Timothy E. Breen

The Crown appealed the acquittals of two young persons charged with first degree murder.

The Crown argued the trial judge erred by excluding evidence of a prior altercation and association between the respondents and the deceased while incarcerated, which the Crown alleged was relevant to motive and could confirm the testimony of an unsavoury witness.

The Court of Appeal dismissed the appeal, finding the trial judge reasonably concluded the evidence lacked sufficient probative value to overcome its highly prejudicial effect, particularly after the key witness's trial testimony failed to connect the deceased to the alleged prior 'bad blood'.

The appellants appealed their convictions arising from a fatal motor vehicle accident.

The jury convicted the appellant driver of dangerous driving causing death but acquitted him of dangerous driving causing bodily harm arising from the same incident.

The Court of Appeal found the verdicts irreconcilably inconsistent, as both charges relied on the same evidence regarding the identity of the driver and the nature of the driving.

The conviction for dangerous driving causing death was quashed and an acquittal entered due to issue estoppel.

The related convictions for obstructing police and being an accessory after the fact were also quashed, with a new trial ordered for the obstruction charges.

The appellant appealed his convictions and nine-year sentence for sexual assault, invitation to sexual touching, and sexual exploitation involving two foster children.

He argued the trial judge erred in admitting similar fact evidence, failing to caution the jury on potential tainting, and failing to enter Kienapple stays.

The Court of Appeal dismissed the conviction appeals, finding no error in the admission of similar fact evidence or the jury instructions, but granted Kienapple stays on the sexual assault counts.

The sentence appeal was also dismissed, as the appellant's deteriorating health did not render the otherwise fit sentence unfit.

The appellant appealed his convictions for sexual assault, sexual interference, invitation to sexual touching, and making and possessing child pornography in relation to his nieces.

He argued the trial judge provided insufficient reasons, improperly used similar fact evidence, reversed the burden of proof, and misapprehended evidence.

The Court of Appeal dismissed the appeal, finding the reasons adequate, the similar fact evidence properly admitted, and no errors in the trial judge's assessment of the evidence or burden of proof.

The appellant appealed his conviction for first-degree murder, which occurred during a car theft.

The Crown's case relied heavily on a confession the appellant made to three associates, one of whom recanted his preliminary inquiry testimony at trial.

The appellant argued the trial judge erred in admitting the recanted testimony under the principled exception to the hearsay rule, in instructing the jury on collusion, in refusing to grant a mistrial when another witness refused to testify, and that the first-degree murder conviction based on unlawful confinement was unreasonable.

The Court of Appeal dismissed the appeal, finding no errors in the trial judge's evidentiary rulings or jury instructions, and concluding that it was open to the jury to find the murder was committed during a distinct act of unlawful confinement.

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 appealed convictions for three counts of dangerous driving causing death arising from a highway collision after attempting to pass three vehicles on a wet two-lane road while cresting a hill in heavy traffic.

The court held that the trial judge gave careful and thorough reasons and committed no reviewable error in finding that the passing manoeuvre was dangerous and a marked departure from the standard of a reasonable driver.

The court rejected appellate calculations advanced to challenge the factual findings, noting they had not been tested through the trial process and did not undermine the trial judge's reasoning.

The court also upheld the finding that evasive action and loss of control by the oncoming vehicle were foreseeable consequences of the appellant's conduct.

The appeal was dismissed.

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.

In a youth criminal appeal from a conviction for possession of child pornography, the appellant argued that the search warrant was invalid because the information to obtain was sworn before a commissioner of oaths rather than a justice.

The court rejected that submission, holding that s. 487(1) of the Criminal Code requires only that a justice issue the warrant, not that the oath be sworn before a justice.

Relying on the statutory provisions permitting non-substantive deviations from prescribed forms and variation of Criminal Code forms to suit the case, the court held the local warrant application practice was appropriate.

The alleged s. 8 Charter breach was therefore not made out and the conviction appeal was dismissed.

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.