Timothy E. Breen

The appellant appealed his conviction for assault, arguing the trial judge erred in rejecting his self-defence claim and that he received ineffective assistance of counsel at trial.

The Court of Appeal dismissed the appeal, finding the trial judge's conclusion that the force used was unreasonable was supported by the accepted evidence of an independent witness.

The court also rejected the ineffective assistance claim, concluding that trial counsel's approach was reasonable and the appellant failed to demonstrate prejudice or professional incompetence.

The appellant was convicted of first degree murder by a jury for the shooting death of his former common-law partner.

On appeal, he conceded liability for second degree murder but argued the trial judge erred in her jury instructions regarding the evidence of planning and deliberation.

The Court of Appeal found that the trial judge fairly reviewed the evidence and was not required to review every competing inference or all of the evidence.

The appeal was dismissed.

The appellant appealed a conviction for assault with a weapon following a trial in the Ontario Court of Justice, where an absolute discharge had been imposed.

The case largely turned on the credibility of the complainant, the sole witness.

On appeal, the appellant sought to introduce fresh evidence suggesting the complainant may have misled the court about whether he had read a letter from his son before providing it to the Crown.

The court admitted the fresh evidence, finding it could reasonably have been used to impeach the complainant’s credibility and might have created reasonable doubt.

The conviction was set aside and a new trial ordered.

The Crown appealed an acquittal on a charge of failing to stop at the scene of an accident causing death under s. 252 of the Criminal Code.

The central issue was whether the trial judge erred in law in assessing intent to escape civil or criminal liability, including through the doctrine of wilful blindness, where the respondent testified he believed he struck a deer rather than a cyclist.

The Court of Appeal held that the trial judge's treatment of the evidence and credibility findings were, at their highest, matters of mixed fact and law and therefore not reviewable on a Crown appeal restricted to questions of law alone.

The court further held that the correct intent requirement under s. 252 had been accurately stated and applied.

The Crown appeal was quashed.

The appellants were convicted of kidnapping with intent to confine after holding an innocent victim for ransom over a drug dispute.

On appeal, they challenged the admission of a confession made by one appellant, arguing it was involuntary, violated Charter rights, and breached spousal privilege.

They also appealed their sentences, arguing they offended the parity principle compared to a co-accused who pleaded guilty.

The Court of Appeal dismissed the conviction appeals, finding no error in the trial judge's admission of the statement or refusal to edit out co-accused names.

The sentence appeals were also dismissed, as the sentences reflected the appellants' respective roles and were not a marked departure from the range.

The appellant, a property owner, confronted two trespassers poaching fish from his private pond.

He fired a shotgun and held one trespasser at gunpoint.

He was convicted of assault with a weapon and using a firearm while committing an indictable offence.

On appeal, he argued the trial judge erred in instructing the jury on the defence of property, that the Kienapple rule barred multiple convictions, and that the mandatory minimum one-year sentence for the firearm offence violated s. 12 of the Charter.

The Court of Appeal dismissed the appeal, finding no error in the jury charge, that Kienapple did not apply because the offences had distinguishing elements, and that the mandatory minimum sentence was not grossly disproportionate.

The appellant appealed a conviction, arguing the trial judge erred in assessing credibility, applied different standards of scrutiny, and improperly used discreditable conduct evidence regarding an extramarital affair.

The Court of Appeal dismissed the appeal, finding the trial judge properly applied the W.D. principles, did not shift the burden of proof, and correctly used the evidence of the affair to assess credibility rather than for impermissible propensity reasoning.

The appellant appealed his manslaughter conviction, arguing the proceedings should have been stayed as an abuse of process due to the misconduct of a forensic pathologist and the Office of the Chief Coroner for Ontario.

The appellant had previously been convicted of murder based on the pathologist's flawed pediatric forensic pathology evidence, a conviction later overturned by the Supreme Court of Canada.

The Court of Appeal held that while the state actors' misconduct was egregious and fell within the residual category of abuse of process, a stay of proceedings was not warranted.

Balancing the interests, the court found that a trial on the merits was appropriate given the serious nature of the allegations of chronic physical child abuse and the fact that the systemic issues had since been addressed.

The appellant appealed his conviction for first-degree murder, arguing that the trial judge erred in admitting police investigative narrative evidence and that the Crown improperly cross-examined him on his alibi, infringing his right to silence.

The Court of Appeal held that the investigative narrative evidence was properly admitted in reply because the defence had attacked the integrity of the police investigation.

The Court also found that while some of the Crown's cross-examination and jury address regarding the appellant's right to silence and false alibi were problematic, the trial judge's instructions adequately protected the appellant's fair trial rights.

The appeal was dismissed.

The Crown appealed an acquittal entered after the trial judge excluded evidence obtained during a warrantless search of a driver and his vehicle following a traffic stop.

The trial judge found the stop became an unjustified investigative detention and rejected the officers' safety concerns, concluding they were on a 'fishing trip'.

The Court of Appeal dismissed the Crown's arguments that the trial judge made an unsupported finding of fact regarding a rolling stop and that his questioning of police witnesses created a reasonable apprehension of bias.

The Crown appealed a sentence on the sole issue whether enhanced credit under s. 719(3.1) of the Criminal Code could be granted for pre-sentence custody based on loss of remission and parole eligibility.

