Timothy E. Breen

The appellant appealed jury convictions for sexual offences against a child complainant, arguing errors in the admission of similar fact evidence, narrative evidence surrounding the complaint, limitations on cross-examination, and disclosure of a prior prosecution file.

The court held that prior sexual assault evidence involving another child was properly admitted as highly probative, and that evidence of non-sexual abuse was admissible to explain the relationship, fear, delayed disclosure, and context of the assaults.

It also found that the complaint narrative evidence was admissible, that the cross-examination issue had not been preserved, and that no prejudice arose from incomplete disclosure.

The appeal was dismissed and a publication ban was imposed to protect the identity of the complainant and other witnesses.

Two appellants appealed jury convictions for sexual assault and unlawful confinement arising from an assault on an intoxicated teenage complainant at a rural gravel pit.

The court held that the trial judge properly instructed the jury that it could consider defence counsel's failure to cross-examine the complainant on a central factual issue later contradicted by one appellant's evidence when assessing credibility.

The court also rejected objections to evidence that two witnesses had pleaded guilty to perjury in relation to their preliminary inquiry testimony.

Although aspects of Crown cross-examination and submissions touched improperly on one appellant's pre-trial silence, the curative instruction was held sufficient and no miscarriage of justice was found.

The appellant appealed an 18-month sentence imposed following conviction for criminal negligence causing bodily harm.

He argued the sentencing judge failed to give proper effect to restorative justice principles and should have imposed a conditional sentence.

The court held the sentencing judge had fully considered the relevant sentencing principles later articulated in Proulx, and that a custodial sentence was entirely appropriate given the highly dangerous conduct and the serious injuries to the complainant.

Leave to appeal sentence was granted, but the appeal was dismissed.

The appellant appealed a sexual assault conviction, arguing that the trial judge misapprehended material evidence and that the finding of guilt was unreasonable.

The appeal focused on the complainant's post-incident police statement, conflicting evidence from another witness about a prior incident, and an alleged motive to fabricate arising from employment circumstances.

The Court of Appeal held that the trial judge considered each point, was entitled to accept and reject portions of the evidence as he did, and gave clear and persuasive reasons.

The conviction appeal was dismissed.

A criminal lawyer appealed a contempt conviction arising from his failure to appear with his client at a peremptory disposition hearing.

The Court of Appeal held that counsel non-appearance is not per se criminal contempt and that the fault element requires at least indifference to obligations to the court and client.

The trial judge erred by cutting off evidence about arrangements made for an associate to attend and by relying on prior non-appearances by the lawyer and others in his firm without proper notice.

The conviction was quashed and an acquittal entered because, on the uncontested affidavit record, the conduct did not amount to criminal contempt.

The appellants appealed their convictions for second degree murder arising from a circumstantial case that they killed the deceased in order to steal and export his newly purchased vehicle.

The Court of Appeal rejected challenges to jury selection, exclusion of alleged third-party suspect evidence, and numerous aspects of the jury charge, including instructions on separate liability, recent possession, reasonable doubt, circumstantial evidence, manslaughter, and post-offence conduct.

The court also held that the co-accused's cut-throat closing address did not warrant severance or a mistrial, and that any improper advocacy was adequately corrected by the trial judge.

The convictions were upheld and the Crown's contingent cross-appeal was not addressed.

The appellant challenged convictions for trafficking in a narcotic and possession of proceeds of crime on the sole ground that the trial judge improperly refused to order disclosure of the precise location of a police observation post.

The Court of Appeal held that the trial judge applied the correct legal principles in balancing public interest privilege and the accused's right to make full answer and defence.

The appellant already knew the building used for surveillance and the surrounding conditions, and the defence failed to identify any specific prejudice arising from nondisclosure.

The defence was also granted leave to renew the application during trial but did not do so, which was fatal to the appeal.

The appellant appealed jury convictions on multiple sexual offence counts and, in the alternative, sentence.

The Court of Appeal held that the trial was undermined by multiple charge errors, including inadequate instructions on prior inconsistent statements, prior consistent statements, consent, position of trust, similar fact evidence, reasonable doubt, and unanimity, together with an incomplete readback and problematic prosecutorial comments.

Although some individual errors might have been curable, their cumulative effect prevented application of the proviso.

The convictions on counts 3 to 6 were set aside and a new trial was ordered on those counts.

The appellant appealed a perjury conviction arising from a false statement in an affidavit filed on an application for release pending appeal from sexual assault convictions, and alternatively appealed sentence.

The Court of Appeal held there was ample evidence to support the trial judge’s finding that the statement about prospective employers was false and made with intent to mislead the court.

Applying the totality principle, the court found the consecutive one-year custodial sentence was not demonstrably unfit, although a shorter sentence may also have fallen within the acceptable range.

The conviction appeal was dismissed, and leave to appeal sentence was granted but the sentence appeal was also dismissed.

The appellant challenged a jury conviction on the basis that the trial judge inadequately charged the jury on provocation and erred in the self-defence instruction under s. 34(2) of the Criminal Code.

