Anthony Moustacalis

The accused, charged with multiple drug trafficking and proceeds of crime offences, brought a Charter application seeking a stay of proceedings.

He alleged that police used excessive force during his arrest, resulting in a sprained ankle, and that officers stole $5,000 in cash during the search of his apartment.

The court dismissed the excessive force claim, finding the takedown was justified and the injury incidental.

However, relying on the accused's weekly drug transaction log and video evidence of the search, the court found on a balance of probabilities that police stole $5,000 from a laundry hamper.

To denounce this serious police misconduct and preserve the integrity of the justice system, the court granted a stay of all proceedings.

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

The Crown had conceded it could not prove the appellant inflicted the fatal stab wound based on the evidence of a key witness alone, and advanced a theory of manslaughter.

The trial judge rejected this concession without notice and convicted the appellant of murder based on co-principal liability under s. 21(1)(a) of the Criminal Code.

On appeal, the Court of Appeal held that the trial judge's failure to clearly notify counsel that he was considering co-principal liability for murder, and his rejection of the Crown's concession without inviting submissions, deprived the defence of a meaningful opportunity to respond.

This lack of notice amounted to a miscarriage of justice.

The appeal was allowed and a new trial ordered.

The appellants, David Hui and Musab Saboon, appealed their convictions for kidnapping and first-degree murder of Lee Chiodo, as well as Hui's sentence for kidnapping.

Both were convicted after a trial by judge alone and sentenced to life imprisonment without parole eligibility for 25 years.

The appellants challenged the trial judge's credibility and reliability analysis of Marshall Hardy-Fox, a Vetrovec witness whose evidence was key to the convictions.

The appellants also argued the trial judge failed to apply the proper legal test for assessing credibility and provided insufficient reasons.

The Court of Appeal dismissed all appeals, finding no error in the trial judge's assessment of Hardy-Fox's evidence, proper application of the credibility test, and adequate reasons.

The court also dismissed Hui's sentence appeal based on the parity principle.

The Court of Appeal for Ontario dismissed Gerrard De Souza’s appeal from convictions for indecent assault and sexual assault.

The appellant raised three grounds of appeal, all relating to the trial judge’s assessment of credibility and reliability.

The Court found no error in the trial judge’s approach, holding that her findings were grounded in the evidence and not in stereotypes or improper reasoning.

The Court also found no error in the trial judge’s handling of inconsistencies in the complainant’s evidence or in her rejection of the defence theory of motive to fabricate.

The conviction appeal was dismissed.

The accused was found not criminally responsible for second-degree murder and appeared for his initial hearing before the Ontario Review Board.

The hospital and Crown recommended a detention order with conditions, noting the accused's bipolar disorder, history of medication non-compliance, and the serious nature of the index offence.

The Board found the accused remains a significant threat to public safety and ordered his continued detention at the hospital with modified conditions, including strict reporting requirements and a geographic restriction.

The appellant, D.R., appealed convictions for sexual assault, assault with a weapon, assault, and uttering threats, as well as the imposition of a lifetime SOIRA order.

The Court of Appeal dismissed the conviction appeal, finding no error in the trial judge’s reasoning or credibility assessments.

The court granted leave to appeal the sentence but dismissed the sentence appeal, holding that the evidentiary record was insufficient to substitute a 20-year SOIRA order for the lifetime order.

The appellant retains the right to apply to the Superior Court to vary the SOIRA order’s length.

The appellant, Akshay Prasad, sought to reopen his appeal from conviction for cocaine trafficking, based on fresh expert evidence concerning the unreliability of digitally enhanced audio recordings and transcripts due to "priming" and listener bias.

The Court of Appeal for Ontario dismissed the motion, finding the proposed expert evidence inadmissible at trial as it was not necessary and usurped the trier of fact's role.

The court also found the evidence not cogent and that due diligence was not met for its admission as fresh evidence on appeal, concluding there was no clear and compelling case of a miscarriage of justice to warrant reopening the appeal.

