Anil K. Kapoor

Three appellants were convicted of first-degree murder in the 2018 shooting death of Nnamdi Ogba.

The appellants appealed on seven grounds, including challenges to jury instructions on modes of participation, admissibility of expert gang evidence, after-the-fact conduct evidence, firearm videos, W.(D.) instructions, Browne v. Dunn breaches, and jury roll compilation errors.

The Court of Appeal found that the jury instructions on modes of participation under sections 21(1)(b) and 21(2) of the Criminal Code were deficient and that there was no air of reality to section 21(2) liability.

The court allowed the appeals, set aside the convictions, and ordered a new trial.

The court upheld the admissibility of expert gang evidence and other evidentiary rulings.

The appellant, Mustafa Ahmed, was convicted of second degree murder following a judge-alone trial.

The case involved a fatal shooting during a bar altercation, captured on CCTV.

The trial judge rejected Ahmed’s claims of self-defence and provocation, finding his testimony not credible or reliable.

On appeal, Ahmed argued that the trial judge made palpable and overriding errors in assessing the CCTV evidence and misapplied the law regarding his subjective beliefs.

The Court of Appeal found no such errors and dismissed the appeal.

The Court of Appeal for Ontario dismissed Riley Kostuk’s appeal from his conviction for second degree murder.

Kostuk argued that his right to counsel under s. 10(b) of the Charter was violated, that the trial judge erred in admitting evidence of prior discreditable conduct, and that evidence of his schizophrenia was improperly admitted or not properly limited.

The court found no error in the trial judge’s rulings, holding that the appellant had an operating mind when consulting counsel, that the prior conduct evidence was properly admitted for motive and identity, and that the references to mental health did not prejudice the trial.

The appeal was dismissed.

The appellant, J.A., appealed his conviction for sexual assault and sexual interference following a judge-alone trial.

The appeal challenged the trial judge's assessment of the appellant's and complainant's (S.M.) evidence, specifically regarding the implausibility of the appellant's film project as a ruse and the credibility of S.M. despite his criminal record and the timing of his disclosures.

The Court of Appeal dismissed the appeal, upholding the trial judge's credibility findings, emphasizing the deference owed to trial judges in such assessments, and finding no error in the trial judge's reasoning or her reliance on common-sense inferences.

The appellant, Alexsander Budimirovic, appealed his conviction for two counts of fraud and one count of attempted fraud.

The appeal raised four grounds: the trial judge's failure to give a limiting instruction on propensity reasoning between counts, error in admitting videotaped hearsay statements (Hockett Statements) for their truth, failure to caution the jury about relying on the Hockett Statements without corroboration, and refusal to grant an adjournment after the appellant discharged his counsel.

The Court of Appeal dismissed all grounds of appeal, affirming the trial judge's instructions on propensity reasoning, the admissibility of the Hockett Statements based on procedural reliability, the adequacy of the caution regarding the statements, and the proper exercise of discretion in refusing the adjournment.

The appellant, Stephen Tello, appealed his convictions for conspiracy to import cocaine, trafficking cocaine, and possession of proceeds of crime, and his 15-year sentence.

The Court of Appeal for Ontario dismissed both the conviction and sentence appeals.

The court found no errors in the trial judge's instructions on multiple counts, the co-conspirator's exception to the hearsay rule, or the PGP messages.

The court also refused to allow a new Charter issue regarding the PGP messages to be raised on appeal, finding the decision not to raise it at trial was tactical and no miscarriage of justice would result.

The sentence was deemed fit, emphasizing general deterrence and denunciation for large-scale drug offences.

The appellant, Kyle Sparks MacKinnon, appealed his conviction for second-degree murder and wounding, arguing the trial judge erred in admitting a dying victim's statement as a spontaneous utterance or under the principled hearsay exception, and in the jury instructions regarding its treatment.

The Court of Appeal dismissed the appeal, finding the statement admissible as a spontaneous utterance due to its spontaneity and the victim's state, and that the jury instructions were adequate.

The court affirmed the trial judge's finding that no "special features" undermined the statement's reliability.

