Richard Posner

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.

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 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 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.

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 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.