The appellant, David Holden, appealed his conviction for fraud over $5,000 and money laundering, and his 12-year sentence, in relation to a multi-million dollar Ponzi scheme.

The conviction appeal argued the trial judge impermissibly inferred guilt from fabricated evidence.

The sentence appeal challenged the application of aggravating factors and sought a reduction due to COVID-19 incarceration conditions.

The Court of Appeal dismissed both the conviction and sentence appeals, finding no error in the trial judge's reasoning regarding the conviction and upholding the sentence as fit given the extensive aggravating circumstances, including the large scale of the fraud, its devastating impact on victims, and the appellant's history of similar offenses.

The appellant, Benjamin MacAdam, appealed his conviction for possession for the purpose of trafficking and his sentence.

The appeal centered on the trial judge's handling of expert evidence regarding the quantity of drugs seized (112 grams of cocaine) and whether it was consistent with trafficking or personal use.

The Court of Appeal found that while the police officer expert was properly qualified, the trial judge erred by misapprehending the expert's testimony.

Specifically, the trial judge failed to adequately consider the expert's concession that the seized quantity could be consistent with personal use for a heavy user in a remote area, and improperly required the defence to establish hypothetical scenarios with proven facts to raise reasonable doubt.

The court concluded that the Crown had not discharged its burden of proving trafficking beyond a reasonable doubt.

The appellant, Harris Haidary, appealed his sexual assault conviction.

The Court of Appeal found that the trial judge erred by relying on an impermissible inference that Mr. Haidary had "tailored" his testimony to conform to the Crown's evidence.

This form of reasoning is legally wrong, absent exceptional circumstances not present here.

Furthermore, the trial was rendered unfair because Mr. Haidary was not given notice that such an inference could be drawn against him, depriving him of the opportunity to address it.

The court declined to apply the curative proviso.

The appeal was allowed, the conviction set aside, and a new trial ordered.

The appellant appealed his convictions for sexual interference and sexual assault against a 12-year-old complainant.

The appellant argued that the trial judge erred by relying on improper cross-examination, improperly analyzing witness evidence, failing to address inconsistencies in the complainant's evidence, and subjecting the appellant's evidence to unequal scrutiny.

The Court of Appeal dismissed the appeal, finding no errors in the trial judge's credibility assessments or treatment of the evidence.

The appellant, Andrew Campbell, appealed his convictions for kidnapping, pointing a firearm, and assault causing bodily harm, and his sentence.

The conviction appeal grounds included the trial judge's failure to recharge the jury on the reasonable doubt standard (R. v. W.(D.)) and failure to charge on the racial and cultural context of post-offence conduct.

The Court of Appeal dismissed the conviction appeal, finding no error in the jury charge or the decision not to recharge.

The sentence appeal challenged the calculation of credit for restrictive bail conditions (Downes credit).

The Court found no error in principle or calculation regarding the Downes credit and dismissed the sentence appeal.

The defendant, Astrit Shkurta, brought an application under s. 11(b) of the Charter of Rights and Freedoms for a stay of charges due to unreasonable delay.

The court applied the R. v. Jordan framework, calculating the total delay as 802 days.

After subtracting 286 days attributed to defence delay (including delays in Crown Pretrial Hearing (CPT) and Judicial Pretrial Hearing (JPT) scheduling, and lack of contact between the defendant and counsel), the net delay was found to be 516 days (16.96 months).

As this net delay was below the 18-month presumptive ceiling for the Ontario Court of Justice, the court found no s. 11(b) breach and dismissed the application.

The court also noted no evidence that the COVID-19 pandemic contributed to the delay in this specific case.

Rudolf Karicka, a Czech citizen of Roma ancestry, sought judicial review of the Minister of Justice's surrender order to the Czech Republic, where he faced a mandatory minimum two-year sentence for theft, violation of domestic freedom, and property damage, having been convicted in absentia.

