Robert F. Goldstein

On a summary conviction appeal alleging ineffective assistance of counsel, new Crown counsel sought an adjournment in order to cross‑examine the appellant on his fresh evidence affidavit, reversing the position taken by prior Crown counsel who had indicated cross‑examination would not occur.

The appellant opposed the adjournment and argued that the Crown had given an undertaking not to cross‑examine, and that costs should be awarded if an adjournment were granted.

The court held that the earlier Crown communication did not amount to a solicitor’s undertaking and that prosecutors retain discretion to revisit tactical decisions unless doing so constitutes abuse of process or causes real prejudice.

The court further held that an adjournment did not create substantial prejudice and that the circumstances did not justify the rare remedy of costs against the Crown.

The adjournment was granted and costs were refused.

The accused sought a bail review after a justice of the peace ordered detention on the secondary and tertiary grounds in relation to multiple alleged sexual assaults and robberies against sex workers.

The applicant argued that the justice of the peace erred by undermining the presumption of innocence and misapplying the tertiary ground, and that new evidence regarding GPS or RF ankle monitoring constituted a material change in circumstances.

The court held that the justice of the peace properly applied the presumption of innocence and was entitled to comment on the strength of the Crown’s case.

Applying the principles from St-Cloud, the court found no error in the tertiary ground analysis and concluded that the proposed electronic monitoring did not constitute a material change affecting the detention decision.

The bail review was dismissed.

The offender, a 21-year-old first offender, was convicted of residential break and enter and possession of stolen property over $5000.

The Crown sought a custodial sentence of 6 to 9 months, while the defence sought a non-custodial sentence.

The court found that the offender suffered from severe mental health issues, including schizophrenia, which constituted exceptional circumstances justifying a departure from the usual range of a custodial sentence for residential break and enter.

The court suspended the passing of sentence and imposed three years of probation with strict conditions, prioritizing rehabilitation over general deterrence.

Following the dismissal of an application for leave to appeal from a decision of a professional regulator, the court determined the issue of costs.

The applicant had previously been declared a vexatious litigant and filed submissions that did not address the costs issue and failed to comply with the court’s directions.

Applying the principle that costs should be fair and reasonable in the circumstances, the court found the regulator’s request for $3,500 to be reasonable and significantly less than the actual costs incurred.

The court awarded the requested amount of costs to the regulator.

The applicant sought certiorari to quash a preliminary inquiry committal for trial on firearms offences, arguing the preliminary inquiry judge exceeded jurisdiction by finding evidence of knowledge and control.

The underlying evidence included a submachine gun and ammunition concealed in a barrel in a bedroom, along with documents bearing the accused’s name and the address of the residence.

The preliminary inquiry judge discharged the accused on a drug trafficking charge but committed him on the firearms offences.

The reviewing court held that the preliminary inquiry judge properly applied the limited weighing approach required for circumstantial cases and correctly assessed whether the evidence was capable of supporting the Crown’s inferences.

There was some evidence linking the accused to the bedroom and residence sufficient to support an inference of knowledge and control.

The certiorari application was therefore dismissed.

The accused applied on the trial date for an adjournment of a fraud over $5,000 trial, alleging outstanding disclosure from a third‑party employer and the absence of a material witness.

The court reviewed the governing principles for adjournments from Darville v. The Queen and the procedural requirements under the Criminal Proceedings Rules.

The court found no evidence that relevant disclosure remained outstanding, noting the materials were third‑party records already provided by the Crown where available and that the defence had earlier confirmed trial readiness.

The defence also failed to establish that the absent witness was material or that the witness could be secured at a later date.

The application was unsupported by the required notice and affidavit materials.

The court held the defence failed to meet the burden for an adjournment and dismissed the application.

The accused applied for a Rowbotham order seeking state-funded counsel after Legal Aid refused to approve a change of solicitor following a breakdown in the solicitor-client relationship shortly before trial.

The court considered whether the accused had been denied Legal Aid through his own conduct, whether he had exhausted available means to retain private counsel, and whether counsel was necessary for a fair trial.

