Alexander M. Ostroff

The Ontario Review Board held an annual hearing for the accused, who was previously found not criminally responsible for second-degree murder.

The hospital and the accused requested that community living within the GTA be added to his privileges, which the Crown opposed.

The Board noted the accused's positive progress, adherence to treatment, and lack of aggression.

The Board granted the addition of a community living privilege in supportive housing, along with indirectly supervised privileges in the community, to allow for careful reintegration and assessment of independent living skills.

The appellant appealed firearm convictions arising from two mass shooting incidents and challenged the dismissal of a s. 11(b) Charter application.

The court held that the trial judge acted within his discretion in permitting a late Leaney application, where the prejudice caused by the Crown’s delay was cured by an adjournment and further disclosure.

Applying Jordan, the court upheld the deduction of periods attributable to defence delay, discrete exceptional circumstances, and pandemic-related delay, leaving the net delay below the presumptive ceiling.

The court also found the trial reasons on identity sufficient, given the combined force of police familiarity evidence, video evidence, and corroborative evidence linking the appellant to the vehicles and participants.

The appellant appealed his conviction for second-degree murder, arguing the trial judge erred by dismissing his application to sit at counsel table rather than in the prisoner's box.

The Court of Appeal dismissed the appeal, taking the opportunity to clarify the legal framework for courtroom seating.

The Court held that an in-custody accused is presumed to sit in the prisoner's box, though trial judges retain discretion to permit alternative seating based on security, trial fairness, and the ability to make full answer and defence.

The Court found the trial judge's decision was reasonable and that standard jury instructions adequately mitigate any potential stigma associated with the prisoner's box.

The appellant appealed convictions for sexual assault, sexual interference, invitation to sexual touching, and possession of child pornography, raising three grounds including that the application judge erred in dismissing his s. 11(b) Charter application.

The Court of Appeal found that the application judge incorrectly characterized multiple periods of delay as defence delay, applying a bright-line rule later rejected by the Supreme Court in Hanan.

Properly calculated, the net delay exceeded the 18-month Jordan ceiling by nearly three months, and the Crown failed to establish exceptional circumstances.

The convictions were quashed and a stay of proceedings entered.

The Ontario Review Board conducted an annual review of the accused's disposition.

The accused, who was previously found not criminally responsible for assault with a weapon and mischief, was subject to a detention order at the Centre for Addiction and Mental Health.

All parties, including the accused, the hospital, and the Attorney General, consented to continuing the existing detention order with no changes.

The Board heard evidence from the treating psychiatrist and agreed to continue the detention order, including a community living clause to motivate the accused's progress.

The appellant appealed his convictions on the ground that the application judge erred in dismissing his application for a stay of proceedings based on unreasonable delay.

The Court of Appeal agreed that the time from when the second trial date was set until the first offered trial date available to defence counsel should have been apportioned rather than treated entirely as defence delay, but held that the time from the July 2022 proposed trial date to the second trial date was properly defence delay.

With the corrected apportionment, the net delay fell just under 30 months, below the presumptive ceiling, and no stay was warranted.

The appellant was convicted of sexual assault and assault against his former wife.

He appealed on the narrow ground that the trial judge erred in refusing to allow the defence to pursue additional electronic messages during cross-examination of the complainant.

The trial judge required that any application for third-party disclosure of such messages be brought under s. 278.1 of the Criminal Code prior to trial, not mid-trial.

The Court of Appeal dismissed the appeal, finding that although the trial judge made some factual errors in his ruling, his ultimate decision to foreclose the mid-trial application was justified as a proper exercise of trial-management powers.

The applicant sought certiorari to quash a ruling by a Justice of the Peace that committed the applicant to trial in the Superior Court without a preliminary inquiry.

The applicant was charged with dangerous driving causing bodily harm, an indictable offence eligible for a preliminary inquiry.

Due to miscommunication between Crown counsel and defence counsel, both parties mistakenly believed the charge was ineligible for a preliminary inquiry.

The Justice of the Peace, relying on this misinformation, transferred the matter to Superior Court without affording the applicant the statutory right to a preliminary inquiry.

The Superior Court found this constituted a breach of natural justice and jurisdictional error, granted the certiorari application, and ordered the matter returned to the Ontario Court of Justice for a preliminary inquiry.

The appellant, Rasha Al-Enzi, appealed her 11-year sentence for kidnapping with a prohibited firearm and robbery with a restricted firearm, both arising from home invasions.

The Court of Appeal reviewed the aggravating and mitigating factors considered by the sentencing judge, including the seriousness of the offences, the presence of children, and the appellant’s personal circumstances.

The appellant argued for concurrent sentences and raised concerns about the treatment of her parenthood as an aggravating factor.

The Court found no error in the sentencing judge’s exercise of discretion, held that consecutive sentences were appropriate, and dismissed the appeal.

The Court of Appeal for Ontario considered the appeals of Rushawn Anderson and Nicholas Rhoden from convictions for attempted murder and aggravated assault.

The appellants argued that the trial judge erred in admitting out-of-court statements, in his rulings on Charter violations, in instructing the jury on fabrication, and that the verdicts were unreasonable.

The majority dismissed the appeals, finding the fabrication instruction sufficient and the verdicts reasonable.

In dissent, Gomery J.A. would have allowed the appeals, finding the fabrication instruction flawed and the verdicts unreasonable, and would have substituted acquittals.

The Ontario Review Board held a mandatory review hearing for an accused found not criminally responsible for second-degree murder.

