Timothy E. Breen

The appellant appealed his convictions for robbery, assault with a weapon, and related offences arising from an attack at an ATM.

The Crown's case relied heavily on eyewitness identification by the victim, who identified the appellant outside the courtroom at the preliminary inquiry.

The Court of Appeal allowed the appeal and ordered a new trial, finding that the trial judge failed to adequately caution the jury about the highly problematic nature of the out-of-court identification.

Furthermore, the trial judge erred by refusing to allow defence counsel to cross-examine the victim about a conversation he had with his father during a break in his cross-examination.

The Crown appealed a fourteen-year effective sentence imposed for possession of child pornography and multiple sexual assaults against children and a teenage victim, arguing the sentence was demonstrably unfit and should be increased to eighteen years.

The Court of Appeal held that appellate intervention on sentence is available only where the sentence reflects a substantial and marked departure from sentences customarily imposed for similar offenders committing similar crimes.

The court found no error in principle, accepted that the sentencing judge properly weighed the gravity of the offences, the offender's position of trust, the profound impact on the victims, mitigation, and totality, and declined to vary the sentence.

The court also refused to intervene regarding an alleged four-month error in calculating pre-trial custody.

The appellant appealed a condition of his probation order.

The Crown conceded that condition r(8) of the probation order was not a reasonable condition.

The Court of Appeal granted leave to appeal, allowed the appeal, and deleted the condition.

The appellant appealed his conviction for second-degree murder, arguing the trial judge erred in refusing a mistrial, making improper rulings on character evidence and cross-examination on criminal records, failing to leave the defence of provocation with the jury, and giving improper jury instructions on intent and a rolled-up charge.

The Court of Appeal dismissed the appeal, finding the trial judge properly exercised his discretion regarding the mistrial, struck an appropriate balance on character evidence, correctly concluded provocation had no air of reality, and adequately instructed the jury on intent and intoxication.

The appellant was convicted of second-degree murder after beating the victim to death.

At trial, the appellant's core defence was that he was not present when the victim was killed, but he also relied on the defence of provocation based on an alleged unwanted sexual advance by the victim.

The trial judge left provocation to the jury.

On appeal, the appellant argued the jury charge on provocation was flawed.

The Court of Appeal dismissed the appeal, finding that the defence of provocation lacked an air of reality on both the objective and subjective elements, and therefore should not have been left to the jury.

As the jury had to find the appellant committed murder before considering provocation, the error occasioned no substantial wrong or miscarriage of justice.

The appellant appealed his conviction for second-degree murder, arguing that the trial judge failed to adequately caution the jury regarding the evidence of an unsavoury witness and that the verdict was unreasonable.

The Court of Appeal found that the trial judge's Vetrovec warning adequately conveyed the dangers of relying on the witness's testimony, noting the witness's criminal record and drug addiction.

The Court also held that the verdict was not unreasonable, as the witness had a good opportunity to observe the events and his reliability was not challenged.

The appeal was dismissed.

The appellant appealed his designation as a long-term offender, arguing that the predicate offence of obstructing justice could not constitute a 'serious personal injury offence' under section 752 of the Criminal Code.

The appellant had sent a threatening letter to a former partner while on bail, leading to convictions for criminal harassment and obstructing justice.

The Court of Appeal dismissed the appeal, holding that obstructing justice meets the definition of a serious personal injury offence because it carries a maximum sentence of ten years or more and, on the facts of this case, the conduct inflicted or was likely to inflict severe psychological damage on the recipient.

The appellant, a nursing home manager, was convicted of assaulting elderly residents.

Two of the complainants died before trial, and the trial judge admitted their videotaped statements to police under the principled exception to the hearsay rule, relying on striking similarities between their statements and those of other residents.

The Court of Appeal allowed the appeal and entered acquittals.

The majority held that under the Supreme Court's decision in Starr, corroborative evidence from other complainants regarding different events cannot be used to establish threshold reliability when the declarant is unavailable for cross-examination.

The appellant appealed the sentence imposed by the Ontario Court of Justice.

The Court of Appeal found that the sentence proposed in the joint submission was not out of the range and would not bring the administration of justice into disrepute, considering the appellant's age, record, and role in the offence.

The appeal was allowed, and the custodial sentence was reduced to time served, with the probation order remaining in place.

The appellant appealed his conviction, arguing that his guilty plea was not voluntary.