The court found the accused had limited financial means, had attempted to retain counsel, and was not solely responsible for the breakdown with prior counsel.

Given the seriousness of the drug trafficking charges, the likelihood of imprisonment upon conviction, and the legal and evidentiary complexity including Charter issues and a jury trial, representation by counsel was necessary.

A conditional stay of proceedings was therefore granted until state-funded counsel is provided.

The accused pleaded guilty to assault causing bodily harm and raised a constitutional challenge during sentencing concerning the denial of enhanced credit for pre‑sentence custody where bail had been cancelled under s. 719(3.1) of the Criminal Code.

The court considered whether the statutory limitation violated s. 7 of the Charter by infringing the principle of proportionality in sentencing.

Relying on appellate authority recognizing proportionality as a principle of fundamental justice, the court found that the provision could produce disparate custodial outcomes unrelated to the gravity of the offence or the offender’s responsibility, particularly where detention depended on the ability to obtain bail.

The court held that the deprivation of liberty was not in accordance with fundamental justice and that the provision was arbitrary and not minimally impairing.

The infringement could not be justified under s. 1 of the Charter.

The accused was charged with sexual assault, assault, and robbery arising from an incident with the complainant following the accused’s release from custody.

The complainant alleged that the accused assaulted and sexually assaulted her after she visited his apartment, while the accused testified that the sexual activity was consensual and that the dispute related to drugs and money.

Applying the credibility framework in R. v. W.(D.), the court found both the complainant and the accused to be unreliable witnesses.

Elements of the accused’s account were considered plausible and left the court with a reasonable doubt.

In light of inconsistencies in the complainant’s evidence and inconclusive corroborative evidence, the Crown failed to prove the offences beyond a reasonable doubt.

A vexatious litigant sought leave under s. 140 of the Courts of Justice Act to commence an appeal to the Divisional Court from a decision of the Executive Committee of a professional regulatory college refusing to reinstate his licence.

The court held that no statutory right of appeal exists from such a decision under the governing legislation, rendering the proposed proceeding an abuse of process.

The applicant’s extensive history of abusive litigation conduct, unpaid costs orders, and misleading statements to courts was also considered in assessing whether leave should be granted.

The court found there were no reasonable grounds for the proposed proceeding and that allowing it would be contrary to the interests of justice.

Leave to commence the proceeding was refused and further filing restrictions in the Toronto Region were imposed.

Following dismissal of the plaintiff’s action and the unsuccessful appeal, the self-represented defendant sought costs totaling $12,093.30.

The court considered the governing principles for awarding costs to self-represented litigants, including the requirement that the litigant demonstrate time spent performing work ordinarily done by a lawyer and that the time represented an opportunity cost in lost income.

Applying the principles from Fong v. Chan and Mustang Investigations v. Ironside, the court allowed compensation for certain legal preparation activities but excluded time for travel and general attendance.

The court emphasized that costs principles apply equally to self-represented parties and that successful litigants may receive indemnification where opportunity cost is proven.

A reduced amount representing lost income and disbursements was awarded.

The sureties argued that the court lacked jurisdiction to proceed with a bail forfeiture hearing because the certificate of default was improperly completed under s. 770(1) of the Criminal Code.

The court rejected the argument, holding that strict formal compliance with Form 33 is not required where the certificate adequately signals the default and the surrounding record clarifies the circumstances.

The certificate may be amplified by transcripts and other evidence at the forfeiture hearing.

The purpose of the document is to alert the sureties to the alleged default and trigger the hearing process, not to function as a fully particularized pleading.

Clerical imperfections in completing the certificate do not deprive the court of jurisdiction.

The offender was convicted by a jury of robbery arising from a violent street attack against a stranger in which the victim was punched and robbed of personal property.

The court considered aggravating factors including the random and brutal nature of the assault and the lasting psychological harm to the victim.

Mitigating factors included the offender’s status as a first offender, Indigenous background considered under s. 718.2(e) of the Criminal Code, and personal rehabilitation efforts.

