Robert F. Goldstein

The accused brought an application to stay robbery charges for alleged breach of s. 11(b) of the Charter, arguing that institutional and Crown delay, aggravated by disclosure failures, exceeded the applicable Morin guidelines.

The court accepted that disclosure was poorly handled and that the accused suffered real prejudice from lengthy pretrial custody, including segregation and administrative detention.

However, after allocating delay among intake, inherent case requirements, defence conduct, Crown conduct, and institutional limits, the court held that total Crown and institutional delay was about 9.6 months across both levels of court and therefore remained within the Morin guidelines.

Balancing all factors, the court found the overall delay reasonable and declined to stay the charge.

Sentencing decision for a first offender who pleaded guilty to possession of a loaded prohibited firearm after police observed him discard the handgun following a crash arising from street racing.

The court treated the public possession and abandonment of a loaded handgun near a roadway and sidewalk as a serious aggravating circumstance engaging denunciation, general deterrence, specific deterrence, and public protection.

While the offender's guilty plea, youth, lack of record, employment history, and community support were mitigating factors, the offence was placed near the true-crime end of the spectrum described in the firearm sentencing jurisprudence.

A penitentiary term of three years was imposed, with credit for pre-trial custody and restrictive house arrest, together with a DNA order and a 10-year weapons prohibition.

The offender pleaded guilty to an unprovoked assault causing bodily harm against a stranger while on parole for manslaughter.

The Crown sought a sentence of 3 years and a long-term offender designation.

The court sentenced the offender to 3.5 years (reduced to 6 months with enhanced pre-sentence credit) and 3 years of probation.

The court dismissed the long-term offender application, finding that while the offender posed a risk, the Crown failed to prove beyond a reasonable doubt that there was a substantial risk of violent reoffending as required by the legislation.

The Crown appealed a stay of proceedings granted by the trial judge on charges of impaired driving and 'over 80'.

The trial judge had found that the institutional delay of 11.5 months exceeded the Morin guidelines and breached the respondent's right to a trial within a reasonable time under s. 11(b) of the Charter.

On appeal, the Superior Court found that the trial judge erred by characterizing neutral delay as institutional, reducing the actual institutional delay to 9 months, which falls within the guidelines.

The court also found the trial judge erred by failing to balance society's interest in a trial on the merits against the right to a trial within a reasonable time.

The appeal was allowed and a new trial ordered.

The Crown appealed the respondent's acquittal on an over 80 charge.

The trial judge had acquitted the respondent after finding that the failure to conduct an annual inspection of the breathalyzer amounted to improper maintenance, raising a reasonable doubt about the reliability of the results.

On appeal, the Crown argued that a 2012 Alcohol Test Committee position paper constituted new evidence justifying revisiting the Supreme Court's decision in St. Onge Lamoureux.

The summary conviction appeal judge rejected this argument but found that the trial judge misapprehended the evidence by elevating a recommendation for yearly inspections into a rule without a direct link to a malfunction.

The appeal was allowed and a new trial ordered.

The appellant appealed his convictions for stunt driving and 'over 80'.

He argued that the trial judge erred in dismissing his Charter applications regarding the right to privacy (video surveillance in cells), right to counsel, right to know the reason for detention, and the validity of the roadside breath demand.

The Superior Court of Justice found that the trial judge erred in applying different privacy standards to men and women in cells, but correctly refused to order a stay of proceedings.

The court also found that the trial judge erred in finding a section 8 breach regarding the roadside demand, as the demanding officer was entitled to rely on the reasonable suspicion of another officer.

The court conducted its own section 24(2) analysis for a section 9 breach (failure to advise of reasons for detention) and concluded the breath samples should not be excluded.

The appeal was dismissed.

The appellant appealed a finding of Not Criminally Responsible (NCR) for assault causing bodily harm, arguing his trial counsel was ineffective for failing to explain the consequences of an NCR finding and that the trial judge erred by not conducting a plea inquiry.

