Susan Magotiaux

Crown appeal of an acquittal in an impaired driving causing death case.

The trial judge excluded evidence of the accused's blood alcohol concentration under s. 24(2) of the Canadian Charter of Rights and Freedoms, finding that the accused's s. 8 Charter rights were violated when police obtained urine ethanol results without legal authority by asking hospital staff for the information.

The police then used these illegally obtained results to obtain search warrants for the accused's medical records and blood samples.

The trial judge found the officer asked the nurse for the results rather than merely overhearing them, and that without these results the warrant could not have been issued.

The Court of Appeal upheld the exclusion of evidence, finding the trial judge's reasons were sufficient and conducting a fresh s. 24(2) analysis that confirmed exclusion was appropriate.

The appellant was convicted of sexual assault and unlawful entry into a dwelling house following a seven-day trial.

He received a sentence of two years less a day imprisonment and two years of probation.

The appellant sought bail pending appeal.

The Court of Appeal dismissed the application, finding serious deficiencies in the appellant's bail compliance history, material omissions in his affidavits regarding outstanding breach charges, and insufficient grounds of appeal to overcome public interest considerations.

The trial judge's findings regarding the victim's incapacity to consent due to extreme intoxication were well-grounded in evidence and revealed no obvious error.

An appellant appealed the Ontario Review Board's disposition continuing his conditional discharge on terms.

The appellant had been found not criminally responsible on account of mental disorder in 2006 for assault causing bodily harm and mischief.

The Board found the appellant remained a significant threat to public safety based on his lack of insight into his mental illness, his unwillingness to take medication absent a Board order, his continued residual symptoms despite medication, his history of marijuana use leading to clinical worsening, and threatening statements made in 2015.

The Court of Appeal upheld the Board's decision, finding the conclusion that a foreseeable and substantial risk existed was reasonable on the evidence.

The appellants were convicted of first degree murder in the shooting death of Joel Waldron.

The Crown could not prove which appellant was the shooter but argued both were guilty as one was the shooter and the other aided or abetted the killing.

The appellants appealed on grounds that the trial judge's charge to the jury was deficient in relating evidence to the elements of aiding and abetting and planning and deliberation.

The Court of Appeal found the jury charge was factually unbalanced and failed to properly relate evidence to the necessary legal elements, particularly regarding aiding and abetting.

While the court did not find the verdict unreasonable, it quashed the convictions and ordered a new trial due to the deficiencies in the charge.

The appellant appealed his conviction and sentence on the ground that his trial counsel was ineffective for refusing to permit him to testify at trial.

The Court of Appeal found that the record did not support this submission.

The cross-examination on an affidavit prepared for the appeal demonstrated that while the appellant may have felt strongly about wanting to testify, he ultimately accepted his trial counsel's advice not to do so.

The appeal was dismissed.

The appellant appealed a disposition of the Ontario Review Board that detained him at the Secure Forensic Service of Ontario Shores Centre for Mental Health Sciences with restricted privileges.

The appellant advanced two grounds of appeal: that the Board's finding of significant threat to public safety was unreasonable, and that the Board erred in law by failing to apply section 14 of the Evidence Act regarding corroboration.

The Court of Appeal dismissed both grounds, finding ample evidence supported the significant threat threshold and that section 14 of the Evidence Act does not apply to Review Board proceedings as they fall under federal jurisdiction.

The appellant's collateral Charter application regarding medication was also dismissed as not cognizable on appeal.

The appellants were convicted of manslaughter following a trial by judge and jury.

Their convictions on break and enter to commit robbery were stayed pursuant to the Kienapple principle.

The appellants appealed their manslaughter convictions on various grounds and sought leave to appeal their sentences.

The Crown also sought leave to appeal the sentence imposed on one appellant.

The Court of Appeal found that the jury charge on the critical counts of manslaughter was insufficient to meet the functional requirements for an adequate jury charge, particularly in failing to adequately relate the evidence to the key issues and the parties' positions.

The conviction appeals were allowed and a new trial was ordered on all original charges.

The appellants were convicted of manslaughter following a trial by judge and jury.

Their convictions on break and enter to commit robbery were stayed pursuant to the Kienapple principle.

The appellants appealed their manslaughter convictions on various grounds and sought leave to appeal their sentences.

The Crown also sought leave to appeal the sentence imposed on one appellant.

The Court of Appeal found that the jury charge on the critical counts of manslaughter was insufficient to meet the functional requirements for an adequate jury charge, particularly in failing to adequately relate the evidence to the key issues and the parties' positions.

The conviction appeals were allowed and a new trial was ordered on all original charges.

This appeal addressed whether informer privilege can protect an anonymous Crime Stoppers tip made to obstruct a police investigation.

The Court held privilege does not apply where, on a balance of probabilities, the caller intended to further criminal activity or interfere with the administration of justice.

It confirmed judges should presume privilege exists and determine applicability through in camera proceedings, often ex parte, with fairness safeguards for the defence.

The Court also confirmed judges may review the tip record and may require a preliminary exclusion or probity showing before full litigation.

The appeal was dismissed.

The appellant appealed his sentence of two years less a day imposed for defrauding three victims.

Duty counsel raised two main grounds: that the trial judge failed to give effect to evidence of remorse, and that the trial judge imposed a sentence exceeding the Crown's position without affording defence counsel an opportunity to make further submissions.

The appellate court found that while the trial judge should have provided the defence an opportunity to address the proposed sentence, the imposed sentence was fit and perhaps even lenient given the serious nature of the frauds, the consequences to the victims, the appellant's guilty plea only after victims testified at the preliminary inquiry, and the appellant's prior probation for previous frauds.

