Friday, November 19, 2010

This Week In The Ontario Court of Appeal: 10-11-19

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

R. v. C. An appeal on a set of convictions for Mr. C. which included possession of handguns and ammunition, assaults on the complainant and possession of cocaine for purpose of trafficking. Mr. C. appealed on the basis of an improperly admitted KGB statement and ineffective counsel.

The argued-to-be-improperly-admitted KGB statement was a videotaped statement from the complainant which she later retracted, claiming she was mad at Mr. C. for cheating on her, and also claiming she was high on Ecstasy when she made the statement. Mr. C. argued that the video recording did not meet the standards for a KGB statement, stating that there was no close-up view of the complainant so that the trial judge could assess her demeanour. The Court of Appeal rejected this argument, stating that the trial judge's record demonstrated that even without close-up view, the judge was able to assess the complainant's demeanour accurately.

Mr. C.'s argument of ineffective counsel was based on his trial counsel's agreement to file an Agreed Statement of Facts, which Mr. C. argued undermined evidence he had given at trial. The Court of Appeal also rejected this on the basis that Mr. C.'s behaviour at trial could generously be described as erratic and that his evidence consisted largely of a grandiose conspiracy theory. Read-the-whole-case rating: 3, mostly for the portion of the case dealing with the KGB statement, where Justice MacFarland does an excellent job discussing the issues in that area. The descriptions of Mr. C.'s behaviour are also, frankly, amusing in a grim sort of way.

R. v. Erez. An attempt by noted criminal attorney James Lockyer to conflate a number of argued procedural errors in a conviction for possession of cocaine for purpose of trafficking - none of which on their own would overturn the case - into a cumulative miscarriage of justice. The Court disagreed on all points.

The appellants' various complaints include:

An accusation of bad character evidence when the trial judge allowed the Crown to lead evidence about the accused's income from gambling, borrowing money and pawning of jewelry, which the Court found did not qualify as the trial judge did not allow the witness in question to testify about the accused's illegal gambling activities.

An accusation of bad character evidence regarding the appellant's then-current stay in jail and the fact that he had previously been on parole. The Court noted that the trial judge offered defence counsel multiple opportunities to ask for a mid-trial instruction to the jury, which were declined, and agreed with the respondent Crown's argument that defence's willingness to allow the accused's parole experience on the record was a tactical choice.

An argument that the co-defendant gave evidence in his submissions to the jury by stating that the accused "commanded" him to commit illegal acts and that he lied to the police (allowing the inference that this was to protect the accused). The court rejected this argument noting that the trial judge instructed the jury to disregard any implication made by the co-defendant. Read-the-whole-case rating: 2.5. A bunch of smaller sub-issues make for an interesting set of data points, but only to those interested in criminal law.

Duffin v. NBY Enterprises Inc.. An appeal regarding whether a motion judge unreasonably dismissed the plaintiffs' action because they were two days late in paying the cost component of an earlier court order.

This was an action regarding defaulted mortgages on property where the plaintiffs alleged that the notices of sale on the defaulted properties (which they previously owned before they defaulted on the mortgages) were defective and the resulting sales improvident. The plaintiffs sought to maintain certificates of pending litigation and to obtain interim possession and were unsuccessful. The defendants then moved to dismiss the action on grounds of delay. The plaintiffs were granted an adjournment on the motion, but over a month after the date of the adjournment had still not filed responding material.

The plaintiffs then asked for a further adjournment, after removing their lawyer as solicitor of record, in order to find new counsel. The judge granted the adjournment, but only on a set of terms, one of which was paying counsel appearing for each of the defendants $2,000 by a set date for costs thrown away. The plaintiffs would eventually satisfy all of the conditions except the timely payment of costs thrown away, paying the various counsels two days after the deadline set by the judge. The defendants asked for a motion to dismiss the action as the plaintiffs had not complied with the terms, and the motion judge agreed and dismissed the action.

The Court of Appeal overturned the motion judge's decision even though discretionary orders such as this motion are traditionally granted a high level of deference from appellate courts. They did so for three reasons. Firstly, they cited the Rules of Civil Procedure, which state that the rules "shall be liberally construed to secure the just, most expeditious and least expensive determination of every civil proceeding on its merits." Secondly, they pointed out that the defendants would suffer no prejudice if the order was relieved against the plaintiffs' non-compliance, whereas the plaintiffs would suffer prejudice as they would not get a chance to properly argue their case. Finally, the Court pointed out that in this case the breach of terms was relatively minor. Read-the-whole-case rating: 3. Appeals of this sort are not that common and readable decisions regarding them less so.

- Christopher Bird, Toronto
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