Robert P. Armstrong

The appellant was convicted of aggravated assault, assault with a weapon, weapons dangerous, and common assault following a bar room brawl where a victim was stabbed.

On appeal, the appellant argued the trial judge improperly shifted the burden of proof, the verdicts were unreasonable, and the rule against multiple convictions should apply.

The Court of Appeal dismissed the burden of proof and unreasonable verdict arguments but agreed that the Kienapple principle applied to the charges of aggravated assault and assault with a weapon, as they arose from the same delict.

The conviction for assault with a weapon was stayed, but the sentence appeal was dismissed as the original sentence remained fit.

The respondent borrower sued for the return of a $138,000 commitment fee after a commercial mortgage transaction failed to close.

The transaction failed because the borrower did not meet the required rental achievement figure due to deteriorating economic conditions.

The trial judge ordered the return of the fee, finding the borrower was not in 'default' because the failure was not its fault.

The Court of Appeal allowed the appeal and dismissed the action, holding that in a commercial contract, 'default' simply means failure to fulfill an obligation, regardless of fault.

The lender was entitled to retain the commitment fee.

The Crown appealed an order quashing an indictment for historical sexual offences.

The original information spanned a time frame when the respondent was between 12 and 20 years old.

The application judge quashed the indictment, holding that proceedings should have commenced in youth court.

The Court of Appeal allowed the appeal, finding that the indictment was not a nullity and could be amended under the Criminal Code to cover only the period after the respondent turned 16, as there was no prejudice to the respondent.

The appellant appealed an order dismissing his motion to set aside a default judgment of nearly $50,000.

The appellant argued he was under a disability when served with the statement of claim and that the default judgment should be set aside under Rule 19.08(2).

The Court of Appeal allowed the appeal, finding that while the appellant was not under a disability at the time he was noted in default, his medical condition provided a reasonable explanation for his failure to defend the action.

The default judgment was set aside to allow the appellant to present a triable defence on the merits.

The appellant was convicted of importing heroin after customs officers found over a kilogram of the drug in his shoes upon his return from Ghana.

On appeal, he argued the trial judge erred by allowing the Crown to introduce evidence of his receipt of Employment Insurance benefits to establish a financial motive, claiming it amounted to propensity reasoning based on poverty.

The Court of Appeal dismissed the conviction appeal, finding the financial evidence was properly admitted to show financial pressure rather than propensity, and that a flawed jury instruction on evaluating evidence did not mislead the jury.

However, the sentence appeal was allowed, as the trial judge erred in treating the appellant's role as a courier as an aggravating factor.

The sentence was reduced to seven years and three and one-half months.

The appellants were convicted of conspiracy related to the illegal entry of individuals into Canada.

They appealed their convictions, arguing that the trial judge erred in admitting intercepted communications obtained pursuant to Ontario wiretap authorizations that relied on evidence from a Quebec authorization.

The appellant Kullman also argued that the trial judge erred in admitting hearsay statements of his co-conspirator under the Carter approach, arguing it did not meet the necessity and reliability criteria established in Starr.

The Court of Appeal dismissed the appeals, finding no jurisdictional defects in the wiretap authorizations and holding that the traditional co-conspirators' exception to the hearsay rule survives the principled approach established in Starr.

The appellant husband appealed a trial judgment awarding the respondent wife $2,500 monthly in indeterminate compensatory spousal support, $35,000 in retroactive support, and child support based on a three-year income average.

The Court of Appeal dismissed the appeal, finding that the wife suffered permanent economic disadvantage by postponing her education to support the husband's university studies early in the marriage.

The Court held that the wife's current income did not negate her entitlement to long-term compensatory support to reflect the parties' former joint standard of living.

The appellant wife appealed an order regarding a default divorce judgment.

The Court of Appeal found the motions judge erred in concluding the appellant could seek originating corollary relief despite a final divorce judgment addressing those issues.

The Court applied the three-part test for setting aside the noting of pleadings closed, finding the motion was timely, the appellant had a persistent intention to defend, and there was merit to her claims.

The appeal was allowed, setting aside the noting of pleadings closed and specific paragraphs of the default divorce judgment.

The appellant appealed his conviction and sentence for extortion.

The Court of Appeal dismissed the conviction appeal, finding the evidence supported the trial judge's conclusion that the appellant assaulted and threatened the complainant to obtain money owed.

However, the Court allowed the sentence appeal, finding the original sentence of three years and four months disproportionate despite the appellant's prior extortion conviction.

The sentence was varied to two years.

The appellant appealed a trial judgment regarding a real estate commission split, arguing the trial judge erred by admitting oral evidence that altered a written termination agreement.