The Court of Appeal found that the appellant likely maintained his innocence to his counsel and pleaded guilty only because he incorrectly perceived he had no alternative.

He sought to withdraw the plea almost immediately prior to sentencing, and the Crown did not oppose.

The Court allowed the appeal, struck out the guilty plea, quashed the conviction, and ordered a new trial in the interests of justice.

The appellant appealed his convictions for sexual assault and sexual interference.

The Court of Appeal found that the trial judge committed a reversible error by misapplying the third step of the W.(D.) framework, effectively reversing the burden of proof by requiring the accused's evidence to raise a reasonable doubt that the complainant's evidence was not true.

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

The appellants appealed their convictions.

The Court of Appeal found that the verdict was not unreasonable, as there was direct evidence from the complainant identifying one of the appellants, which was confirmed by independent evidence.

However, the Crown conceded that the appeal must be allowed based on the challenge for cause procedure.

The appeals were allowed, the convictions quashed, and a new trial ordered.

The appellant appealed his conviction and sentence for aggravated assault.

The Court of Appeal upheld the conviction, finding that the appellant was trespassing and engaged in an unlawful assault when he and the victim went over a balcony, establishing causation.

However, based on fresh evidence of the appellant's significant progress during his 18 months in custody, the Court allowed the sentence appeal and varied the sentence to time served plus two years of probation.

The appellants appealed their convictions for possession of stolen property and fraud.

The fraud conviction related to the sale of a rebuilt truck.

The Court of Appeal quashed the fraud conviction and entered an acquittal, finding the indictment alleged the victim was defrauded of the truck itself, whereas the evidence only supported fraud of the purchase money.

The Court also quashed the possession convictions and ordered a new trial, finding the trial judge's jury instructions confusingly suggested that knowledge of an obliterated VIN was sufficient to establish the mens rea for possession of stolen property, rather than requiring proof of knowledge that the property was actually obtained by crime.

The appellant appealed his third conviction for sexual assault, arguing the trial judge erred in assessing defence evidence.

The Court of Appeal found the trial judge improperly discounted defence witnesses' testimony because they had to reconstruct events years later, holding the defence to an impossible standard.

Given that this would be the appellant's fourth trial for an incident that occurred 13 years prior, the Court concluded that proceeding further would violate the community's sense of fair play.

The appeal was allowed, the conviction set aside, and a stay of proceedings entered.

The appellant was convicted of assault with a weapon after striking the complainant in the face with a broken beer bottle outside a bar.

The summary conviction appeal judge dismissed the conviction appeal but varied the sentence.

On further appeal, the Court of Appeal found that the trial judge misapprehended evidence regarding the complainant's threats and the appellant's state of mind, and misstated the burden of proof under the W. (D.) test.

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

The Crown appealed a costs order made against it by a bail review judge.

The bail review judge had awarded costs due to the Crown and police's failure to bring a victim's statement to court, which was characterized as sloppy conduct.

The Court of Appeal allowed the appeal and set aside the costs order, finding no Charter breach and that the conduct did not reach the level warranting costs against the Crown, as the respondent suffered no prejudice.

Armstrong J.A. dissented, finding the police conduct went beyond mere sloppiness and justified the costs order.

The Crown appealed an acquittal entered by the trial judge.

The Court of Appeal found that the trial judge erred in law by relying on a previous incident of consensual sex, which violated s. 276 of the Criminal Code.

The case was not fought on the issue of consent, as the respondent's position was that the alleged act of anal intercourse did not occur.

The appeal was allowed and a new trial ordered.

The appellant appealed his criminal conviction, arguing the trial judge erred in admitting his statement to the arresting officer, excluding the officer's opinion about that statement, and restricting cross-examination of the complainant regarding a statement of claim and under the Seaboyer framework.

The Court of Appeal dismissed the appeal, finding that while the appellant's statement had little probative value, its admission caused no substantial wrong or miscarriage of justice.

The court also upheld the trial judge's discretionary evidentiary rulings.

The appellant appealed his conviction, arguing that the trial judge erred in concluding that a boot print found at the scene matched his boot print.

The Crown had called two expert witnesses on footwear analysis who testified that the characteristics of the boot print were not manufacturing defects but natural wear and tear.

The Court of Appeal dismissed the appeal, holding that the trial judge was entitled to accept the expert evidence.