Robert W. Hubbard

Zachary Barton was convicted by a jury of firearms-related offences.

Police found a semi-automatic handgun during a warrantless search in a common hallway planter, and later ammunition and a bullet-proof vest during a warranted search of his apartment.

The appellant argued that the trial judge erred in concluding the handgun was not obtained in a manner that infringed his Charter rights.

The Court of Appeal agreed, finding the handgun was unconstitutionally obtained due to its causal, contextual, and temporal links to the unlawful police conduct.

As the trial judge had not fully determined the validity of the search warrant after excising the unconstitutionally obtained evidence, the Court of Appeal set aside the convictions and ordered a new trial on all charges.

The Crown applied for an order to retain seized material for an additional year in a complex criminal investigation involving Fortress Real Capital Inc. and related entities.

The investigation, initiated in 2018, concerned allegations of investor fraud through misrepresentation of property values and investment eligibility.

The court granted the application, finding the investigation to be complex due to the large volume of electronic and hard copy material, the need for professional assistance (computer experts, accountants), and significant delays caused by extensive solicitor-client privilege claims over seized documents.

The court emphasized that while asserting privilege is legitimate, it contributed to the complexity and delay, justifying further detention of the material until June 22, 2021.

The Crown sought to introduce historical text messages sent by the accused to his wife, which were obtained by police pursuant to a valid general warrant.

The accused sought to exclude the messages on the basis of spousal privilege under s. 4(3) of the Canada Evidence Act and s. 189(6) of the Criminal Code.

The court dismissed the application, holding that spousal privilege is a testimonial privilege that protects a spouse from being compelled to testify, but does not render the communications themselves inadmissible when independently and lawfully obtained by police.

The Canadian Broadcasting Corporation (CBC) sought to unseal the remaining redacted portions (approximately 25%) of an Information to Obtain (ITO) a search warrant related to an RCMP investigation into alleged investor fraud by Fortress Real Capital Inc. and associated entities.

The Crown resisted, arguing that further disclosure would compromise the ongoing investigation and prejudice innocent third parties.

The court, applying the Dagenais/Mentuck test, found that the Crown had justified the redactions, citing a serious and specific risk to the integrity of the investigation due to undisclosed law enforcement techniques and the potential for specific financial harm to an innocent person.

The court also noted the ongoing nature of the investigation and the large volume of unanalyzed seized material as factors supporting continued redaction of other third parties' identities.

The application for further unsealing was dismissed.

The appellant was convicted of offences arising from a home invasion robbery in Leamington, Ontario.

He appealed his convictions on two grounds: (1) that text messages obtained from the service provider should have been excluded as obtained in violation of his Charter rights, and (2) that the trial judge erred in accepting certain incriminating parts of a witness's testimony despite finding the witness to be fundamentally dishonest.

The Court of Appeal dismissed the appeal, finding that while Charter breaches occurred, the text messages were admissible under section 24(2) of the Charter, and the trial judge's treatment of the witness's evidence was neither illogical nor inconsistent.

Three appellants were convicted of first degree murder, attempted murder, and committing those offences for the benefit of a criminal organization arising from a drive-by shooting in Toronto.

The Crown's case relied heavily on testimony from two gang members who testified the appellants confessed to the shooting.

The appellants challenged numerous aspects of the trial including jury selection procedures, joinder of counts, admission of bad character evidence, ballistics evidence, jury instructions on Vetrovec witnesses, and alleged Charter violations.

The Court of Appeal dismissed the appeals of Atkins and Riley but allowed Wisdom's appeal, finding the trial judge erred in admitting evidence of an attempted theft four months after the shooting, which had minimal probative value but significant prejudicial effect.

The appellant was convicted of 40 counts including drug trafficking, criminal organization offences, weapons offences, proceeds of crime, extortion, and criminal interest rate offences.

He was sentenced to 19 years imprisonment with a 9.5-year parole ineligibility period.

On appeal, the Court of Appeal upheld most convictions but allowed the appeal in part.

The court found no Charter violations regarding search and seizure or trial delay.

However, the court quashed convictions for entering into criminal interest rate agreements, finding the trial judge erred in applying a presumption of knowledge without requiring proof of mens rea.

The court also reduced the sentence from 19 to 15 years and set aside the parole ineligibility order except for criminal organization convictions.

The appellant appealed his convictions and sentence relating to possession of a restricted firearm.

The Court of Appeal dismissed the unreasonable verdict ground, finding sufficient circumstantial evidence of possession.

However, the court allowed the appeal on count four (possession of a firearm obtained by crime), finding the trial judge incorrectly answered a jury question by stating that acquiring a firearm without a licence constitutes obtaining it by crime.

An acquittal was entered on count four.

The court declined to reduce the global sentence based on the acquittal but increased the pre-sentence custody credit by two months, finding the trial judge misunderstood the concept of earned remission in the federal system.

The United States sought the extradition of the appellant for child luring based on internet communications traced to an IP address.

The extradition judge committed the appellant for extradition after inferring that the appellant was the user of the IP address at the relevant time because he was the subscriber.

The Court of Appeal held that this inference was unreasonable without further evidence linking the subscriber to the actual use of the device at the time of the offence, and quashed the committal order.

The Court also dismissed a constitutional challenge to the ex parte gathering and sending provisions of the Mutual Legal Assistance in Criminal Matters Act, finding they contained adequate safeguards to satisfy procedural fairness under the Charter.

The Crown appealed a judicial stay of proceedings granted at its own request during a pre-trial abuse of process motion.

