Samuel G. Walker

The Court of Appeal for Ontario dismissed the Crown’s appeal from a stay of proceedings entered after a trial judge found that correctional officers, including Officer Warburton, used excessive force and then colluded to cover up the incident by filing false reports and giving misleading testimony.

The trial judge found a violation of the respondent’s Charter rights and determined that a stay was the only appropriate remedy to protect the integrity of the justice system.

The appellate court held that the trial judge’s findings were supported by the evidence, her legal analysis was correct, and her remedy was justified in the circumstances.

The appellant, convicted of break and enter, theft, and weapons offences, appealed the conviction, arguing the trial judge erred in dismissing his application for a stay of proceedings based on alleged excessive force by the arresting officer.

The appellant claimed misapprehension of evidence regarding the "one plus one policy" and his "want to die" statement.

The Court of Appeal dismissed the appeal, finding no error in the trial judge's conclusions on reasonable force, stating the "one plus one policy" was not misused and the appellant's statement did not alter the emergency situation.

The court affirmed the appellant failed to prove the force used was unreasonable.

The defendant, Robert Konashewych, brought a Charter application alleging breaches of his s. 7 rights (solicitor-client privilege) and s. 8 rights (unreasonable search and seizure) by police.

The alleged breaches arose from police taking possession of a presumptively privileged letter and other documents provided by his former spouse.

The court found a s. 7 breach due to police inaction regarding the privileged document but determined it did not warrant a stay of proceedings under s. 24(1) as the consequences were minor and did not impact trial fairness.

The court also found no s. 8 breach, as the documents were voluntarily provided by a private citizen, not obtained through state search or seizure.

The application for a stay was dismissed, but the privileged letter was ruled inadmissible unless privilege was waived.

The defence sought to exclude specific evidence related to the accused's infidelity and attempts to conceal it, arguing its prejudicial impact outweighed its probative value in a circumstantial evidence case involving alleged will forgery.

The Crown contended this evidence was crucial to demonstrate the accused's motive and actions to prevent discovery of the alleged fraud.

The court dismissed the defence's application, finding the evidence highly relevant to the Crown's theory and that any prejudicial effect could be adequately mitigated by proper jury instructions.

The appellant was convicted of manslaughter as a party to a common unlawful purpose under s. 21(2) of the Criminal Code, arising from a failed robbery attempt of an illegal gambling club where a co-perpetrator shot and killed one of the owners.

The appellant appealed his conviction, arguing that the trial judge erred in extending party liability, particularly given the shooter's possible motive of frustration or anger.

The Court of Appeal dismissed the appeal, affirming that the shooting was a reasonably foreseeable consequence of carrying out the common unlawful purpose, and that the specific mode or motive of harm does not negate foreseeability under s. 21(2).

The applicant, I.S., convicted of various sexual offences and uttering threats, applied for bail pending appeal.

The Crown opposed the application, arguing the appeal was frivolous and that detention was necessary in the public interest due to the seriousness of the offences and residual public safety concerns.

The court, applying the criteria under s. 679(3) of the Criminal Code, found that the appeal was not frivolous, meeting the "very low bar" established by R. v. Oland.

Despite the serious nature of the offences, the court determined that public safety and flight concerns were negligible, and the public interest in reviewability outweighed the interest in enforceability.

The application for bail pending appeal was granted.

The appellant was convicted of dangerous driving and aggravated assault and appealed both conviction and sentence.

The Court of Appeal dismissed the conviction appeal and the sentence appeal for dangerous driving.

However, the sentence imposed for aggravated assault was found to be unlawful due to a postponed commencement of the jail term.

The court allowed the sentence appeal for aggravated assault, varying it to a suspended sentence, considering the appellant's positive contributions, employment, and successful completion of a prior conditional sentence and probation.

The appellant, M.F., appealed his convictions for three counts of sexual assault and sought leave to appeal his seven-and-a-half-year sentence.

The conviction appeal argued that the trial judge erred in failing to properly consider evidence of the appellant's physical incapacity (shoulder injury and erectile dysfunction).

The sentence appeal argued errors in imposing escalating consecutive sentences and insufficient consideration of the appellant's age as a mitigating factor.

The Court of Appeal dismissed the conviction appeal, finding no misapprehension of evidence or insufficient reasons by the trial judge.

While granting leave to appeal sentence, the Court dismissed the sentence appeal, finding the total sentence fit despite an error in escalating individual sentences, given the serious nature of the assaults and the complainant's vulnerability.

The appellant, a traditional Chinese medicine practitioner, appealed his sexual assault conviction.

The appeal centered on whether the trial judge erred by introducing a new theory of liability (removal of a towel exposing genitals) late in the trial, which differed from the Crown's primary theory (vaginal examination).

The Court of Appeal found that the trial judge's introduction of this new theory, and subsequent conviction based on it, was unfair to the appellant as it constituted a drastic change made too suddenly and too late, prejudicing the defence.

The court held that while judges are not confined to parties' theories, trial fairness considerations may preclude new bases of liability inconsistent with how the case was litigated.

The appeal was allowed, the conviction quashed, and a new trial ordered.

The appellant, Kimani Phillips, appealed his convictions for two firearms-related charges.

The appeal raised three grounds: the trial judge's alleged failure to adequately address Constable Brunato's evidence, a misapprehension of evidence regarding the bedroom temperature, and an improper reference to a witness's knowledge of Charter s. 13 rights.

The Court of Appeal found no misapprehension of evidence concerning Constable Brunato or the temperature.

