Timothy E. Breen

The appellant was convicted of first-degree murder after an elderly woman died of asphyxiation when an intruder taped her mouth shut during a break-in.

On appeal, the appellant argued the trial judge erred in his jury instructions regarding the review of evidence, the legal duty to act, and the presentation of factual scenarios concerning the intruder's intent.

The appellant also argued the verdict was unreasonable.

The Court of Appeal dismissed the appeal, finding no errors in the jury charge and concluding it was reasonable for the jury to infer the appellant was present when the victim asphyxiated.

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.

The appellant appealed his sexual assault conviction, arguing the trial judge erred by excluding evidence under section 276 of the Criminal Code that the complainant engaged in consensual sex with another man shortly after the alleged assault.

The Court of Appeal found that the Crown's cross-examination and closing address presented a distorted narrative regarding the complainant's emotional state and loyalty to her boyfriend, making the excluded evidence highly probative to the defence.

The appeal was allowed, the conviction set aside, and a new trial ordered.

The appellant appealed his convictions for sexual touching and sexual assault against his son.

At trial, the Crown was permitted to lead similar fact evidence of an incident that had been the subject of a prior trial ending in a 'judicial stay' when the complainant refused to testify.

The Court of Appeal held that the prior judicial stay was the functional equivalent of an acquittal, and therefore the doctrines of issue estoppel and abuse of process precluded the Crown from leading the evidence.

The appeal was allowed and a new trial ordered.

The appellant appealed his conviction for first degree murder, arguing the trial judge erred in refusing to sever his trial from his co-accused and in his jury instructions on hearsay evidence.

The appellant sought severance to call his co-accused as a witness to support his defence that the killing was not planned and deliberate, but rather the result of an intermittent explosive disorder triggered by taunting.

The Court of Appeal dismissed the appeal, finding no error in the refusal to sever, as the co-accused's evidence would not have realistically affected the verdict.

The court also found no error in the hearsay instructions, concluding the appellant had a fair trial.

The appellant appealed his conviction for fourteen sexual offences involving eight complainants at group homes where he worked.

The Crown's case relied heavily on a confession the appellant gave to police while he was a voluntary psychiatric patient suffering from depression.

The appellant argued his s. 10(b) Charter right to counsel was violated because the police did not obtain a clear waiver after he gave an equivocal response about wanting a lawyer.

The Court of Appeal dismissed the appeal, finding the appellant understood his rights and had a reasonable opportunity to exercise them, and the police were not required to do more in the circumstances.

Multiple appellants challenged jury convictions for two first degree murders and attempted murder arising from a retaliatory gang-related shooting.

The court rejected allegations of unfair trial management, unfair jury instructions, improper admission of prior K.G.B. statements and preliminary inquiry evidence, erroneous refusal of severance, improper admission of intercepted artistic expression, and misdirection on cell phone location evidence.

Applying a threshold reliability analysis informed by Khelawon, the court upheld admission of a key unavailable witness's prior statements.

The court also dismissed a fresh evidence application concerning synchronization of 911 and carrier clocks, holding the proposed evidence would not reasonably have affected the verdict given the broader evidentiary record.

The appellants, two brothers, appealed their convictions for second degree murder following the stabbing death of the victim during an altercation in an apartment.

The appellants argued the trial judge erred in his instructions to the jury regarding self-defence, provocation, intent, causation, and in responding to jury questions.

The Court of Appeal dismissed the appeals, finding no errors in the trial judge's instructions or responses to the jury, and concluding there was no air of reality to the defences of provocation or self-defence.

The appellant appealed a dangerous offender finding.

The Court of Appeal upheld the sentencing judge's conclusion that the appellant presented a very high risk of re-offending in domestic relationships, had speculative prospects for treatment, and lacked motivation to obtain treatment.

The Court found no error in the sentencing judge's assessment of the risk or the requirement for positive evidence of the utility of treatment.

The appeal was dismissed.

The Crown appealed the respondent's acquittals on two counts of first-degree murder and convictions for the included offence of infanticide.

The Crown argued that infanticide is not a partial defence to murder, but only an included offence if murder is not proved.

The Court of Appeal dismissed the appeal, holding that infanticide operates as both a substantive offence and a partial defence to murder.

The Court also clarified that the mens rea for infanticide is akin to manslaughter, and that the Crown bears the burden of negating the defence of infanticide beyond a reasonable doubt.

The appellant appealed the long term supervision order imposed by the sentencing judge.

The trial judge had found that the appellant was not a dangerous offender, but still imposed a long term supervision order.

Based on R. v. Johnson, both parties agreed the long term offender designation could only stand if the appellant met the dangerous offender criteria.

The Crown argued the trial judge's finding that the appellant was not a dangerous offender was unreasonable.

The Court of Appeal disagreed, noting the trial judge reasonably relied on the Crown's expert, Dr. Woodside, whose opinion supported the finding.

The appeal was allowed, the long term offender designation was set aside, and a three-year probation order was imposed.

The appellant appealed his conviction for touching for a sexual purpose.

He argued the trial judge erred by admitting prior consistent statements made by the complainant to her school friends and by failing to properly resolve inconsistencies in her testimony.

The Court of Appeal dismissed the appeal, finding that the prior statements were properly admitted to rebut the defence's allegation of recent fabrication and that the trial judge's resolution of the evidentiary inconsistencies was reasonably supported by the record.

The appellant appealed his conviction on three counts of historic sexual offences against his stepdaughter.

He argued the trial judge erred in failing to properly instruct the jury regarding the limited use of evidence that the complainant's mother kicked him out of the apartment, and regarding potential collusion between the complainant and her brother.

The Court of Appeal dismissed the appeal, finding the trial judge's limiting instructions were adequate and a special instruction on collusion was not mandatory.

The appellant appealed his conviction for first-degree murder, arguing that the use of his DNA, which was on file from a 1995 sexual assault conviction, violated his s. 8 Charter rights against unreasonable search and seizure.

He also argued the trial judge erred in instructing the jury that individual items of evidence, including DNA findings, need not be proven beyond a reasonable doubt.

The Court of Appeal dismissed the appeal, holding that a convicted offender loses any reasonable expectation of privacy in identifying information derived from lawfully obtained DNA.

The court also found no error in the jury charge, as the trial judge properly instructed the jury to consider all evidence cumulatively to determine if the essential element of identity was proven beyond a reasonable doubt.