The appellant appealed a sentence imposed by the trial judge for aggravated sexual assault, sexual interference, assault with a weapon, assault, and uttering a death threat.

The central issue was whether the trial judge had jurisdiction to issue a new Warrant of Committal four months after sentencing to correct a mathematical error in converting the sentence from years to months.

The trial judge had imposed a global sentence of 6.5 years but the Warrant of Committal incorrectly stated 66 months.

The Court of Appeal upheld the trial judge's authority to correct the error, finding that the judge's intention was manifest and that no reconsideration of the sentence was required.

An applicant convicted of two counts of first degree murder sought reconsideration of a prior decision denying his application for appointed counsel under s. 684(1) of the Criminal Code.

The applicant argued material changes in circumstances had occurred since the initial denial.

The court found that the applicant had demonstrated material changes, including: the inmate duty counsel program's refusal to assist; provision of previously missing financial documents to Legal Aid; and evidence addressing concerns about a property foreclosure proceeding.

The court determined both criteria under s. 684(1) were satisfied: it was desirable in the interests of justice to appoint counsel given the complexity and arguability of the appeal, and the applicant lacked sufficient financial means to retain counsel.

Counsel was appointed.

The appellant was convicted of possession of child pornography and making it available, and sentenced to three years in penitentiary.

On appeal, he argued the trial judge erred in allowing cross-examination on uncharged computer contents, breaching his right to silence, and finding intent to possess despite his deletion of the files.

The Court of Appeal dismissed the conviction appeal, finding the cross-examination proper and the trial judge's assessment of possession and control reasonable.

The sentence appeal was also dismissed as the three-year term was within the appropriate range.

The appellant appealed his conviction for sexual assault, arguing that the trial judge's reasons were insufficient to justify the conviction.

The Court of Appeal found that the trial judge's reasons, read as a whole and in context, clearly showed that he accepted the complainant's evidence of forced sexual intercourse and lack of consent.

The appeal was dismissed, as the reasons were sufficient to allow the appellant to understand his conviction and to permit meaningful appellate review.

The appellant appealed his convictions for sexual assault and related offences, as well as his sentence of 13.7 years.

He argued the trial judge erred by prohibiting cross-examination of the complainant regarding a conflict in her evidence about recent sexual activity, and by granting pre-trial custody credit at a 1:1 ratio and apportioning only half of it to the current charges.

The Court of Appeal dismissed the conviction appeal, finding the appellant failed to pursue the mandatory application process under s. 276 of the Criminal Code.

The sentence appeal was also dismissed, as the trial judge's decisions on pre-trial custody credit and apportionment were discretionary and revealed no error in principle.

The accused was charged with carrying a knife for a purpose dangerous to the public peace contrary to section 88(1) of the Criminal Code.

The Crown proceeded on one count after acknowledging lack of proof on four counts.

The accused's stated purpose was to kill himself during an incident at his apartment.

The court applied the two-stage test from R. v. Kerr: first determining the accused's subjective purpose, then assessing objectively whether that purpose was dangerous to the public peace.

The court found that even if the accused's true intent was suicide, the fact that he communicated this intent to his common-law partner, who was present and reasonably expected to intervene, made the possession dangerous to the public peace.

The court convicted the accused.

The appellant appealed her convictions for firearm and drug offences, as well as her sentence.

She argued the trial judge erred in applying step six of the Garofoli procedure by preventing a sub-facial challenge to the redacted information to obtain (ITO) the search warrant, which relied on confidential informers.

The Court of Appeal held that while an accused is entitled to mount a sub-facial challenge at step six, the trial judge's procedure and the judicial summary provided sufficient information to protect the right to make full answer and defence without breaching informer privilege.

The court also upheld the trial judge's dismissal of the appellant's Corbett application and found no error in the consecutive sentence imposed.

The appellant appealed his designation as a dangerous offender and the imposition of an indeterminate sentence following a guilty plea for sexual interference.

He argued the sentencing judge misapprehended evidence regarding his ability to manage his risk in the community using sex-drive reducing medication (Lupron) and sought to introduce fresh evidence of his progress on the medication.

The Court of Appeal dismissed the appeal, finding the sentencing judge reasonably concluded that the mere possibility of taking medication did not adequately reduce the high risk he posed to the public.

The court also dismissed the application to adduce fresh evidence, noting it was not credible due to the appellant's manipulative nature and was more appropriately a matter for parole authorities.

The appellant appealed his convictions for firearms and drug offences, arguing that the search warrant for his residence was unconstitutional.

The warrant was based largely on information from a confidential informant.

The appellant contended that the redacted Information to Obtain (ITO) did not provide reasonable grounds for the warrant and that the trial judge erred in refusing to allow cross-examination of the ITO affiant.

The Court of Appeal dismissed the appeal, finding that the redacted ITO provided sufficient grounds when read as a whole and that the trial judge properly exercised his discretion in refusing cross-examination to protect the informant's identity.

The appellant was charged with firearms and drug-related offences.

During a resolution discussion, the trial Crown offered to recommend a conditional sentence if the appellant pleaded guilty and provided a statement admitting he gave false evidence and his counsel knew it.

The appellant rejected the offer and applied for a stay of proceedings, alleging abuse of process.

The trial judge dismissed the application, ruling the discussion was protected by settlement privilege and the appellant failed to provide extrinsic evidence of prosecutorial misconduct.

The Court of Appeal allowed the appeal, finding that an exception to settlement privilege applied due to the allegation of prosecutorial misconduct, and that the unusual nature of the offer met the threshold evidentiary burden to review the Crown's exercise of discretion.

A new trial was ordered.