Anthony Moustacalis

Two sets of proposed interveners sought to be added as parties to two separate criminal appeals in order to cross-examine witnesses and tender evidence regarding the jury panel selection process.

The court dismissed the motions to add them as parties, noting that adding strangers as parties to a criminal appeal is inappropriate.

However, the court granted the applicants intervener status as friends of the court and, exceptionally, exempted them from the usual condition of accepting the record as it exists, allowing them to potentially augment the record and cross-examine witnesses.

The appellant, a paralegal, was convicted of theft, forgery, and fraud after stealing personal injury settlement funds from vulnerable clients.

He was sentenced to 23 months' incarceration and ordered to pay $141,752 in restitution.

He appealed the restitution order, arguing the trial judge failed to consider his inability to pay.

The Court of Appeal dismissed the appeal, holding that in cases of breach of trust, the claims of the victims are paramount.

The court found the trial judge properly considered the appellant's future employment prospects and the lack of evidence regarding the whereabouts of the stolen funds.

The appellant sought leave to appeal his summary conviction on two grounds related to his right to counsel under s. 10(b) of the Charter.

He argued that s. 10(b) ensures a minimum level of competency from duty counsel and that police should have facilitated a further call.

The Court of Appeal dismissed the application, noting that the Supreme Court of Canada has held police have no obligation to monitor the quality of legal advice, and duty counsel is not a state actor.

The second ground was dismissed due to an insufficient evidentiary record.

The appellant appealed his conviction, arguing that the search warrant should be quashed because the information to obtain it included irrelevant and improper references to the facts underlying his prior murder acquittal.

The Court of Appeal held that while the references were improper, their inclusion was not so flagrant as to amount to an abuse of the search warrant process.

After excising the impugned references, there remained an ample basis for granting the warrant, and no breach of section 8 of the Charter was found.

The appellant appealed his convictions and sentence for trafficking in cocaine, possession of the proceeds of crime, offering to sell cocaine, and possession of cocaine for the purpose of trafficking.

At trial, the appellant's primary defence was mistaken identification, claiming he did not sell drugs to the undercover officer and offering exculpatory explanations for circumstantial evidence.

The Court of Appeal found no error in the trial judge's appreciation of the evidence or legal analysis, noting the trial judge's conclusions were reasonable and grounded in the evidence.

The sentence appeal was also dismissed, as the sentence was appropriate given the seriousness of the offences, the appellant's lengthy record, and the paramount considerations of denunciation and deterrence.

The appellant, a lawyer, was convicted of laundering the proceeds of crime after agreeing to launder money for an undercover officer posing as a representative of a Colombian drug cartel.

He appealed his convictions, arguing that wiretap evidence should have been excluded due to Charter breaches.

The Court of Appeal dismissed the conviction appeal, finding the wiretap authorization was validly issued.

The Crown appealed the three-year sentence.

The Court of Appeal allowed the Crown's appeal and increased the sentence to five years, emphasizing that the appellant's status as a lawyer and his willingness to abuse solicitor-client privilege were significant aggravating factors.

The Crown appealed a one-year conditional sentence imposed on the respondent for aggravated sexual assault.

The respondent, who was HIV-positive, engaged in unprotected sexual intercourse with his girlfriend on two occasions without disclosing his status.

The Court of Appeal found that the sentencing judge erred in imposing a conditional sentence, as it failed to reflect the gravity of the offence, the breach of trust, and the principles of denunciation and deterrence.

The court held that aggravated sexual assault involving HIV non-disclosure generally requires a custodial term.

The appeal was allowed, and the sentence was varied to 12 months' incarceration followed by three years' probation, accounting for time served.

The appellants were convicted of first-degree murder in a contract killing.

At trial, the judge instructed the jury that lies told by one of the appellants to the police could be used to infer his participation in a murder scheme, rather than merely a carjacking scheme as the defence argued.

The Court of Appeal held this was a misdirection, as the post-offence conduct had no probative value in determining the level of culpability between manslaughter and murder.

The error tainted the convictions of all three appellants.

The appeals were allowed, convictions quashed, and a new trial ordered.

The appellant was convicted of sexual assault causing bodily harm and sexual assault.

During deliberations, the jury asked a question about how to weigh reasonable doubt against the credibility of the complainant and the accused.

The trial judge instructed the jury to first decide what they believed, then find the facts, and finally apply the reasonable doubt standard to those facts.

The Court of Appeal held that this instruction misstated the law as set out in R. v. W.(D.), because it failed to explain that the jury must acquit if they are unable to decide whom to believe, and that reasonable doubt applies to the totality of the evidence.

The appeal was allowed and a new trial ordered.

The applicants sought judicial review of the Minister's decision to order their surrender to the Republic of Hungary.

However, the applicants failed to surrender into custody as required by their bail orders and could not be located by their counsel or surety.

The Court of Appeal concluded that the applicants had absconded and dismissed the application for judicial review as abandoned.

The applicant sought judicial review of the Minister of Justice's decision to surrender him to the Czech Republic to face charges relating to the production and possession of methamphetamine.