Applying the principles from Gladue and Ipeelee, the court imposed a custodial sentence at the low end of the range and credited the offender for pre‑sentence custody and lengthy strict house arrest.

After credit, the remaining custodial term was ordered to be served intermittently with a probation order and ancillary orders.

Following an unsuccessful motion for summary judgment in an employment-related constructive dismissal action, the court addressed costs.

The plaintiff, a self‑represented security guard, acknowledged responsibility for costs but submitted he could only pay approximately $2,000.

The defendants sought $4,361.40 in partial indemnity costs.

Applying the principle that costs must be fair and reasonable in the circumstances, the court held that the amount claimed was within the legitimate expectations of the parties and reasonable for the motion.

The court ordered the plaintiff to pay $4,000 in costs jointly to the defendants.

The accused applied on a bail review to remove a no-contact condition with the complainant spouse following allegations of domestic assault.

The complainant expressed a desire to reconcile and resume cohabitation, and both parties had begun counselling.

The court considered the risk of interference with the administration of justice and the need to protect the complainant under s. 515 of the Criminal Code.

While the court found no evidence of manipulation or interference with witnesses, it remained concerned about potential safety risks given the seriousness of the alleged assault.

The court declined to fully remove the no-contact condition but permitted contact during joint counselling sessions as a risk‑management measure.

The Crown appealed a summary conviction acquittal for the offence of operating a motor vehicle with a blood alcohol concentration exceeding the legal limit.

The trial judge excluded evidence of a roadside field sobriety test on the basis that the police officer had not been qualified as an expert witness.

The appeal court held that this was an error of law because the Criminal Code regulatory scheme does not require officers administering field sobriety tests to be qualified as experts under the Mohan framework.

The court emphasized that such tests are investigative tools used to establish reasonable grounds for a breath demand and are not admissible to prove guilt.

The appeal was allowed and a new trial ordered.

During a criminal prosecution for an armed armoured truck robbery, the Crown sought to introduce a videotaped confession made by the accused during a police interview.

The accused argued the statement was involuntary and obtained in violation of Charter rights, including the right to counsel under s. 10(b).

The court found that an unrecorded pre‑interview confrontation with police evidence created an atmosphere of oppression that induced the confession, rendering it involuntary under the confessions rule.

Although the court rejected allegations of physical assault and found no breach of the right to counsel of choice, the Crown failed to prove voluntariness beyond a reasonable doubt.

The statement was excluded from evidence, likely resulting in an acquittal.

The accused was charged with sexual assault arising from a photography session with an 18‑year‑old aspiring model whom he had met on a social networking application.

The complainant alleged that after the photo session the accused initiated unwanted sexual contact and forcibly had intercourse despite her resistance and repeated requests to stop.

The accused denied that any sexual activity occurred and claimed the complainant attempted to kiss him and became angry when he rejected her.

Applying the credibility framework from R. v. W.(D.), the court rejected the accused’s evidence as implausible and accepted the complainant’s testimony as credible and reliable, noting her contemporaneous email to police reporting the assault.

The court concluded that the complainant did not consent and that the Crown proved the offence beyond a reasonable doubt.

The accused was charged with robbery, wearing a disguise, carrying a concealed weapon, and breaching probation after a man pulled a knife on three women at a bus stop and demanded their purses.

The central issue at trial was identification.

The court relied on eyewitness testimony from a victim who recognized the accused as a tenant in her building, corroborated by security camera footage and items seized from the accused's apartment.

The court found the accused guilty on all counts.

In this impaired driving jury trial, the court determined whether the accused's bolus drinking theory had an air of reality sufficient to be left with the jury.

Both Crown and defence toxicologists agreed on the blood alcohol calculations and on the quantity and timing of alcohol that would have been required for the theory to operate.

Even taking the accused's and supporting witness's evidence at its highest, the factual record could not support the necessary recent consumption.

The court held that leaving bolus drinking with the jury would be confusing and unsupported by the evidence, and instructed the jury not to consider it if they accepted the toxicology evidence.