The accused, diagnosed with a schizophrenia spectrum disorder and substance use disorder, had remained stable on a secure forensic unit but refused injectable antipsychotic medication.

The Board found the accused remained a significant threat to public safety.

The Board ordered a detention disposition at the hospital with expanded privileges for indirectly supervised hospital grounds access, but denied indirectly supervised community passes due to the severity of the index offence and the need for further medication trials.

The Court of Appeal for Ontario allowed J.C.'s appeal in part, setting aside his designation as a dangerous offender and substituting a designation as a long-term offender, while upholding the determinate sentence and 10-year long-term supervision order (LTSO).

The court found that the trial judge erred by failing to consider intractability at the designation stage, as required by R. v. Boutilier, but found no reviewable error in the trial judge’s findings regarding the patterns of behaviour or assessment of the criminal record.

The Court of Appeal for Ontario dismissed the conviction and sentence appeals of Corey and Curtis Murray, who were convicted of second degree murder in the death of Trevor Seraphine.

The main issues on appeal concerned the police failure to preserve certain surveillance video evidence and the Crown’s late disclosure of the loss of this evidence.

The court found that while the loss of evidence breached the appellants’ Charter rights, the trial judge’s remedial jury instructions were adequate and a stay of proceedings was not warranted.

The court also upheld the 20-year parole ineligibility periods, finding them fit in the circumstances.

The appellant appealed his conviction on three counts of historical sexual assault against his niece.

He argued that the trial judge materially misapprehended the evidence by misinterpreting his testimony and overlooking internal inconsistencies in the complainant's evidence.

The Court of Appeal dismissed the appeal, finding no palpable and overriding error in the trial judge's assessment of credibility and reliability.

The appellant, Roger Wain Foreshaw, appealed his conviction for second-degree murder, raising six grounds of appeal.

Key issues included the trial judge's prohibition of cross-examination on a witness's record suspension, the absence of a Mayuran instruction regarding an alleged confession, the application of the Browne v. Dunn rule, alleged misstatements of evidence in the jury charge, errors in the third-party suspect instruction, and a finding of no s. 10(b) Charter breach.

The Court of Appeal dismissed the appeal, finding that while the trial judge erred in prohibiting cross-examination on the record suspension, this error did not result in a substantial wrong or miscarriage of justice.

The court upheld the trial judge's decisions on the other grounds, affirming the conviction.

The appellants, Roslyn Blake and Claire Graham, appealed their convictions, seeking a stay of proceedings due to unreasonable delay under section 11(b) of the Charter, relying on the framework established in *R. v. Jordan*.

The Court of Appeal assumed, without deciding, that Ms. Graham's net delay could exceed 30 months.

However, the court upheld the trial judge's finding in Ms. Blake's case that the complexity of the matter justified the delay beyond the presumptive ceiling, noting that this assessment was equally applicable to both co-accused appellants.

The court emphasized the deference owed to the trial judge's expertise in assessing case complexity.

The appeals were dismissed.

This addendum addresses the appropriate forum for sentencing Shawn Cargioli after the Court of Appeal vacated his first-degree murder conviction and substituted it with second-degree murder.

The Court considered arguments from both Mr. Cargioli, who sought sentencing by the Court of Appeal, and the Crown, who requested remittal to the trial court.

Despite the passage of time since the original trial and sentencing, the Court found that the trial court was the more suitable forum, particularly given the Crown's anticipation of a contested sentencing proceeding involving substantial evidence, victim impact statements, and potential "Gardiner" hearings.

The Court ordered the matter remitted to the trial court for sentencing on the second-degree murder conviction.

The appellants, Shawn Cargioli, Kendell Kamal, and Famien Morrisson, appealed their murder convictions stemming from the stabbing death of Shadi Taleb during a planned robbery.

Cargioli was convicted of first-degree murder, while Kamal and Morrisson were convicted of second-degree murder.

The appeals raised various grounds, including the admissibility of expert evidence, trial judge's rulings on witness testimony, admissibility of police statements, jury instructions on after-the-fact conduct, misapprehension of evidence, the co-conspirator's exception to the hearsay rule, and jury instructions on liability for manslaughter, murder, and first-degree murder.

The Court of Appeal dismissed the appeals of Morrisson and Kamal, affirming their convictions and sentences.

For Cargioli, the court found a reversible error in the first-degree murder instruction regarding the contemporaneity of mens rea and actus reus for active participation.

Given the Crown's concession, the court substituted a conviction for second-degree murder for Cargioli and remitted the matter for sentencing.

The Crown appealed the conditional sentence imposed on the respondent for serious firearms and drug offences, including possession of a prohibited firearm, pointing a firearm, and cocaine trafficking.

The Court of Appeal found that the sentencing judge erred in principle by misunderstanding the "true crime" characterization of the offences and by misapprehending mitigating factors.

The court emphasized that possession of a loaded handgun is a serious offence normally attracting a penitentiary term, and the mitigating factors in this case were not strong enough to warrant a conditional sentence.

The appeal was allowed, the original sentences were set aside, and a total effective sentence of four and one-half years of imprisonment was imposed.

The appellant, convicted of second-degree murder, appealed on two grounds: the constitutionality of the amended s. 232(2) of the Criminal Code regarding provocation, and alleged errors in the trial judge's jury charge on the Not Criminally Responsible (NCR) defence.

The Court of Appeal declined to rule on the constitutional question, finding it was raised tactically for the first time on appeal and lacked an air of reality.

The court also found no reversible error in the NCR instructions, clarifying that the jury was properly guided on the disjunctive nature of the s. 16 test.

The appeal was dismissed.