The trial judge dismissed a mistrial application.

The Court of Appeal allowed the appeal and ordered a new trial, finding that the Crown's remarks violated both the letter and spirit of s. 4(6) of the Canada Evidence Act by pointedly drawing the jury's attention to the accused's failure to testify and inviting an adverse inference.

The appellant appealed his conviction and sentence, arguing the trial judge erred in finding he was not detained during police questioning, which he claimed resulted in a Charter violation.

The Court of Appeal upheld the trial judge's findings that the police lacked reasonable and probable grounds to arrest at the time of questioning, and that the questioning was general and non-coercive.

The court also dismissed an application to admit fresh evidence.

On the sentence appeal, the court found the trial judge's credit for stringent bail conditions was reasonable given the serious nature of the crimes and the appellant's prior record.

Both appeals were dismissed.

The appellant appealed his conviction and sentence for an assault involving stomping on an unconscious complainant's face.

The trial judge had found that an independent witness's testimony regarding the stomping was uncontradicted.

The Court of Appeal held that the trial judge materially misapprehended the evidence by failing to consider the contradictory testimony of the appellant's brother.

The appeal was allowed, the conviction was set aside, and a new trial was ordered.

The appellant appealed a sexual assault conviction involving a child complainant, arguing that the trial judge's reasons were inadequate because they did not expressly explain the rejection of his denial.

The court held that the adequacy of reasons must be assessed functionally and contextually by asking whether they permit meaningful appellate review.

Reviewing the whole record, including the complainant's evidence, the diary evidence, and the trial judge's express application of the reasonable doubt standard and the W.(D.) framework, the court found the route to conviction was clear.

The reasons were sufficient to show that the denial did not raise a reasonable doubt when weighed against the accepted evidence.

Appeal dismissed.

The appellant was convicted of two counts of sexual assault against a developmentally challenged woman.

On appeal, he argued that the trial judge misapprehended evidence regarding the complainant's credibility, specifically a prior false complaint, and unfairly discounted his own evidence.

The appellant also applied to admit fresh evidence of alleged statements by the complainant recanting her allegations.

The Court of Appeal dismissed the appeal, finding no error in the trial judge's assessment of credibility and concluding that the proposed fresh evidence did not meet the Palmer test for admission.

The appellant appealed his conviction for second-degree murder, arguing the trial judge erred by refusing to admit evidence of the victim's prior manslaughter conviction to show a propensity for violence.

The appellant sought to use this evidence to advance claims of self-defence, provocation, and reduced intent.

The Court of Appeal upheld the trial judge's finding that the defences lacked an air of reality, noting there was insufficient circumstantial evidence to support them and no evidence that cuts on the appellant's hands were defensive wounds.

An application to introduce fresh evidence was also dismissed.

The appellant challenged historical sexual offence convictions and custodial sentences arising from Youth Court and Superior Court proceedings, primarily alleging ineffective assistance of trial counsel.

The Court of Appeal applied the governing incompetence and miscarriage of justice framework and held that most factual predicates for the complaints were not established, while one impugned cross-examination in the Superior Court proceedings, though bordering on incompetence, did not undermine trial fairness or verdict reliability.

The court also rejected the challenge to the Youth Court judge’s credibility assessment, finding proper self-instruction under the governing credibility principles.

Leave to appeal sentence in the Youth Court matter was granted but dismissed, and the sentence appeal in the Superior Court matter was also dismissed.

The appellants were convicted of driving an unsafe commercial vehicle after a roadside inspection revealed defective brakes.

On appeal to the Ontario Court of Justice, they sought to introduce fresh expert evidence regarding the brake measurements, which was rejected based on the Palmer test for fresh evidence.

The appellants appealed to the Court of Appeal, arguing that the strict due diligence requirement of Palmer should not apply to Provincial Offences Act (POA) appeals.

The Court of Appeal dismissed the appeal, holding that the Palmer principles, including due diligence, govern the exercise of discretion to receive fresh evidence under s. 117(1) of the POA.

The appellant appealed a Summary Conviction Appeal Court decision that ordered a new trial after the trial judge erroneously directed an acquittal based on the Crown's failure to adduce evidence of arrest.

The appellant conceded the trial judge's error but argued the evidence could not justify a conviction.