The stay was requested after the motion judge ordered the production of communications between police investigators and Crown counsel, over which the Crown asserted solicitor-client privilege.

The Court of Appeal held that the Crown's appeal was not an abuse of process and that the motion judge correctly found no waiver of privilege by the police.

However, the Court concluded that the motion judge's disclosure order was premature, as solicitor-client privilege should only be abrogated as a last resort if a stay could not be granted without the privileged information.

The appeal was allowed and the matter remitted to the trial court.

The applicant sought leave to appeal an order dismissing his application to re-open a sending order made under the Mutual Legal Assistance in Criminal Matters Act (MLACMA).

The application judge had treated the application as a Wilson application and dismissed it, finding no material non-disclosure in the original ex parte proceedings.

The Court of Appeal held that it had no jurisdiction under s. 35 of the MLACMA to hear an appeal from a Wilson order, as such an order is made pursuant to the court's inherent jurisdiction, not under the Act.

The application for leave to appeal was dismissed.

The applicant sought to re-open ex parte proceedings under the Mutual Legal Assistance in Criminal Matters Act (MLACMA) that resulted in Gathering and Sending Orders.

The applicant alleged material non-disclosure by the Attorney General regarding the legality of search warrants, the need for disclosure in extradition proceedings, warrantless seizure of subscriber information, and the authority to detain seized items.

The court found no material non-disclosure that would have altered the outcome or justified granting the applicant notice and standing at the MLACMA hearings.

The application to re-open was dismissed.

The appellant appealed his conviction and sentence.

The Court of Appeal dismissed the conviction appeal, finding the trial judge properly assessed the eye-witness identification evidence.

However, the Court allowed the sentence appeal, holding that the trial judge erred in principle by finding the appellant was a danger to the community, as the record showed he had been rehabilitated in the four years since the offence.

Given the appellant's six years on bail without incident and the time already served, the sentence was reduced to time served plus 18 months' probation.

The appellant was convicted of sexually assaulting his wife.

At trial, both parties testified to engaging in dominant/submissive sexual role playing, but gave conflicting accounts of the night in question.

The trial judge convicted the appellant, finding the complainant more credible.

On appeal, the Court of Appeal found that the trial judge erred by approaching the case as a credibility contest, making key findings of fact on a balance of probabilities, and failing to consider whether the evidence as a whole raised a reasonable doubt regarding the appellant's honest but mistaken belief in consent.

The appeal was allowed and a new trial ordered.

The appellant appealed his conviction following a guilty plea in the Ontario Court of Justice.

The Crown had elected to proceed by indictment on hybrid offences, and the appellant elected to be tried in the Ontario Court.

The Court of Appeal found no basis to interfere with the convictions, noting the appellant had already served his sentence.

The three accused, former senior executives of Nortel Networks Corporation, were charged with two counts of fraud over $5,000.

The Crown alleged that they deliberately misrepresented Nortel's financial results by manipulating accrued liability balances to meet earnings targets and trigger bonus payments.

The court conducted a detailed review of Nortel's accounting practices, the use of accrued liabilities, and the restatements of its financial results.

The court found that the Crown failed to prove beyond a reasonable doubt that the accused deliberately misrepresented the financial results or that the financial statements were materially misstated.

The accused were found not guilty on both counts.

The accused brought a pre‑trial motion seeking particulars requiring the Crown to specify the alleged misrepresentations, fraudulent conduct, and false accounting entries underlying charges relating to financial reporting of a public corporation.

The motion relied on s. 587 of the Criminal Code, arguing that the indictment lacked sufficient detail for the preparation of a defence.

The court reviewed the extensive investigations, disclosure, and related regulatory proceedings already known to the accused and concluded that they were aware of the case they had to meet.

The court held that the areas of dispute were sufficiently delineated and that further particulars were unnecessary for trial fairness or evidentiary rulings.

The application for particulars was dismissed.

The appellant, a police informer, had their identity and confidential information inadvertently recorded during a police interview.

The police and Crown failed to verify the appellant's informer status or redact the transcript, resulting in the full interview being disclosed to defence counsel in another case.

The appellant suffered retribution in custody.

The trial judge dismissed the appellant's application for a stay of proceedings.

On appeal, the Court of Appeal found the conduct of the police and Crown amounted to gross negligence and breached the absolute class privilege of informers.

The appeal was allowed and a stay of proceedings was entered.

The appellant appealed his conviction for fraud on the public, arguing the trial judge provided inadequate reasons, failed to instruct herself on the dangers of unconfirmed evidence, and rendered inconsistent verdicts.

The Court of Appeal dismissed the appeal, finding the trial judge's decision rested on independent evidence establishing the appellant's intent to defraud by inflating revenue figures.

The court also found the verdicts were not inconsistent, as the fraudulent intent was formed after the loans were made but before the public relied on the false financial statements.

The Crown's appeal of the acquittals was dismissed as abandoned.

The appellants, a newspaper and its journalists, received an allegedly forged document from a confidential source implicating the Prime Minister in a conflict of interest.

The police obtained a search warrant and assistance order to seize the document and its envelope to identify the source through forensic testing.

The appellants challenged the warrant, claiming a constitutional or common law journalist-source privilege.

The Supreme Court of Canada held that while s. 2(b) of the Charter does not provide a blanket constitutional immunity for journalists, a case-by-case privilege may be established using the Wigmore criteria.

On the facts, the public interest in investigating the serious crime of forgery outweighed the public interest in protecting the confidential source.

The search warrant and assistance order were upheld as reasonable under s. 8 of the Charter.