The Superior Court of Justice found that while the trial judge erred in failing to conduct a plea inquiry for a proceeding that was the functional equivalent of a guilty plea, no miscarriage of justice occurred.

The court rejected the ineffective assistance of counsel claim, finding trial counsel had properly advised the appellant, and concluded there was ample psychiatric evidence to support the NCR finding.

The appeal was dismissed.

The appellant was convicted of failing to comply with a probation order by failing to report to his probation officer.

On appeal, the court found that the trial judge erred by convicting the appellant based on a failure to notify of a change of address, an offence with which he was not charged.

Furthermore, there was no admissible evidence that the appellant knew he was required to report upon his release from custody, as the evidence relied upon was hearsay.

The court also held that the trial judge did not err in admitting an exemplification of the probation order without notice, as it is admissible at common law.

The appeal was allowed and a new trial ordered.

On a summary conviction appeal from an assault causing bodily harm conviction arising from a nightclub incident, the appellant argued that the trial judge compromised trial fairness by independently downloading a Google Street View image and using it to reject the defence explanation for an injury.

The court held that while judges may take judicial notice of indisputable facts from reliable internet sources, they must not conduct their own investigation or rely on material not fairly put to the accused.

Because the image was not put to the appellant and was used to support an adverse credibility finding, a reasonable observer would conclude that the fairness of the trial was compromised.

The argument that the trial judge reversed the burden of proof was rejected when the reasons were read as a whole.

The appeal was allowed and a new trial was ordered.

On a summary conviction appeal from an assault conviction arising from a roadside altercation between a driver and a cyclist, the appellant argued that the trial judge misapplied the reasonable doubt framework and improperly intervened throughout the trial.

The appeal court held that the trial judge misstated and failed to apply the principles in W.D., disbelieved the accused without properly considering whether his evidence nonetheless raised a reasonable doubt, and impermissibly usurped the role of Crown counsel through repeated interventions.

The interventions included urging resolution after a not guilty plea, effectively conducting the complainant's examination-in-chief, and asking improper questions of the accused after cross-examination.

Because there was evidence on which a properly instructed judge could convict, the conviction was set aside and a new trial ordered.

On a summary conviction appeal from convictions for mischief under $5000 and breach of recognizance arising from a road-rage altercation, the appellant argued that the trial judge misapprehended the complainant's evidence concerning whether she had reviewed a prior written police statement.

The court held that the trial judge did not misapprehend the evidence, properly distinguished between the written statement and a later video statement, and remained alive to contradictions in the complainant's various accounts.

In any event, applying the governing test for misapprehension of evidence, any possible error was not central to the reasoning process and had no impact on the convictions.

The appeal was dismissed without calling on the Crown.

The accused was tried on charges arising from a residential break and enter proved entirely by circumstantial evidence.

The court held that the surveillance evidence, tracking data, association with co-actors, counter-surveillance driving, and video evidence placing the accused at the refuge location shortly after the offence established that he was the fourth participant in the Mazda used during the offence.

Applying the rule that guilt must be the only reasonable inference on circumstantial evidence, the court rejected alternative explanations.

The accused was found guilty of break, enter and theft, and of possession of property obtained by crime on a theory of joint possession.

The accused was tried for his alleged role as the second assailant in an armed robbery of a diamond importer following a failed fake bank draft scheme.

The court rejected defence evidence from criminally involved witnesses as contrived, treated the complainant's in-court and lineup identification with significant caution, and found that eyewitness evidence alone could not support conviction.

Applying the W.(D.) framework, Vetrovec caution, and the circumstantial evidence standard, the court relied on corroborated accomplice evidence, security footage, text messages, and cell tower location evidence.

The court concluded that the accused's participation in the robbery was the only reasonable inference and entered convictions on all counts.

Following a traffic stop for an illegal turn, police searched a vehicle and located a loaded prohibited firearm and 209 grams of marijuana inside a bag in the trunk admitted to belong to the accused.