The Court of Appeal held that the officer's evidence could support a conviction for care and control, and dismissed the appeal.

The Crown appealed an order quashing the accused's committal for trial.

The preliminary inquiry judge had misapprehended the evidence regarding the cause of death.

The reviewing judge found that the pathologist's evidence supported a non-culpable explanation for the death and that other causes were mere speculation.

Furthermore, there was no evidence that the fire was deliberately set, nor any evidence of motive, animus, or an altercation.

The Court of Appeal agreed with the reviewing judge that the circumstantial evidence amounted to no more than speculation and suspicion, and dismissed the appeal.

The appellants appealed their convictions and four-year sentences for importing cocaine.

On the conviction appeal, the Court of Appeal upheld the trial judge's ruling that if an exculpatory utterance was admitted, its entire context had to be put before the jury.

On the sentence appeal, the Court found the four-year terms were within the appropriate range and that positive fresh evidence did not justify reducing the demonstrably fit sentences.

Both appeals were dismissed.

The appellant appealed his conviction for assault, arguing that the trial judge misdirected himself on the defence of accident and failed to adequately address conflicting expert evidence.

The Court of Appeal dismissed the appeal, finding that the trial judge made clear findings of an intentional assault and properly handled the conflict in expert evidence.

The court noted that the trial judge's careful analysis of the expert testimony justified rejecting the basis for the defence expert's opinion.

The appeal from sentence was dismissed as abandoned.

The appellant appealed his convictions for assault and impaired driving, as well as his sentence.

The Court of Appeal upheld the trial judge's finding that the Crown disproved self-defence under s. 34(2) of the Criminal Code, as the appellant stabbed his assailant without warning when he could have escaped.

The court also upheld the rejection of the necessity defence for impaired driving.

The sentence appeal was allowed in part, reducing the impaired driving sentence from one year to four months concurrent, based on a Crown concession.

The court declined to interfere with the trial judge's refusal to impose a conditional sentence for the assault.

The appellants, a pharmacist and his pharmacy, appealed a Divisional Court decision upholding their convictions for professional misconduct by the Discipline Committee of the Ontario College of Pharmacists.

Leave to appeal was granted solely on the issue of whether the Complaints Committee had jurisdiction to refer allegations of dispensing errors to the Discipline Committee that were unrelated to the original complaints being investigated.

The Court of Appeal held that under section 26(2) of the Health Professions Procedural Code, the Complaints Committee only has jurisdiction to refer specified allegations that are 'related to the complaint'.

The Committee exceeded its jurisdiction by referring unrelated dispensing errors discovered during the investigation.

The appeal was allowed and the findings of misconduct based on those charges were set aside.

The appellant was convicted of trafficking and possession for the purpose of trafficking in cocaine.

During the trial, hearsay evidence regarding the seizure of buy money from the appellant was admitted in anticipation of a Crown witness who was ultimately not called.

The trial judge refused a mistrial application and instructed the jury that there was no evidence of buy money being found on the appellant.

On appeal, the appellant argued a mistrial should have been declared and that the jury charge was inappropriate.

The Court of Appeal dismissed the appeal, finding no tactical prejudice and concluding that the jury charge adequately addressed the issue and was arguably generous to the appellant.

The appellant was convicted of trafficking in cocaine after an undercover police operation.

At trial, the appellant testified and admitted to a prior conviction for obstructing police, but the trial judge failed to instruct the jury on the limited use of this prior conviction.

On appeal, the Crown conceded the error but argued the curative proviso should apply.

The Court of Appeal agreed, finding no realistic possibility that the jury would misuse the single, unrelated prior conviction to infer the appellant was a bad person or likely to traffic cocaine.

The appeal was dismissed.

The appellant challenged his conviction and sentence, arguing that the trial judge erred in admitting weapon evidence following a search.

The court applied the Collins framework under s. 24(2) of the Charter and held that the trial judge did not err in her treatment of the second and third categories of factors.

Although the trial judge did not expressly address the degree of departure from reasonable and probable grounds, the court found any departure was not significant in light of officer safety concerns, limited opportunity for further investigation, and the matching informant description.

The finding of good faith was reasonably supported by the evidence, and the appeal was dismissed.