The court held that the discretion to grant credit up to 1.5:1 is not confined to exceptional or unusual circumstances and may include parole and remission consequences where the record supports their relevance to the particular offender.

Applying modern statutory interpretation and the sentencing principles of proportionality and parity, the court concluded that a narrower reading would produce unjust disparities between similarly situated offenders.

The sentence appeal was dismissed.

The appellant appealed his convictions for importing and possessing opium.

A package containing opium concealed in a briefcase was delivered to his address, and he was arrested after accepting a controlled delivery.

On appeal, he argued the trial judge erred in relying on an out-of-court statement and that the finding of guilt was unreasonable.

The Court of Appeal dismissed the appeal, holding that while the trial judge erred in relying on the out-of-court statement, the error was not determinative.

The court further found that the circumstantial evidence, including the manner of acceptance and concealment of the package, reasonably supported a finding of knowledge.

The appellant pled guilty to manslaughter and was sentenced to nine years globally, with a net sentence of seven years after credit for pre-trial custody.

He appealed the sentence, arguing the sentencing judge erred in his treatment of mitigating factors and in failing to provide 2:1 credit for pre-sentence custody.

The Court of Appeal found no error in the treatment of mitigating factors but concluded the sentencing judge made a mathematical or principled error by failing to apply the intended 2:1 credit.

The appeal was allowed and the net sentence was varied to five and a half years.

The Court addressed whether Crown-requested police background checks of prospective jurors were permissible and what disclosure duties followed from that practice.

It held that limited criminal-record checks to assess juror eligibility are permissible, and that relevant information obtained for jury selection must be disclosed to the defence.

Applying the appellate non-disclosure framework, the Court found no reasonable possibility that disclosure failures changed jury composition.

The Court also held the impugned conduct did not meet the threshold for miscarriage of justice based on appearance of unfairness.

The appeals from conviction were dismissed.

The appellant appealed convictions for multiple sexual offences against a child family member and also appealed sentence.

The court rejected the argument that the appellant's statement to police was involuntary, applying the common law confessions rule and holding that he understood the consequences of speaking to police; in any event, any error was harmless given other admissible admissions.

The court also rejected attacks on the complainant's credibility, finding no failure to consider motive, contradictions, or the absence of more serious allegations.

However, the court held that a five-year penitentiary sentence exceeded the appropriate appellate range on the facts and reduced the sentence to four years.

The appellant appealed his conviction for sexual assault causing bodily harm against his former partner, with whom he was engaged in a custody dispute.

He argued the trial judge misapprehended evidence regarding a note written by the complainant, the nature of her injuries, and her motive to fabricate the allegations to gain an advantage in family court.

The Court of Appeal dismissed the appeal, finding it was open to the trial judge to accept the complainant's explanations and reject the defence's hypotheses.

A fresh evidence application regarding post-trial custody proceedings was also dismissed.

The appellant was convicted of second-degree murder after stabbing a man in a bar.

At trial, he claimed self-defence.

On appeal, he argued the trial judge erred by failing to instruct the jury on the partial defence of provocation, admitting evidence of the victim's peaceful disposition, and making various errors in the jury charge, including the instruction on self-defence.

The Court of Appeal dismissed the conviction appeal, finding no air of reality to the subjective element of provocation, as the appellant's own testimony indicated he acted out of self-preservation rather than sudden passion.

The court also found no reversible errors in the jury charge or evidentiary rulings.

The sentence appeal regarding the 14-year parole ineligibility period was also dismissed.

The appellant, a first-time offender addicted to cocaine, pleaded guilty to trafficking after selling $40 of crack cocaine to an undercover officer.

He successfully completed a drug rehabilitation program, leading the Crown and defence to jointly submit an eight-month conditional sentence.

The sentencing judge rejected the joint submission and imposed a six-month jail term, mistakenly finding the appellant was a 'middleman.' On appeal, the Crown conceded the error.

The Court of Appeal allowed the appeal, holding that the sentencing judge misapprehended the evidence and failed to apply the high threshold for departing from a joint submission.

The sentence was varied to an eight-month conditional sentence.

The applicant sought to quash a committal for trial on an allegation of attempting to obstruct justice arising from advice given to a prospective witness before a preliminary inquiry.

Applying the review standard on a motion to quash committal, the court held the Crown evidence lacked sufficient contextual completeness to support a reasonably available inference of specific intent to obstruct justice.

The court distinguished authorities where surrounding words and circumstances supplied interpretive reliability, and found the impugned fragmentary utterance equally consistent with lawful advice to use a proper name rather than a nickname.

Because the record did not provide evidence from which a properly instructed jury could reasonably convict, the committal order could not stand.

The appellant appealed convictions for sexual assault and sexual interference involving historic intrafamilial abuse, arguing that the trial judge's reasons were inadequate and that the credibility analysis failed to address contradictions and frailties in the complainant's evidence.

The court held that the trial judge was alive to the complainant's psychiatric history, substance abuse, delayed disclosure, and conflicts with other witnesses, and properly differentiated between allegations that lacked confirmation and those that had some independent support.

The court further held that a partial admission to the complainant's mother was capable of providing confirmatory support, while other corroborative details were given only slight weight.

The appeal was dismissed.