Friday, November 04, 2011

This Week at the Ontario Court of Appeal: 11-11-04

Each Week Wise Blog review recent decisions from the Ontario Court of Appeal


At trial, there were many contentious issues concerning the parties' separation. CS, appellant/father and JS, respondent/mother, were married for six years before their marriage ended in 2007. At the conclusion of their 25-day trial, the trial judge granted sole custody of the boys to the respondent, child support in the monthly amount of $4,816 based on the appellant's income of $300,000, and spousal support paid monthly by the appellant in the amount of $3,851. Further, the trial judge awarded costs in favour of the respondent in the amount of $254,500, with $10,000 designated as a support order. The appellant contested every order made by the trial judge that was not in his favour.

The Court rejected the appellant's claim that he was denied a fair trial as a result of the trial judge's refusal to admit audio tape conversations between the appellant and the respondent that the appellant's secretly recorded.  There was also a report by a social worker and testimony of the appellant's psychologist that he claimed the trial judge should have admitted as evidence. The Court noted that the trial judge was correct in taking account of sound public policy of trying to discourage the use of secretly recorded conversations in family proceedings. They also stated that the trial judge properly excluded the evidence of the social worker and psychologist as not being necessary under R. v. Mohan.

Additionally, the appellant argued that he was disadvantaged as a result of malicious prosecution. He claimed that the respondent abused the criminal justice system and interfered with his chances of obtaining a favourable custody order, when she accused him of physical abuse. The Court found no fault with the trial judge's application of the test set out in Nelles v. Ontario, to establish that the appellant failed to meet the test in relation to any of the charges.

The Court further did not accept the appellant's position that the trial judge erred in establishing the child support order. The appellant claimed that the legal costs associated with litigation of this matter had caused him to accumulate debt in the vicinity of 1-1.5 million dollars.  The Court concurred with the trial judge's assessment that the amount the appellant spent was "staggering" and "out of proportion".

Another issue on appeal concerned the costs award, and the extent it was designated as support for the purposes of being enforced through the Family Responsibility Office (FRO). The Court rejected the Appellant's claim that the trial judge's order of $10,000 was unwarranted.  They also dismissed the respondent's cross-claim that the entirety of the costs award ($254,500) should have been designated as support and thus enforceable by FRO.  The Court stated that the trial judge did his best to identify the portion of the trial consumed by the support dispute and assigned a cost amount for support that he deemed was fair.

At trial, the appellant, Kevin Madden, was convicted of first-degree murder in connection with the killing of his brother and attempted murder for the attempted slaying of his stepfather. The appellant appealed against his conviction of first-degree murder. The appellant submitted that his conviction should be set aside and a new trial ordered or in the alternative, that a verdict of second-degree murder be substituted.

The Court disagreed with the appellant's position that the trial judge erred in refusing to sever his trial from the trial of his co-accused, Timothy Ferriman.  In support of his position, the appellant contended that Ferriman's testimony from his first trial (ended in a mistrial) was necessary to enable him to make full answer and defence, particularly in relation to the issue of planning and deliberation. The appellant stated that Ferriman's evidence was significant because it supported his position that he did not kill his brother as a result of a pre-arranged plan. The Court concurred with the trial judge that Ferriman's testimony would not have affected the jury's verdict in a manner favourable to the appellant had it been admitted as evidence. 

Further, the Court stated that Ferriman's testimony from his first trial was highly suspect and did not conform with the contents of his email to his girlfriend or his phone conversation to her that was tape recorded after the incident.  In the email and phone call, Ferriman portrayed himself as an accessory to the appellant's plan to kill his brother, not the author of it. This evidence along with the evidence of the manner in which Johnathan was killed and of the appellant's attempt to kill his step father shortly thereafter, gave the Court not reason to doubt the trial judge's findings that the appellant's actions were planned and deliberate.

During the appellant's trial, the trial judge instructed the jury that he admitted certain hearsay evidence for the truth of its contents "out of fairness to the three accused persons". On appeal, the appellant claimed that the trial judge undermined the weight of that evidence in the eyes of the jury. The Court disagreed, and ruled the trial judge's explanatory remarks were harmless and occasioned no prejudice to the appellant.
- Alim Ramji, Toronto
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