Friday, November 12, 2010

This Week In The Ontario Court of Appeal: 10-11-12

Each week at Wise Law Blog, we review decisions from the Ontario Court of Appeal.

R. v. Ranger. A criminal appeal where the appellant defendants argued that the K.G.B. statements of two witnesses crucial to their conviction were too unreliable and should not have been considered by the trier of fact.

K.G.B. statements are statements made by witnesses who then later recant those statements, but are considered allowable when they fulfill the test set out in R v. B.(K.G.), which requires that the statement be made under oath or affirmation following a warning by police that false statements can be punished severely under law, that the statement be videotaped and that the opposing counsel have the opportunity to cross-examine the witness at trial. All of these qualifications applied in this case: however, since K.G.B. statements fall under the principled hearsay rule, they can always be disqualified if opposing counsel can demonstrate that their prejudicial value outweighs their probative value as evidence.

In this case, everybody up to and including the Court of Appeal agreed that the two witnesses were thoroughly disreputable and had a history of dishonesty. However, the Court of Appeal disagreed that this alone was enough to disqualify the two witnesses' statements, as the statements corroborated one another, and there was no evidence to demonstrate any sort of collusion to deceive on the part of the witnesses. Thus, the Court dismissed the appeal of conviction. Read-the-whole-case rating: 2.

Toronto Dominion Bank v. Hylton. A case where Mr. Hylton, the appellant, argued that a summary judgement granted against him in favour of TD Bank - where the Bank claimed a debt from Mr. Hylton for approximately $81,000 - was incorrect because Hylton in fact only owed TD approximately $14,000 of that money, and the rest was owed to TD by a business employing Mr. Hylton.

My. Hylton was self-representing, and failed to appear on two return dates or file a proper defence against the bank's motion. His brother appeared for him at both motion hearings, explaining that Mr. Hylton was sick and could not travel. (Mr. Hylton had multiple broken ribs and had just undertaken the care of his recently deceased sister's children.) The trial judge granted a summary judgement in favour of the bank on the grounds of Mr. Hylton's lack of response.

At appeal, Mr. Hylton argued that his statement of defence was misunderstood and that the business owed the bulk of the monies. The Court allowed this fresh evidence on the grounds that serious personal circumstances affected the ability of Mr. Hylton to act with due diligence, and because the Court felt that the new evidence materially affected the outcome of the trial. (Justice Sharpe concurred with the majority, but disagreed that the motion judge erred in granting summary judgement based on Mr. Hylton's behaviour.), Read-the-whole-case rating: 3. It's an interesting look into some of the issues surrounding self-representation.

- Christopher Bird, Toronto

I'll chime in with a note about the Court's ruling in R. v. Simon, if only for Justice Watt's rather well-crafted preamble, which borrows nicely from the genre of pulp fiction - with great, dramatic effect:
Handguns and drug deals are frequent companions, but not good friends. Rip-offs happen. Shootings do too. Caveat emptor. Caveat venditor. People get hurt. People get killed. Sometimes, the buyer. Other times, the seller. That happened here.
Kind of makes you want to read on, now, doesn't it?
- Garry J. Wise

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