The applicant argued that his surrender would be an abuse of process due to his status as a police informer, alleged police corruption, and the risk of an unfair trial.

The Court of Appeal dismissed the application, finding that the Minister's factual conclusions were well-founded and that he did not err in his analysis of whether the surrender would breach the principles of fundamental justice or section 44 of the Extradition Act.

The appellant challenged convictions for sexual assault, sexual touching of a young person, and inviting a young person to touch him for sexual purposes, arguing multiple errors in the jury charge and seeking relief from a four-month custodial sentence.

The Court of Appeal held that the trial judge properly prevented the jury from speculating about collusion where no evidentiary foundation had been laid through cross-examination, and that the charge, read as a whole, adequately conveyed the defence position and the relevance of prior inconsistent statements to credibility.

On sentence, the court found no misapprehension of the psychologist’s evidence, no error in principle, and no basis for a conditional or intermittent sentence given the breach of trust, criminal record, and need for denunciation.

The conviction appeal was dismissed, leave to appeal sentence was granted, and the sentence appeal was dismissed.

The appellant was convicted of second degree murder and attempted murder following a stabbing incident outside a tavern.

He appealed his convictions and his sentence of life imprisonment with 25 years of parole ineligibility.

The Court of Appeal found that the trial judge erred in instructing the jury on the mens rea for attempted murder, as it requires a specific intent to kill.

Consequently, the attempted murder conviction was set aside and replaced with a conviction for aggravated assault.

The court dismissed the remaining grounds of appeal, finding no reversible error in the trial judge's instructions on recklessness, responses to jury questions, or conduct of the trial.

The 25-year parole ineligibility period was upheld given the appellant's extensive violent criminal record and the unprovoked nature of the offences.

The appellant appealed a conviction on the basis of the trial judge's response to a jury request for transcripts of three main witnesses.

The trial judge informed the jury that the request could not be met and they had to be specific, effectively foreclosing the option of refreshing their memory on all the evidence.

The Court of Appeal held this was a reversible error, set aside the conviction, and ordered a new trial.

The applicant sought judicial review of a decision by the Deputy Registrar of the Alcohol and Gaming Commission refusing a temporary extension of its liquor licence for the Taste of the Danforth event.

The Deputy Registrar had previously recommended revoking the applicant's licence due to alleged infractions and relied on this to deny the extension.

The court found the Deputy Registrar confused her prosecutorial role with her discretionary role under s. 97 of Regulation 719.

The decision was quashed and remitted for a new decision.

The appellant was convicted of aggravated assault, threatening death, and obstructing justice after slashing two victims with an Exacto knife in their home.

On appeal, he argued the trial judge erred in admitting his statements to police, excluding evidence of a victim's complete criminal record, refusing to allow comment on a victim's failure to testify, and permitting his own criminal record to go to the jury.

The Court of Appeal dismissed the conviction appeal, finding no reversible errors in the trial judge's evidentiary rulings or jury instructions.

The sentence appeal was also dismissed, as the eight-year term was justified given the serious nature of the assaults and the appellant's lengthy criminal history.

The appellant appealed a decision dismissing his application under the Fraudulent Conveyances Act regarding a property transfer from the respondent to his wife.

The Court of Appeal dismissed the appeal, finding that the appellant's argument regarding beneficial ownership was raised for the first time on appeal and lacked necessary factual findings.

Furthermore, the court upheld the application judge's conclusion that the respondent did not have the requisite intent to defraud, as he had sufficient income to meet his liabilities and the appellant knew of the transfer.

The Crown appealed a conditional sentence imposed after a guilty plea to incest arising from repeated sexual abuse of a minor placed in the respondent's home as a foster child and half-sister.

The Court of Appeal held the sentencing judge erred in treating the offender as outside a loco parentis relationship and in making comments suggesting the complainant's maturity was relevant.

However, applying s. 718.2(e) of the Criminal Code and the Gladue and Wells principles, the court found the offender's extreme Indigenous background circumstances, severe abuse history, voluntary disclosure, guilty plea, and genuine rehabilitative efforts justified a reformatory sentence to be served in the community.

The appeal was allowed in part by increasing the sentence to two years less one day, lengthening probation to two years, and imposing strict house arrest and other more punitive conditions.

The appellant appealed his conviction for sexual assault, raising issues regarding Crown counsel's conduct, jury instructions on post-offence conduct, the handling of a juror's complaint, and the failure to charge the jury on honest but mistaken belief in consent.

The Court of Appeal dismissed the conviction appeal, finding no errors by the trial judge and noting that Crown counsel's cross-examination was not abusive.

The Crown cross-appealed the conditional sentence of two years less a day.

The Court of Appeal dismissed the sentence appeal, citing the restrictive conditions, the narrow scope for appellate intervention, and the delay in perfecting the appeal.

The appellant appealed his conviction and six-month custodial sentence for an offence involving a young teenager.

He argued the trial judge erred in admitting similar fact evidence.

The Court of Appeal dismissed the conviction appeal, finding the trial judge properly weighed the probative value against the unfair prejudice.

The sentence appeal was also dismissed, as the trial judge made no error in principle given the breach of trust involved.