The Court of Appeal dismissed the appeal, finding the oral evidence was admissible to complete the non-exhaustive agreement and to establish the appellant's misrepresentation regarding the properties he was working on.

The court also dismissed the appeal regarding an alleged award to a non-party and upheld the trial judge's discretionary costs award.

The defendants appealed an order consolidating two proposed class actions and substituting a new representative plaintiff.

The Court of Appeal quashed the appeal, holding that the order was interlocutory because it did not dispose of any substantive rights between the parties.

As an interlocutory order, the appeal properly lies to the Divisional Court with leave, not to the Court of Appeal.

The appellant, who had been discharged from bankruptcy, was denied credit because the respondent credit reporting agencies allegedly included statute-barred debts in his credit report contrary to the Consumer Reporting Act.

The appellant brought a proposed class action in negligence.

The motion judge struck the claim, finding policy reasons against recognizing a duty of care.

The Court of Appeal allowed the appeal against the Canadian respondents, holding that a prima facie duty of care exists based on proximity and foreseeability, analogous to negligent misrepresentation, and that policy considerations do not make it plain and obvious that the claim should be struck at this stage.

The claims against the American parent companies were struck for failing to plead sufficient material facts.

The appellant moved for an adjournment of the hearing of the appeal after recently retaining new counsel.

The appeal was from an order refusing to set aside a previous order that struck out the appellants' statement of defence and counterclaim.

The Court of Appeal denied the adjournment and quashed the appeal, finding that the order appealed from was interlocutory, not final.

Therefore, the court lacked jurisdiction, as any appeal from the interlocutory order lies to the Divisional Court with leave.

The appellant sought leave to appeal his conviction for sexual assault.

He argued that the summary conviction appeal court judge erred in law by finding that the trial judge did not misapprehend the evidence and that the verdict was reasonable.

The Court of Appeal found that although the trial judge misapprehended a portion of the evidence regarding the complainant's continuous observation of the appellant, the verdict was reasonable based on the complainant's identification of the appellant through a combination of factors.

Leave to appeal was granted, but the appeal was dismissed.

The Crown sought leave to appeal a sentence imposed after guilty pleas to sexual assault and sexual exploitation involving prolonged sexual abuse of a child by a parent in the family home.

The Court of Appeal held that a conditional sentence was demonstrably unfit given the controlling principles of denunciation and specific and general deterrence, the vulnerability of the victim, the breach of trust, the repeated acts over an extended period, and the respondent's prior sexual assault record.

The court further found that the sentencing judge erred by failing to impose house arrest as a term of the conditional sentence.

Leave to appeal was granted and the sentence was increased to two years less a day imprisonment, with credit for the portion of the conditional sentence already served, while probation remained unchanged.

The appellant pleaded guilty to five counts of sexual assault with a weapon against his former spouse and was sentenced to 10 years' imprisonment, consecutive to a sentence he was already serving for a separate sexual assault.

On appeal, the appellant argued the trial judge erred in finding he was a sexual sadist based on expert testimony and that the sentence violated the totality principle.

The Court of Appeal dismissed the appeal, holding that the 10-year sentence was fit and appropriate given the brutal, protracted, and horrendous nature of the offences, regardless of the sexual sadism finding.

The appellant was convicted of driving with excess alcohol.

At trial, the judge disbelieved the appellant's evidence, finding it could not provide a foundation for 'evidence to the contrary', and drew an adverse inference from his failure to call a confirmatory witness.

The summary conviction appeal court dismissed the appeal.

The Court of Appeal granted leave but dismissed the appeal, agreeing that the trial judge's disbelief of the appellant's evidence was the primary basis for rejecting the defence, and the adverse inference was merely ancillary.

The appellant appealed his sentence of 18 months' imprisonment for possession of child pornography and a concurrent 6-month sentence for breach of probation.

He argued the trial judge misapprehended a joint submission, improperly punished him for past lenient sentences, and sought to introduce a psychiatric report as fresh evidence.

The Court of Appeal dismissed the appeal, finding no joint submission existed regarding the sentence range, the trial judge properly applied the jump principle for repeat offenders, and the proposed fresh evidence failed the Palmer test for admissibility.

Following the release of the main appeal decision, the court was asked to fix the costs of the six-day trial.

As the applicant's ultimate recovery was more favourable than the respondent's offer to settle, she was awarded party and party costs throughout.

The court fixed the trial costs at $30,000 all inclusive.

Following the release of reasons on October 19, 2002, the Court of Appeal received written submissions on costs.

The Court fixed the costs of the motions before the motions judge at $6,000 all inclusive, and the costs of both appeals at $6,500 all inclusive, payable to the appellants forthwith.