He argued that surrender would shock the conscience or violate his s. 7 Charter rights due to alleged discrimination against Roma people, egregious delay, harshness of the sentence, and personal circumstances.

The Court of Appeal, applying a reasonableness standard, upheld the Minister's decision, finding no justification to refuse surrender as it was not contrary to the extradition treaty, unjust, oppressive, or a breach of Charter rights.

The court found the Minister reasonably addressed concerns regarding discrimination (noting improvements and lack of evidence of persecution), delay (attributable to the applicant's absconding), sentence severity (not shocking to Canadian conscience given Canadian equivalents), and personal circumstances (accommodations for health, balancing family interests with treaty obligations).

The appellant, S.M., appealed convictions on eight counts related to human trafficking for sex work and assault causing bodily harm, as well as the imposed sentence.

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

Key issues included the application of the s. 276 screening procedure to sex trafficking offences and the trial judge's credibility findings.

The court also addressed the appellant's argument regarding the trial judge's failure to consider systemic anti-Black racism in sentencing, finding no error as the issue was not raised at trial and no foundation was laid.

The appellant, Robert Freedland, appealed his conviction for counselling extortion.

The Crown's case relied heavily on the testimony of a key witness, Mr. James, whose credibility was central.

The Court of Appeal considered two main issues: the admissibility of non-expert opinion evidence from a store clerk and the trial judge's failure to provide a limiting instruction regarding Mr. James's prior consistent statements.

The court found that while the error regarding the non-expert opinion evidence was harmless, the failure to instruct the jury on the limited use of prior consistent statements constituted non-direction amounting to misdirection, which was not salvageable by the curative proviso.

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

This is an appeal from a sexual assault conviction.

The appellant challenged the verdict, arguing the trial judge misapprehended DNA evidence, leading to an unreasonable verdict.

The complainant had no memory due to extreme intoxication.

DNA tests revealed the appellant could not be excluded as the source of DNA found on the complainant's breast, external genitalia, and vagina.

While the trial judge accepted non-sexual transfer for some DNA, she rejected the submission that there was a rational basis to explain the DNA found inside the complainant’s vagina other than direct contact.

The Court of Appeal dismissed the appeal, finding no basis to interfere with the trial judge's conclusion regarding the DNA evidence and affirming the reasonableness of the verdict.

A sentence appeal was also dismissed as abandoned.

The accused, M.A., brought two post-conviction applications: one under s. 11(b) of the Charter for unreasonable delay, and another to reopen the trial or declare a mistrial based on ineffective assistance of counsel and fresh evidence.

The court found a Charter s. 11(b) violation due to excessive delay (totaling 57 months, well over the 18-month ceiling for provincial courts), staying the original four charges.

Regarding the second application, the court admitted fresh evidence from M.A. and three other witnesses, which seriously undermined the Crown's case.

The court found that trial counsel's decision not to call this exculpatory evidence was not a tactical decision but an error, leading to a miscarriage of justice.

Consequently, the findings of guilt on the remaining charges were set aside, and those charges were dismissed, as the new evidentiary matrix left the judge with a reasonable doubt as to M.A.'s guilt.

The applicant, the former Chief of the Thunder Bay Police Service, was charged with misconduct under the Police Services Act.

Prior to the hearing, the applicant resigned and brought a motion to quash the proceedings for lack of jurisdiction.

The respondent consented to the motion.

The Ontario Civilian Police Commission found that because the applicant had resigned, she was no longer a police officer under the Act, and pursuant to section 90(1), the Commission lost jurisdiction to proceed.

The misconduct counts were dismissed.

The appellant was convicted of dangerous driving and aggravated assault and appealed both conviction and sentence.

The Court of Appeal dismissed the conviction appeal and the sentence appeal for dangerous driving.

However, the sentence imposed for aggravated assault was found to be unlawful due to a postponed commencement of the jail term.

The court allowed the sentence appeal for aggravated assault, varying it to a suspended sentence, considering the appellant's positive contributions, employment, and successful completion of a prior conditional sentence and probation.