Timothy E. Breen

The appellant was convicted of first-degree murder in the shooting death of Kenneth Mark.

The Crown's theory was that the killing was retaliatory in nature, motivated by the victim's breach of the code of silence by identifying the appellant in connection with a prior attempted murder.

The appellant appealed on three grounds: (1) the admissibility of evidence regarding the prior attempted murder and the victim's fear of retaliation; (2) the admissibility of rap lyrics authored by the appellant; and (3) errors in the Crown's closing address regarding the appellant's late disclosure of an alibi and the false testimony of Crown witnesses.

The Court of Appeal dismissed all grounds of appeal and affirmed the conviction.

A provincial offences appeal concerning the destruction of a boundary tree without the consent of the co-owner.

The appellant, a homeowner, obtained a municipal permit to remove a Norway maple tree on the property line between his residence and his neighbors' property, claiming it was hazardous.

He removed the tree without obtaining the neighbors' consent.

The trial justice found him guilty of violating section 10(3) of the Forestry Act.

On appeal, the appellant argued that the Forestry Act did not apply to joint owners of boundary trees and that he had a self-help remedy to abate a nuisance.

The appellate court upheld the conviction, finding that the appellant's conduct was manifestly unreasonable, particularly given the three-and-a-half-year delay between obtaining the permit and removing the tree, and his failure to seek consent or court authorization.

The Crown appealed a sentence imposed by the trial judge, specifically challenging a fine in lieu of forfeiture of $20,000.

The respondent was convicted of producing and selling child pornography through a corporation he controlled, generating gross sales proceeds of $946,391.25, with agreed net proceeds of $797,809.47.

The trial judge calculated the fine based only on the respondent's salary attributable to child pornography production, rather than the full proceeds of crime.

The Court of Appeal allowed the Crown's appeal, finding that the trial judge erred in this calculation and that the full gross sales proceeds constituted proceeds of crime under the Criminal Code.

The court substituted a fine in lieu of forfeiture of $797,809.47, with eight years from expiry of the imprisonment sentence to pay, and a default sentence of four years consecutive imprisonment.

The appellant appealed his conviction for aggravated assault arising from injuries sustained by his cellmate at a correctional facility.

The appellant challenged the trial judge's admission of expert evidence regarding footwear impressions on the victim's face, the jury charge regarding inconsistencies in the appellant's statements, and the trial judge's response to a jury question on reasonable doubt.

The Court of Appeal upheld the conviction, finding no reversible error in the trial judge's evidentiary rulings or jury instructions.

The appellant appealed his conviction for multiple sexual offences against his step-sister, who was significantly younger.

The trial judge found the appellant had been in a position of trust and had exploited the complainant's vulnerability.

The appellant raised two grounds of appeal: (1) apprehension of bias based on the trial judge's interventions during trial, and (2) misapprehension of evidence.

The Court of Appeal rejected both grounds, finding the trial judge's interventions were appropriate and did not give rise to a reasonable apprehension of bias, and that there was no basis to interfere with the trial judge's findings of fact.

The appeal was dismissed.

The appellant was convicted of second degree murder for shooting the victim through the heart in a bus shelter in broad daylight.

The appellant claimed self-defence under former s. 34(2) of the Criminal Code, asserting that the victim had unlawfully assaulted him.

The jury rejected this claim and found him guilty.

The trial judge imposed a parole ineligibility period of 14 years.

On appeal, the appellant raised three grounds regarding the jury instructions on self-defence and challenged the parole ineligibility period.

The Court of Appeal dismissed all grounds of appeal from conviction and the appeal from sentence, finding no error in principle or misdirection by the trial judge.

The appellant appealed his convictions for sexual assault and sexual interference involving a 14-year-old complainant.

He argued the trial judge misapprehended the evidence of a witness regarding the complainant's post-offence conduct and failed to apply the rule against multiple convictions.

The Superior Court of Justice agreed that the sexual assault count should be stayed under the Kienapple principle.

However, the court dismissed the appeal against conviction, finding the trial judge adequately assessed the credibility of the witnesses and made no reversible error.

The duration of the Sex Offender Information Registration Act order was reduced from life to ten years.

The appellant was convicted of second degree murder after striking the victim with his truck during an altercation.

On appeal, the appellant argued the trial judge erred in instructing the jury on the defence of accident, the use of after-the-fact conduct, and the fault element for murder.

The Court of Appeal agreed, finding the errors compromised the jury's ability to determine the fault element.

The Court dismissed the appeal from conviction but substituted a conviction for manslaughter and imposed a sentence of time served, as jointly proposed by the parties.

The appellant appealed his convictions for sexual assault and uttering death threats against his former spouse.

At trial, the complainant denied sending a Facebook message that indicated the sexual activity was consensual, and the trial judge barred further cross-examination on the message.

On appeal, the appellant sought to introduce fresh evidence, including forensic analysis proving the complainant sent the message, which she subsequently admitted.

The Crown conceded the fresh evidence met the prerequisites for admissibility.

The Court of Appeal admitted the evidence, set aside the convictions, and ordered a new trial, which was stayed at the joint request of counsel.

The appellant appealed his conviction for attempted murder, aggravated assault, and assault, arguing the trial judge erred by refusing to allow cross-examination of the victim on his propensity for violence at the outset of the trial.

The Court of Appeal held the trial judge correctly applied the rule in Scopelliti, finding the request premature as there was no appreciable evidence of the victim's aggression at that stage.

The appeal was dismissed, noting the appellant chose not to renew the application later and ultimately, details of the victim's propensity for violence were put to the jury.

