Wednesday, October 29, 2014

The Hearing Clinic v. 866073, 2014 ONSC 5831

"Sincerely believed memories that are innocently incorrect become more problematic for the court than do intentional lies."

Tuesday, October 28, 2014

Substitution of conviction for acquittal

R. v. Riesberry, 2014 ONCA 744:

[35]       Where this court allows a Crown appeal from an acquittal entered by a judge sitting alone, s. 686(4) of the Criminal Code authorizes this court to set aside the verdict and either order a new trial or enter a guilty verdict. The Crown asks that we enter guilty verdicts on all charges, or, in the alternative, order a new trial.

[36]       To obtain an order setting aside an acquittal and directing a new trial, the Crown must demonstrate that the trial judge committed an error of law, and that the outcome of the trial might reasonably have been different if the error of law had not occurred (R. v. Graveline, 2006 SCC 16 at paras. 14-16).

[37]       To obtain an order setting aside an acquittal and entering a guilty verdict on appeal, s. 686(4)(b)(ii) requires the Crown to go further and prove that "the accused should have been found guilty but for the error in law." This is possible only where all the necessary findings of fact have been made for each element of the offence (either implicitly or explicitly), or if the facts are not in issue (R. v. Cassidy, [1989] 2 S.C.R. 345 at 354).

Elder heating up seal in an Igloo

Of the Law Societies of Upper Canada and Nunavut

Presumption of honesty

Legg v. Simcoe Muskoka Catholic District School Board, 2014 ONCA 745 is a good source for the principle that someone who asserts dishonesty must establish it:

[9] The law presumes that persons act honestly until the contrary is proved. (Blair v. Consolidated Enfield Corp., [1995] 4 S.C.R. 5, at para. 35) There was no admissible evidence of dishonest conduct before the application judge.