The accused admitted the marijuana was his but denied knowledge of the firearm, suggesting another rear-seat passenger may have placed it in the bag through the back-seat access panel while police were stopping the car.

Applying the W.D. framework, the court rejected the accused's evidence as implausible and found it did not leave a reasonable doubt.

Applying the circumstantial evidence rule, the court held that guilt was the only reasonable inference and convicted on all counts except the proceeds of crime count, which the Crown asked to be dismissed.

The appellant appealed a conviction for uttering threats arising from a contentious child-transfer encounter between former partners governed by a custody order.

He argued that the trial judge reversed the burden of proof, failed to address inconsistencies in the complainant's evidence, made unsupported adverse credibility findings, and scrutinized his evidence more harshly than the complainant's.

The appeal court held that the trial judge properly applied the principles in W.D., gave adequate reasons for accepting the complainant's evidence and rejecting the appellant's evidence, and committed no reviewable credibility error.

The conviction appeal was dismissed.

On a summary conviction appeal from an over-80 conviction, the appellant argued the trial judge erred in assessing a bolus drinking defence where the breath samples were taken outside the two-hour window and the Crown relied on toxicological opinion evidence.

The court held that the trial judge improperly treated the appellant as bearing the burden of raising a reasonable doubt about an assumption underlying the expert opinion, rather than requiring the Crown to prove the factual foundation of that opinion beyond a reasonable doubt.

The court also found a central misapprehension of the evidence because the trial judge said there was no evidence of recent drinking despite accepting the appellant as credible.

The appeal was allowed and an acquittal entered.

The appellant appealed a conviction for impaired driving arising from erratic driving, speeding, the odour of alcohol, and physical signs of impairment observed during a traffic stop.

He argued that the trial judge failed to analyze the in-car video, failed to consider evidence consistent with sobriety, misapplied the governing impairment test, and returned an unreasonable verdict.

The appeal court held that the trial judge was not required to review every piece of evidence in detail, was entitled to rely on the officer's evidence, and correctly applied the requirement that any degree of impairment of the ability to drive is sufficient.

The findings of fact were supported by the record and attracted appellate deference.

The summary conviction appeal was dismissed.

The appellant challenged his impaired driving conviction on a summary conviction appeal, arguing that the trial judge erred in dismissing a Charter s. 10(b) application based on alleged language barriers that prevented meaningful understanding of the right to counsel.

The court held that the existence of special circumstances was a question of mixed fact and law, and found no palpable and overriding error in the trial judge’s findings that the appellant’s English was sufficient.

The court further held that even if a s. 10(b) breach had been established and the breath certificates excluded under s. 24(2), the conviction for impaired driving would still stand on the pre-detention observational evidence.

The appeal was dismissed.

Sentencing decision for a young offender who pleaded guilty to multiple firearm possession offences after being arrested on a TTC bus with a loaded prohibited handgun while subject to a lifetime weapons prohibition.

The defence argued the possession was fleeting and unintentional based on third-party evidence, but the court rejected that evidence as unreliable and found no such mitigating factor.

Emphasizing denunciation, public protection, and specific and general deterrence in the context of illegal handgun offences, while still accounting for youth, guilty plea, family support, and rehabilitative prospects, the court imposed a global sentence of 5.5 years less enhanced credit for pretrial custody.

Ancillary orders included a further lifetime weapons prohibition and a DNA order.

Following summary judgment determining that a franchisor’s 12‑month termination notice to a long‑time franchisee was inadequate, the court determined the appropriate reasonable notice period and resulting damages.

The court rejected arguments that the notice period should correspond to a proposed franchise renewal term or to employment-law notice ranges exceeding 20 months.

While acknowledging that franchise relationships share characteristics with employment relationships, the court emphasized that franchisees remain independent contractors and must bear business risk.

Considering the length of the relationship, the franchisee’s satisfactory performance, the absence of bad faith, and the independent contractor status, the court held that 18 months’ notice was reasonable.

Damages equal to six additional months of income were awarded.