Scott K. Fenton

The applicant, Kevin Wallace, charged under the Corruption of Foreign Public Officials Act, sought leave to cross-examine the affiant of an Information to Obtain (ITO) used to secure an authorization for private communications interception.

This application was part of a Garofoli challenge to the authorization.

The court granted leave to cross-examine on two specific areas: alleged misrepresentations and omissions regarding tipsters #1 and #4, and the asserted involvement of the applicant in a meeting in Dubai, particularly concerning conflicting travel information.

Leave was denied for questions regarding independent investigation/corroboration of tipster information and investigative necessity, as sufficient information was already available or cross-examination would not materially assist.

The applicant sought declarations that s. 507.1 of the Criminal Code and s. 11(d) of the Crown Attorney’s Act were unconstitutional, and to set aside the Attorney General's intervention and withdrawal of a private prosecution.

The court dismissed the application, finding that the issues raised had already been judicially determined in prior proceedings (a recusal application and an extension of time to appeal), and therefore the doctrine of issue estoppel applied.

Costs were awarded against the applicant.

The applicant sought prerogative relief challenging the Attorney General’s decision to intervene in and assume carriage of a private prosecution against a police officer for alleged assault during an arrest.

The applicant alleged bias and abuse of process, arguing that Crown counsel’s handling of prior charges against him and the disclosure of a police video demonstrated partiality.

The court held that the Attorney General has authority to intervene in private prosecutions and that such prosecutorial decisions fall within core Crown discretion, subject to review only for abuse of process.

The evidence relied on by the applicant was largely hearsay and insufficient to establish a reasonable apprehension of bias or abuse of process.

The court found no improper conduct in the Crown’s disclosure practices or earlier settlement discussions.

Following a judge-alone criminal trial arising from sexual touching of a child in a hotel room, the sole issue was whether the accused was not criminally responsible on account of mental disorder.

The court accepted expert psychiatric evidence that the accused suffered from a non-rapid eye movement sleep arousal disorder with sleep-related sexual behaviour, and found that his conduct occurred in a state of automatism rather than conscious, voluntary action.

Applying the mental disorder and automatism jurisprudence under s. 16 of the Criminal Code, the court held the defence proved on a balance of probabilities that the accused was incapable of appreciating the nature of his act or knowing it was wrong.

An NCR verdict was entered on the sexual assault count, disposition was referred to the Ontario Review Board, the sexual interference count was conditionally stayed, a SOIRA order was made, and a DNA order was refused.

Accused charged with bribery of foreign public officials sought production of investigative records from the World Bank’s Integrity Vice Presidency in support of a Garofoli challenge to wiretap authorizations.

The World Bank asserted immunity as an international organization and refused to produce additional materials.

The court held that by initiating and actively assisting the Canadian criminal investigation, the organization had impliedly waived immunity and must accept the procedural burdens of a criminal prosecution.

The applicants established likely relevance under the first stage of the O’Connor framework.

Production was ordered for certain investigative materials for judicial review.

During pre-trial proceedings involving allegations of abuse of process related to police handling of solicitor-client privileged communications intercepted under Part VI wiretap authorizations, the court had ordered production of privileged materials for judicial review under the McClure framework.

The Crown sought a judicial stay rather than comply with the order, asserting that compliance would require disclosure of solicitor-client privileged communications between police and Crown counsel.

The defence agreed to the requested remedy.

Considering the public interest in preserving solicitor-client privilege and the lengthy procedural history of the case, the court exercised its discretion to terminate the prosecution by entering a judicial stay of proceedings.

The applicants brought a pre-trial motion seeking a stay of proceedings for abuse of process, alleging widespread police misconduct in the execution of wiretap authorizations, particularly regarding the interception of privileged solicitor-client communications.

During the motion, police witnesses testified about their handling of intercepted communications, prompting the applicants to seek disclosure of the legal advice the police received from Crown counsel.

The Crown asserted solicitor-client privilege over the advice.

The court held that while the individual officers did not waive privilege, the applicants met the threshold to pierce the privilege under the 'innocence at stake' exception as adapted for an abuse of process motion.

The court ordered a stage-two in-camera review of the privileged communications to determine if they should be disclosed to the defence.

The accused pleaded guilty to fraud over $5,000 contrary to s. 380(1)(a) of the Criminal Code.

He used his position as an investment advisor at a bank to steal approximately $9 million from the bank's clients over a six-year period.

He was sentenced to four years imprisonment.

The court issued a ruling on restitution, determining the appropriate amount to be ordered as part of the overall sentence.

The Crown sought restitution of $5,255,850, while the defence argued for a reduced amount of $4,695,871.39, accounting for recovered funds and the civil judgment against the accused.

The court ordered restitution in the amount of $4,695,871.39.

Following the dismissal of the appellant's appeal, the Ontario Securities Commission sought costs.

The Divisional Court awarded the Commission costs of the appeal fixed at $20,000 on a partial indemnity basis, finding no issue of broad public interest or misconduct by staff during settlement negotiations that would warrant denying costs.

The appellant appealed a decision of the Ontario Securities Commission dismissing his application under s. 144 of the Securities Act to set aside a settlement agreement.

The appellant argued the agreement should be set aside due to non-disclosure by Commission staff regarding an investigation into a key witness for breaching a cease trade order.

The Divisional Court held that the standard of review was reasonableness and found the Commission's decision not to revoke the settlement was reasonable, as the undisclosed information would not likely have affected the outcome of the administrative proceeding.

The appeal was dismissed.

During a pre-trial Charter motion concerning alleged breaches of s. 8 of the Canadian Charter of Rights and Freedoms during a criminal investigation, the accused brought a sub-motion seeking a declaration that certain intercepted call summaries and corresponding audio recordings were protected by solicitor-client privilege.