The Crown appealed the acquittal of the respondent for second-degree murder, where the trial judge found the respondent acted in self-defence.

The Crown argued the trial judge erred in law by failing to consider the whole of the evidence, making an unsupported factual finding, failing to undertake a contextualized reasonableness inquiry, and not considering the risk to third parties.

The Court of Appeal dismissed the appeal, finding no overriding error in the trial judge's holistic consideration of evidence and self-defence factors, despite acknowledging a minor factual error that did not materially impact the verdict.

The court reiterated that appellate courts cannot reweigh evidence or hear appeals from unreasonable acquittals.

The appellant, Brian Glen Kerr, appealed his convictions for attempting to obstruct justice and two counts of counselling to commit murder.

The central issue was the admissibility and scrutiny of evidence provided by a jailhouse informant, Richard Busch, and the validity of a warrant to intercept communications.

The appellant argued the warrant was not based on credible, compelling, and corroborated evidence, and that the trial judge erred in not excluding the intercepted conversation due to the affiant's failure to disclose sentencing considerations given to the informant.

The Court of Appeal dismissed the appeal, finding that the trial judge properly applied the Debot criteria for warrant validity and that the omission in the information to obtain was inadvertent, not an abuse of process.

The appellants, Alton Grant and Shaqwan Kawano, appealed their first-degree murder convictions.

The Court of Appeal found that the trial judge erred in instructing the jury on how to assess exculpatory eyewitness identification evidence, specifically regarding a key witness whose testimony arguably contradicted the Crown's theory of identity.

This error was deemed serious and not curable.

The court dismissed Grant's Charter s. 11(b) application for unreasonable delay and found the verdict against him was not unreasonable.

However, due to the misdirection on eyewitness identification, the appeals were allowed, and new trials were ordered for both appellants.

The appellant, Max Edwin Tutiven, appealed his conviction for second-degree murder and sought leave to appeal his sentence of life imprisonment with parole ineligibility for 16 years.

The appeal raised five grounds: juror impartiality, instruction on post-offence conduct, adequacy of the W.(D.) instruction, reasonableness of the verdict, and sentencing error regarding mitigating factors.

The Court of Appeal dismissed all grounds, upholding the conviction and sentence, finding no errors in the trial judge's rulings or the jury's verdict.

The appellant appealed convictions for sexual assault and sexual interference.

The Court of Appeal found that the trial judge erred in assessing the complainant's credibility by finding a lack of motive to fabricate, which was not supported by evidence and improperly bolstered the complainant's testimony.

The court also addressed the standard for production of Children's Aid Society records, noting a lower privacy interest than counselling records.

The appeal was allowed, and a new trial ordered due to the credibility assessment error.

The Crown appealed a decision granting the accused a preliminary inquiry.

The accused was charged with offences carrying a maximum 10-year sentence, but the Crown indicated intent to seek a dangerous offender designation, which could lead to indefinite detention.

The lower courts held that this potential indefinite detention entitled the accused to a preliminary inquiry under s. 535 of the Criminal Code, interpreting "punishable by 14 years or more of imprisonment" to include the overall penal jeopardy.

The Court of Appeal allowed the Crown's appeal, holding that s. 535 unambiguously refers to the maximum sentence of the *offence charged*, not the potential outcome of a subsequent dangerous offender proceeding.

The court emphasized that dangerous offender proceedings are separate and relate to the offender, not the offence, and that the lower courts' interpretation contradicted Parliament's intent to restrict preliminary inquiries and would lead to absurd results contingent on prosecutorial discretion.

This is a decision on an application for leave to intervene by the Criminal Lawyers’ Association of Ontario (CLA) in a Crown appeal.

The underlying appeal concerns the interpretation of section 535 of the Criminal Code regarding an accused's entitlement to a preliminary inquiry when facing potential dangerous offender proceedings or increased penalties under section 718.3(8)(c).

The court granted the CLA leave to intervene on the argument that a preliminary inquiry should be granted if an accused faces a potential total sentence of 14 years or more, approaching the calculation from a totality perspective.

