Andrew Anthony Furgiuele

The defendant, Jason Lusted, pleaded guilty to manslaughter after a preliminary inquiry into a second-degree murder charge.

The victim, Earl Clapp, died after being dragged under Lusted's vehicle during an attempted trailer theft.

The court considered aggravating factors, including Lusted's extensive criminal record, history of dangerous driving, and high moral blameworthiness, alongside mitigating factors such as a difficult childhood and drug addiction.

The judge imposed an 18-year prison sentence, with deductions for pre-trial custody (Summers and Duncan credits), resulting in an additional 14 years to serve.

The Crown applied under s. 683(5) of the Criminal Code to suspend two conditional sentence orders (CSOs) imposed on the respondents, who were convicted of failing to provide necessaries of life.

The Crown argued that serving the CSOs before the appeal hearing would prejudice its sentence appeal, which sought penitentiary sentences.

The respondents opposed, arguing the Crown had not shown merit and that suspension was not in the interests of justice.

The court dismissed the Crown's application, finding that the "interests of justice" did not favour suspending the CSOs, noting that re-incarceration after a sentence is served is not inevitable and that the impact of served house arrest conditions could be considered on appeal.

The applicant, charged with sexual assault and sexual exploitation, sought a stay of proceedings under section 11(b) of the Charter due to unreasonable delay.

The court determined the total delay was 19 months and 19 days, exceeding the 18-month presumptive ceiling for provincial court cases.

The court found the delay was primarily attributable to the Crown's failure to provide timely and complete disclosure, despite diligent efforts by the defence.

Even if the delay fell below the ceiling, the court found it unreasonable given the defence's proactive steps and the Crown's apathy.

The application was granted, and the charges were stayed.

This is an appeal from convictions for sexual assault, assault, and criminal harassment.

The Court of Appeal found that the trial judge committed an error of law by discounting the accused's credibility on the basis that his evidence was "tailored" to fit Crown disclosure or evidence heard in court.

The court reiterated that such an inference is impermissible as it turns constitutional rights against the accused.

The error was deemed prominent in the trial judge's credibility assessment, which was the central issue.

The appeal was allowed, and a new trial was ordered.

The appellant, Bismark Barrett, appealed his 30-month sentence for possession of cocaine for the purpose of trafficking.

He sought a conditional sentence, arguing that the sentencing judge took an unduly narrow view of the impact of the Covid-19 pandemic on inmates, specifically regarding the risk of infection and the negative impact of institutional measures like lockdowns and program suspensions.

The Court of Appeal dismissed the appeal, finding no error in the sentencing judge's discretionary decision not to reduce the sentence based on Covid-19 related deprivations.

The Crown appealed the acquittal of the respondent on a sexual assault charge, asserting errors in the trial judge's articulation and application of consent law, and insufficiency of reasons.

The Court of Appeal dismissed the appeal, finding that the trial judge correctly set out the law on consent and that the reasons were sufficient, particularly as the acquittal rested on the Crown's failure to prove lack of consent beyond a reasonable doubt due to the complainant's unreliability.

The appellant, Matthew Shedden, appealed his convictions for various drug offences, arguing that the search warrant used to obtain evidence was invalid.

The challenge at trial, which contended there were no reasonable and probable grounds to believe drugs would be found at the residence (his mother's home), was unsuccessful.

The Court of Appeal dismissed the appeal, finding that even if the trial judge applied an incorrect legal standard or provided insufficient reasons, the record amply supported the valid issuance of the search warrant.

The court concluded that reasonable inferences could be drawn from the appellant's observed conduct, including frequent visits to the residence between suspected drug transactions, to establish the necessary reasonable grounds.

The appellant was convicted of several sexual offences.

During his trial, he was briefly excluded from the courtroom while counsel discussed the admissibility of questions about his prior sexual history.

The trial judge ruled in the appellant's favour, prohibiting the questions.

On appeal, the appellant argued this exclusion violated his right to be present at trial under s. 650(1) of the Criminal Code and ss. 7 and 11(d) of the Charter.

The Court of Appeal found a breach of s. 650(1) but applied the curative proviso under s. 686(1)(b)(iv) of the Criminal Code, concluding the appellant suffered no prejudice due to the brevity of the exclusion and the favourable ruling.

The court declined to apply a Charter analysis, finding the Criminal Code framework sufficient for non-egregious breaches.

The appellant pleaded guilty to possession of a narcotic for the purposes of trafficking.

The Crown conceded the appeal, acknowledging that trial counsel unintentionally misled the appellant regarding the immigration consequences of his guilty plea, which were central to his decision.

The Court of Appeal allowed the appeal, set aside the guilty plea, quashed the conviction, and ordered a new trial.

The appellant, convicted of importing fentanyl and possession for the purpose of trafficking, appealed his convictions and sentence.

The Court of Appeal for Ontario dismissed the conviction appeal, affirming the trial judge's application of wilful blindness to both the nature and origin of the controlled substance.

The court also dismissed the sentence appeal, upholding the 15-year global sentence, finding the comparison of fentanyl to heroin for sentencing purposes to be apt, and emphasizing the principles of denunciation and general deterrence given the drug's extreme danger and quantity.

The victim surcharge was set aside.

The appellant appealed convictions for multiple historical sexual offences against the daughter of his former common law partner, alleged to have occurred between the complainant’s ages of five and sixteen.