The court held the charge, read as a whole, fully reviewed the evidence and sufficiently conveyed that the jury had to assess the appellant's circumstances in light of the matrimonial dispute.

The court further held that the trial judge properly focused the jury on the central factual dispute concerning who first introduced the hammer into the altercation.

No misdirection was established and the appeal was dismissed.

The appellants, Suzack and Pennett, were convicted of first-degree murder in the shooting death of Constable Joe MacDonald during a routine traffic stop.

Both appellants advanced cut-throat defences at trial, each blaming the other for firing the fatal shots.

On appeal, they argued that the trial judge erred in refusing a change of venue, refusing to sever their trials, and misdirecting the jury on propensity evidence and after-the-fact conduct.

Suzack also challenged the constitutionality of s. 635(2) of the Criminal Code regarding the order of peremptory challenges.

The Court of Appeal dismissed the appeals, finding no error in the trial judge's exercise of discretion or jury instructions, and upholding the constitutionality of the jury selection provisions.

The accused was convicted of narcotics offences based on the viva voce evidence of a co-accused who had been arrested during an illegal search of a marijuana-growing operation.

The co-accused had pleaded guilty and volunteered to testify.

The Court of Appeal excluded the testimony under s. 24(2) of the Charter.

The Supreme Court of Canada allowed the Crown's appeal and restored the convictions, holding that the connection between the illegal search and the witness's decision to testify was too remote.

The Court distinguished between the discovery of inanimate objects and live witness testimony, noting that the witness's voluntary decision to cooperate severed the temporal and causal links to the Charter breach.

The appellant was convicted of second degree murder under the constructive murder provisions of the Criminal Code, which were subsequently struck down as unconstitutional.

After exhausting his appeals, the appellant applied for a writ of habeas corpus, arguing his continued detention violated the Charter.

The Supreme Court of Canada dismissed the appeal, holding that habeas corpus cannot be used as a collateral attack on a conviction by a superior court once the accused is no longer in the judicial system, and that the doctrine of res judicata applies.

The appellant appealed his conviction to the Supreme Court of Canada, arguing that the trial judge misdirected the jury on consciousness of guilt.

The Court of Appeal had previously found no substantial wrong and upheld the verdict.

The Supreme Court allowed the appeal, adopting the dissenting reasons of Dubin C.J. at the Court of Appeal, set aside the conviction, and ordered a new trial.

The appellant was charged with attempted murder as a party after being forced at gunpoint by a drug dealer to lure his friend to the lobby of an apartment building, where the friend was shot.

The appellant was acquitted of attempted murder but convicted of aggravated assault.

On appeal to the Supreme Court of Canada, the Court held that the trial judge erred in instructing the jury that duress could negate the mens rea for party liability under s. 21(1)(b) of the Criminal Code.

The Court clarified that duress operates as an excuse-based defence rather than negating mens rea, and that the common law defence of duress is unavailable if the accused had a safe avenue of escape, determined on an objective standard that considers the accused's personal circumstances.

The appeal was allowed and a new trial ordered.

The Crown appealed a decision of the Ontario Court of Appeal, which had allowed the accused's appeal from a sexual assault conviction.

The Court of Appeal found that the trial judge had wrongly based the conviction on preferring the complainant's evidence over the accused's, rather than determining whether the evidence established guilt beyond a reasonable doubt.

The Supreme Court of Canada dismissed the appeal, substantially agreeing with the majority of the Court of Appeal.

The appellant injected the deceased with cocaine, resulting in her death from cardiac arrest and asphyxiation.

He was convicted of unlawful act manslaughter.

On appeal, the appellant argued that the common law definition of unlawful act manslaughter, which requires only objective foreseeability of the risk of bodily harm rather than death, violates section 7 of the Charter.

The Supreme Court of Canada dismissed the appeal, holding that the objective foreseeability of the risk of bodily harm is the appropriate mens rea for manslaughter and accords with the principles of fundamental justice.

The Crown appealed a decision of the Ontario Court of Appeal that had stayed proceedings against several young offenders due to unreasonable delay.

The Supreme Court of Canada allowed the appeal, holding that the time required for an application to transfer a young offender to adult court is part of the inherent time requirements of a case under the Young Offenders Act.

Applying the Morin framework, the Court found the delay was not unreasonable and remitted the case to the Court of Appeal to dispose of the remaining issues.

Criminal appeal from an order setting aside an acquittal and directing a new trial after the trial judge limited both sides to four peremptory challenges and denied the Crown any stand bys.

The Supreme Court held, by majority, that the Crown's substantially greater ability to shape the jury through stand bys and peremptory challenges created a reasonable apprehension of partiality and infringed the accused's right to a fair hearing by an impartial tribunal under s. 11(d) of the Charter.

The infringement was not justified under s. 1.

The Court also held that statements made after counsel had been retained were properly excluded because the police response to the accused's inquiry about contact from his father was misleading in the circumstances.

The appeal was allowed and the acquittal restored.