However, the court denied intervention on arguments related to the direct applicability of section 718.3(8)(c) as a gateway to a preliminary inquiry and the requirement for pre-election Crown notice, deeming these new issues outside the scope of the appeal and lacking a proper factual record.

The appellant, Jan Talaga, appealed his conviction for criminal harassment.

The core issue on appeal was whether the trial judge erred in denying a mistrial and instead re-opening the trial after finding that Talaga was deprived of effective assistance of counsel regarding his right to testify.

The trial judge had initially convicted Talaga, then set aside the verdict to allow him to testify, and subsequently re-convicted him.

The appeal court reviewed the trial judge's discretionary decision, considering the narrowness of the disputed issues, the lack of prior adverse credibility findings against Talaga, and the circumstantial nature of the Crown's case.

The court found no reversible error in the trial judge's decision to continue the trial rather than declare a mistrial, emphasizing that a mistrial is an extraordinary remedy reserved for the "clearest of cases."

The appellant appealed a conviction for two counts of human trafficking and one count of assault.

The trial judge admitted two video-recorded statements of the complainant after she recanted at trial.

The appellant argued the trial judge erred in admitting the statements and provided insufficient reasons for rejecting the complainant's trial testimony.

The Court of Appeal upheld the conviction, finding no error in the admission of the statements and determining that the trial judge's reasons adequately explained why the prior statements were accepted and the trial testimony rejected.

The appellant appealed his conviction for first degree murder entered by a jury following a trial before Justice Bruce G. Thomas.

The appeal raised three grounds: (1) an error in jury selection involving the substitution of static triers on the second day of jury selection without statutory authority; (2) the trial judge's error in leaving section 231(6) of the Criminal Code (constructive first degree murder based on criminal harassment) as a basis for conviction when the evidence was insufficient; and (3) inadequate jury instructions on the elements of section 231(6).

The Court of Appeal dismissed the appeal, finding that while errors occurred, they caused no substantial wrong or miscarriage of justice given the overwhelming evidence supporting a conviction for planned and deliberate first degree murder.

The appellant was convicted of three counts of assault with a weapon, one count of aggravated assault, and one count of assault following a jury trial.

He appealed his conviction on grounds that the trial was unfair due to self-representation despite requesting counsel, and that the trial judge failed to provide proper limiting instructions on prior consistent statements and multi-count indictment evidence.

The Court of Appeal found that the trial judge erred by failing to provide a limiting instruction on the complainant's prior consistent statements made to her family doctor, mother, and family lawyer.

The court determined this error was fatal given the centrality of credibility, the substantive details of the statements, and the Crown's closing address inviting the jury to infer truthfulness from consistency.

The appellant was arrested while attempting to facilitate a drug transaction with an undercover officer.

He claimed to be acting as a police agent under the direction and control of a detective.

The trial judge dismissed the appellant's O'Connor application for third-party police records, found no air of reality to the police agent defence, and refused to leave it with the jury.

The appellant was convicted of trafficking.

On appeal, the appellant challenged the trial judge's rulings on the O'Connor application, the air of reality finding, the jury instructions, and the Crown's closing submissions.

The Court of Appeal dismissed all grounds of appeal and upheld the conviction.

The appellant appealed his convictions for firearm and driving offences arising from discharging a handgun on a residential street and leading police on a high-speed chase.

He also appealed his sentence of 10 years.

On the conviction appeal, the appellant argued the trial judge erred in her approach to evidence, misapprehended evidence, engaged in improper speculation, and improperly used disbelief of his statement as circumstantial evidence of guilt.

The Court of Appeal rejected these arguments, finding the trial judge conducted a meticulous review of all evidence and that the verdict was reasonable based on substantial circumstantial evidence.

On the sentence appeal, the appellant argued the sentencing judge misapprehended evidence regarding a jammed gun and gang involvement, and that consecutive sentences for firearm possession offences were inappropriate.

The Court of Appeal dismissed both appeals, finding the overall sentence clearly fit given the serious nature of the offences and the appellant's criminal record.