The appeal argued that the trial judge committed three errors in assessing the appellant’s evidence: drawing a negative inference from his lack of recollection of a potential CAS investigation, improperly relying on demeanour when evaluating his denials, and criticizing his failure to address specific allegations.

The Court of Appeal held that the trial judge’s concerns about the appellant’s explanations were logical and permissible and that his treatment of the denials was consistent with the framework in R. v. W.(D.).

The court further held that the trial judge ultimately based the convictions on a reasoned acceptance of the complainant’s credible and reliable testimony beyond a reasonable doubt.

The appeal was dismissed.

During a re-trial for second-degree murder, the accused brothers sought to have the partial defence of provocation left to the jury.

The principal shooter, John, argued he was provoked by the victim's threats.

The court found an air of reality to John's claim, despite evidence of prior threats and preparation.

However, the court ruled that provocation is not available in law to an aider, Mato, as it only applies to the person who committed the murder.

Furthermore, there was no air of reality to provocation for Mato based on the evidence.

In a pre-trial ruling for a second-degree murder case, the court determined the appropriate jury selection procedure following the enactment of Bill C-75, which abolished peremptory challenges.

The defence proposed combining the challenge for cause and stand-aside inquiries.

The court rejected a combined approach but permitted a limited expansion of the challenge for cause questions.

The court established a procedure where, after the challenge for cause, a specific question is asked to assess juror competence, allowing counsel to make submissions on whether the judge should exercise the enhanced stand-aside power under s. 633 of the Criminal Code to maintain public confidence in the administration of justice.

The Crown brought an application regarding the jury selection procedure for a second-degree murder trial during the COVID-19 pandemic.

The Crown proposed that the Sheriff divide the jury panels into smaller groups in the absence of the accused, arguing the proposed 'B.C. Model' violated the Criminal Code.

The court dismissed the Crown's application, finding that dividing the panels in the absence of the accused would violate their right to be present at trial under section 650(1) of the Criminal Code.

The court adopted the B.C. Model, which allows for random selection and identification of jurors in open court with the accused present, while accommodating physical distancing requirements.

The appellant appealed his conviction for sexual assault arising from an incident at a cottage where both parties were highly intoxicated.

The appellant argued the trial judge erred in rejecting his defence of honest but mistaken belief in consent based on his failure to take reasonable steps and his self-induced intoxication.

The Court of Appeal found no error in the trial judge's conclusion that the appellant took no steps to ensure the complainant was awake and consenting, and that his belief was anchored in his own intoxication.

The appeal was dismissed.

The appellant appealed his conviction and six-month sentence for sexual assault.

He argued the trial judge erred in admitting the legally blind complainant's video recorded statement as her evidence-in-chief under s. 715.2 of the Criminal Code, and in excluding evidence of prior sexual history under s. 276.

The Court of Appeal dismissed the appeal, finding no error in the trial judge's evidentiary rulings or application of the W.(D.) principles, and upheld the sentence and mandatory sex offender registry order.

The appellant appealed his summary conviction for indecent exposure under s. 173(2) of the Criminal Code.

The charge arose from an incident where the appellant exposed his penis to a minor in a public parking lot.

The appellant argued the trial judge failed to consider the defence of accident and reversed the burden of proof when assessing his testimony.

The Superior Court of Justice dismissed the appeal, finding that while the trial judge did not explicitly mention the defence of accident, the reasons as a whole demonstrated he was alive to the issue.

The court also found that although the trial judge erred in commenting on the appellant's failure to explain why witnesses would lie, the error was harmless and the curative proviso applied given the formidable Crown case.

The appellant appealed his conviction for trafficking methadone after a fellow resident at a transition home fatally overdosed on methadone supplied by the appellant.

The appellant argued the trial judge erred in dismissing his s. 11(b) Charter application for unreasonable delay and misapprehended DNA expert evidence regarding the transfer of the deceased's DNA to the appellant's methadone bottle.

The Court of Appeal dismissed the appeal, finding the trial judge correctly applied the Jordan framework, properly excluded verdict deliberation time, and reasonably concluded that a mistaken trial estimate constituted an exceptional circumstance.

The Court also found no misapprehension of the expert evidence, as the trial judge's findings were supported by the totality of the evidence.

The applicant brought a pre-trial motion to compel the Crown to disclose details regarding police "pointer car" designations, arguing its relevance to a Charter Section 9 arbitrary detention issue.

The applicant was detained solely because he was driving a vehicle designated as a "pointer car" which may have been an outdated and incorrect designation.

The court found the evidence concerning the purpose, implementation, and removal procedures of the pointer car designation system to be "obviously relevant" to assessing the constitutional validity of the detention.

The motion was allowed, and the Crown was ordered to disclose all requested information.

The appellant, Jeremy Gough, appealed his conviction for first-degree murder, arguing that the trial judge erred by allowing the Crown to rely on post-incident conduct evidence (attending Tim Hortons, sending texts, delivering a skating form) as relevant to intent and planning/deliberation, and by failing to provide a limiting instruction to the jury.

The Court of Appeal dismissed the appeal, holding that the post-incident conduct evidence was relevant and admissible.

The Court found a positive link between the appellant's pre-offence and post-incident conduct, which formed part of a continuous scheme to distance himself from the crime, thereby attenuating the reasoning risks typically associated with such evidence and negating the need for a specific cautionary instruction.