The court considered whether communications reflected in two specified call sessions were made within a solicitor-client relationship and for the purpose of obtaining or providing legal advice.

Finding that a professional retainer existed, that the communications involved legal advice, and that they were intended to be confidential, the court concluded that the privilege applied.

No waiver, severability issue, or exception to privilege was established.

The communications were therefore declared subject to solicitor-client privilege.

During pre‑trial proceedings, the accused advanced a Charter challenge alleging a breach of s. 8 arising from an alleged unreasonable search and seizure.

The court addressed issues relating to production of third‑party banking records held by a financial institution.

To facilitate the ongoing motion, the court clarified the scope of a subpoena duces tecum issued to a bank employee and specified categories of internal bank materials to be produced, including anti‑money laundering manuals, online instructions to branches, and training materials relevant to the relevant time period.

The endorsement was issued to ensure production of the documentation necessary for the continuation of the pre‑trial Charter application.

The appellant, a police officer, appealed the dismissal of his application for certiorari to quash his committal to stand trial on charges of breach of trust, obstruction of justice, and conspiracy to obstruct justice.

The appellant argued that the evidence from the preliminary inquiry only showed he attempted to assist a friend navigate the criminal justice system.

The Court of Appeal dismissed the appeal, agreeing with the reviewing judge that the totality of the evidence, including intercepted communications and the appellant's use of his position to access court officials, was sufficient to justify the committal to stand trial.

The appellants appealed a decision refusing to quash their committal for trial.

They argued the preliminary inquiry justice lost jurisdiction by refusing to allow them to call witnesses who had provided information relevant to judicial pre-authorizations, which they intended to use to establish Charter breaches.

The preliminary inquiry justice and the appeal judge treated the proposed witnesses as sub-affiants who could only be cross-examined with leave.

The Court of Appeal dismissed the appeal, holding that the witnesses were properly characterized as sub-affiants and that the refusal to allow their cross-examination at the preliminary inquiry did not impair the appellants' right to make full answer and defence.

The applicant applied under section 144 of the Securities Act to revoke a 2008 Commission order approving a settlement agreement regarding allegations of tipping.

The applicant argued that Staff failed to disclose an ongoing investigation into a key witness for breaching a cease trade order, which would have undermined the witness's credibility and altered the applicant's decision to settle.

The Commission found it had jurisdiction to hear the application but dismissed it on the merits.

The Commission held that the applicant's decision to settle was voluntary, unequivocal, and informed, and that Staff had fulfilled its disclosure obligations by orally informing the applicant's counsel of the investigation.

Furthermore, the undisclosed information regarding the witness's unintentional breach of the cease trade order was not crucial and would not have likely affected the outcome of the proceedings.

The appellants were investigated by Revenue Canada for claiming fraudulent limited partnership losses related to software valuation.

Search warrants were issued based on an Information to Obtain (ITO) that relied on an outside consultant's opinion, which the deponent incorrectly described as a 'valuation report'.

The appellants applied to quash the warrants, arguing the ITO was deceptive and improperly relied on hearsay.

The application judge dismissed the application, finding no deliberate deception and that the remaining information was sufficient to issue the warrants.

The appellants appealed.

The Crown moved to quash the appeal as moot because the seized items had been returned and no charges laid.

The Court of Appeal dismissed the motion to quash, exercising its discretion to hear the moot appeal.

On the merits, the Court dismissed the appeal, upholding the application judge's findings that the mischaracterization was not deliberate and that the deponent was entitled to rely on hearsay from other Revenue Canada employees and hired consultants.

The Crown appealed a conditional sentence imposed after a guilty plea to indecent assault arising from historical sexual abuse of a child by an adult in a position of trust.

The Court of Appeal held that a community-based sentence could not satisfy denunciation and general deterrence for repeated and escalating sexual assaults of a vulnerable minor.

The sentencing judge was found to have overemphasized the offender's remorse and the delay-related personal consequences while giving insufficient weight to the gravity of the abuse and its lasting harm to the victim.

Leave to appeal was granted and the sentence was increased to twenty months' custody, with credit for time already served on the conditional sentence.

The appellant appealed its conviction relating to the operation of two crane games, arguing they were games of skill rather than mixed chance and skill under s. 206(1)(f) of the Criminal Code.

The Court of Appeal dismissed the appeal, upholding the trial judge's finding that the games involved an overwhelming degree of chance and only a minimal element of skill for the ordinary player.

The court noted that virtually all elements of the game were beyond the player's control, making it a game of mixed chance and skill.

Criminal appeal from convictions arising from an armed robbery, where the principal issues were the admissibility of alleged confessions and the adequacy of the challenge-for-cause process.

The court held that the voir dire was infected by legal error and a failure to scrutinize all circumstances surrounding custodial interrogations, including missing arrest records, lack of audio or video recording, allegations of assault, oppressive conditions, and right-to-counsel concerns.

The Crown failed to meet its burden of proving voluntariness beyond a reasonable doubt, and one impugned statement was also inadmissible as bad character evidence.

The challenge-for-cause instructions were additionally found deficient.

Convictions were quashed and a new trial ordered.

The appellant appealed his jury conviction for importing heroin after he and his wife were found carrying 9.9 kilograms of heroin on arrival from Pakistan.

The Crown conceded that the trial judge’s refusal to permit a Parks challenge for cause under s. 638(1)(b) of the Criminal Code was reversible error requiring a new trial.

The court rejected the argument that the verdicts were inconsistent, holding that the duress defence required an individualized assessment of the co-accuseds' personal characteristics and circumstances, including whether each had an obvious safe avenue of escape.

The court declined to determine the improper cross-examination ground because no acquittal was available and a retrial was already required.