While the trial judge erred in using the witness's (Kia Sampson's) knowledge of s. 13 rights to buttress her credibility regarding her denial of throwing the gun, the error was deemed harmless.

The court reasoned that Kia's denial, which implicated the appellant, was credible due to her strong disposition to favour the appellant, making any evidence against him reliable.

The appeal was dismissed.

The appellant was convicted of assault against his wife, A.B., based on her testimony corroborated by date-stamped photographs, despite the trial judge having reasonable doubt on related firearm charges due to credibility concerns with the complainant and another witness.

The appellant appealed his conviction, arguing the verdict was unreasonable and the trial judge's reasons were insufficient, claiming an illogical result from incompatible findings.

The Court of Appeal dismissed the conviction appeal, finding that while the trial judge's reasons could have been clearer in explaining the differing credibility findings across distinct charges, it was permissible for the judge to accept parts of a witness's testimony when supported by other evidence.

The court affirmed that the verdict was not unreasonable under the Beaudry/Sinclair test, as the findings were distinct and supported by the evidence.

The sentence appeal was abandoned.

The appellant, George Olivetti, appealed a four-year sentence for possessing and accessing child pornography, which was imposed following a joint submission.

The appeal court found the original sentence to be fit, considering the large collection of child pornography and a prior criminal record for similar offences, despite the appellant's age, guilty plea, and expressed remorse.

The court dismissed the appeal, stating that updated personal and medical information did not justify a reduction and that such issues are best addressed by the Parole Board of Canada.

The appellant, found not criminally responsible, appealed a detention order issued by the Ontario Review Board (ORB).

The ORB's decision was based on the appellant's diagnosis of bipolar disorder with psychotic features, ADHD, and substance abuse disorder, which led to the index offences and posed a significant risk to public safety due to lack of insight and medication non-compliance.

The Court of Appeal dismissed the appeal, affirming that the ORB properly determined a detention order was the necessary and appropriate disposition, as a conditional discharge lacked an air of reality given the conceded significant risk and the appellant's condition.

The accused was charged with impaired driving, driving over 80 milligrams of alcohol per 100 millilitres of blood, and driving while suspended.

The defence brought a Charter application seeking exclusion of breath test results, alleging violations of sections 8, 9, and 10(b) of the Charter.

The court found that the officer had reasonable and probable grounds to stop the vehicle and make the breath demand, that the detention was not arbitrary, and that while the right to counsel issue was potentially troubling, the accused failed to exercise appropriate diligence in communicating his preference for his own counsel.

The court found the accused guilty on all counts.

The appellant was convicted of drug trafficking following a search of his residence conducted pursuant to a warrant issued under the Controlled Drugs and Substances Act.

The warrant did not specify a date for execution but authorized entry "at any time." The appellant appealed, arguing the warrant was invalid because it failed to specify an execution date, rendering the search a violation of Charter rights against unreasonable search and seizure.

The Court of Appeal upheld the conviction, finding that while the warrant did not expressly state an execution date, an execution date could be implied from the date of issuance.

The court rejected the appellant's characterization of the warrant as expressly non-expiring and held that the absence of an express date was a technical fault that did not invalidate the warrant.

The appellants challenged the Ontario Securities Commission's decision to constitute a different panel for the sanctions hearing than the panel that presided over the merits hearing.

The merits panel found that the appellants had sold securities without being registered as dealers and traded securities without a prospectus.

After the original commissioners' terms expired, a new panel was appointed to conduct the sanctions hearing.

The appellants argued this violated the Statutory Powers Procedures Act and principles of procedural fairness.

The Divisional Court split on the issue but ultimately dismissed the appeal, finding the Commission's interpretation reasonable.

The Court of Appeal affirmed, holding that both interpretations were reasonable and that the Commission's approach did not violate procedural fairness or natural justice.

The Crown sought to quash the preliminary inquiry judge's decision to discharge the respondent, Justin Allison, on firearms and drug charges via a certiorari application.

The police found a loaded firearm, drugs, and Allison's identification in an apartment he was seen entering with a key.

The preliminary inquiry judge found the evidence of Allison's knowledge and control over the contraband to be speculative.

The Superior Court, reviewing for jurisdictional error, affirmed the preliminary inquiry judge's decision, emphasizing the limited scope of review and that occupancy alone is insufficient to establish knowledge.

The application was dismissed.

The accused was charged with five sexual assault offences involving three separate complainants, with allegations spanning from 2002 to 2003.

The trial proceeded on the basis of the complainants' evidence alone, with no corroborating evidence.

The court found that each complainant engaged in significant inconsistencies between their media interviews, police statements, and trial testimony.

Each complainant also deliberately withheld material information from police and Crown counsel, including post-assault contact with the accused that contradicted their claims of trauma and fear.

The court concluded that the complainants' credibility and reliability were severely compromised by their deceptive conduct, late disclosures, and contradictory evidence.

The court found that the evidence failed to meet the standard of proof beyond a reasonable doubt and acquitted the accused on all charges.

The appellant appealed a conviction for operating a motor vehicle with a blood-alcohol concentration exceeding the legal limit following a summary conviction trial.

The sole ground of appeal alleged ineffective assistance of counsel on the basis that trial counsel decided the accused would not testify without advising that the decision ultimately belonged to the accused.

Fresh evidence on appeal demonstrated that counsel made the decision unilaterally and never discussed the option of testifying with the accused.

The court held that the right to decide whether to testify is a fundamental component of an accused’s control over their defence and counsel’s conduct constituted professional incompetence resulting in procedural unfairness.

Because the accused established that he would have testified had the decision been left to him, a miscarriage of justice occurred.