The appellant, Gordon Machen Jr., appealed his conviction for sexual assault, alleging ineffective assistance of trial counsel, reasonable apprehension of bias by the trial judge, and misapprehension of evidence.

The appeal court reviewed numerous allegations against trial counsel, including failure to obtain full disclosure, inadequate cross-examination on inconsistencies and omissions in complainant testimony, and an overly narrow "one-pronged" GPS defence.

While acknowledging some deficiencies in counsel's preparation and strategy, the court found that these did not individually or collectively establish a reasonable probability that the verdict would have been different or that the trial was unfair.

The court also dismissed the claim of judicial bias due to lack of independent evidence and found no material misapprehension of evidence by the trial judge.

The sentence appeal was deemed moot as the jail sentence and probation period had been completed.

The appeal was dismissed.

The appellant was convicted of unlawfully producing marihuana and possession of marihuana for the purpose of trafficking.

At trial, she raised the defence of duress, arguing she participated due to physical and emotional abuse by her romantic partner.

The trial judge failed to relate the expert evidence on battered spouse syndrome to the objective elements of duress in the jury charge.

The Court of Appeal allowed the appeal, set aside the convictions, and entered acquittals as the appellant had already served her sentence.

During an appeal involving allegations of ineffective assistance of counsel, the appellant's trial counsel retained his own lawyers.

Trial counsel's lawyers inadvertently disclosed a letter between trial counsel and themselves to the appellant's appeal counsel.

Trial counsel brought a motion for the return of the document, asserting solicitor-client privilege.

The Court of Appeal granted the motion, finding that the letter was privileged, the inadvertent disclosure did not constitute a waiver, and the innocence at stake exception did not apply to abrogate the privilege.

The appellant, a lawyer, appealed her conviction for criminal contempt and the resulting fine after failing to attend a peremptory court hearing for her client.

The Court of Appeal upheld the finding of contempt, concluding the trial judge made no palpable and overriding error in rejecting the appellant's explanation of an honest mistake due to illness.

However, the Court found the trial judge breached natural justice by imposing a sentence without allowing submissions.

The Court set aside the conviction and fine, substituting an absolute discharge and a referral to the Law Society for practice mentoring.

The appellant was convicted of arson after a fire was intentionally set in a farmhouse.

The Crown's theory was that the appellant set the fire to avoid admitting she lacked funds to close a property purchase, which would have exposed her double life.

The trial judge accepted this theory and sentenced her to 18 months' imprisonment.

On appeal, the appellant argued the trial judge erred in admitting discreditable conduct evidence, reversed the burden of proof, misapprehended evidence, and erred in denying a conditional sentence.

She also sought to adduce fresh evidence.

The Court of Appeal dismissed the conviction and sentence appeals, finding no errors and concluding the fresh evidence lacked sufficient probative value.

The appellant appealed his drug convictions, arguing that the police violated his s. 8 Charter rights by conducting a warrantless search of his apartment.

The police had relied on the exigent circumstances exception under s. 11(7) of the Controlled Drugs and Substances Act after arresting a drug dealer outside the building and observing repeated unanswered calls to the dealer's phone, which they believed would alert the supplier inside.

The Court of Appeal dismissed the appeal, finding that the police did not artificially create the exigent circumstances through a preplanned course of conduct, as the events creating the urgency were unanticipated.

The appellant was convicted of multiple historical sexual offences and assault causing bodily harm against two of his daughters.

At trial, extensive evidence of the appellant's uncharged violent behaviour and strict discipline was admitted without objection.

The trial judge failed to provide a promised limiting instruction prohibiting propensity reasoning based on this bad character evidence.

Furthermore, the trial judge failed to instruct the jury that they could not use the evidence of one complainant to bolster or confirm the credibility of the other.

The Court of Appeal found these omissions constituted errors in law, allowed the appeal, quashed the convictions, and ordered a new trial.

The appellant appealed his convictions for two counts of first-degree murder, arguing the trial judge erred in instructing the jury on how intoxication relates to planning and deliberation, and unfairly commented on the defence toxicologist's evidence.

The Court of Appeal dismissed the appeal, finding the jury instructions contained all essential legal elements and properly directed the jury to consider intoxication separately for intent and for planning and deliberation.

The court also found the trial judge's comments on the expert evidence were supported by the record and not objected to by trial counsel.

The appellant was convicted of second degree murder after strangling the victim.

He appealed, arguing the trial judge erred in jury instructions regarding intent and the partial defence of provocation, and that the Crown improperly cross-examined him on his right to silence.

The Court of Appeal found no error in the cross-examination but held that the trial judge erred by instructing the jury that the appellant's after-the-fact conduct (hiding the body and lying) could be used to infer the requisite intent for murder without proper qualification.

The trial judge also erred in the provocation instruction by attributing the appellant's size and athletic ability to the 'ordinary person' test.

The curative proviso could not be applied, and a new trial was ordered.

The appellant appealed a conviction for failing to provide a suitable breath sample contrary to s. 254(3) of the Criminal Code.

He argued that the trial judge’s questioning created a reasonable apprehension of bias, that fresh evidence regarding the distance between two locations should be admitted, and that the trial judge erred in taking judicial notice of the location of a nearby hotel.

The appeal court admitted the fresh evidence but held that the trial judge’s intervention did not demonstrate bias and that judicial notice of the hotel’s location was permissible.

Although the trial judge had misapprehended the precise distance between the locations, the error did not materially affect the credibility findings or the ultimate verdict.

The conviction was upheld.