Ariel Herscovitch

The appellant appealed his total sentence of 76 months for sexual exploitation, making child pornography, and voyeurism involving a 17-year-old complainant and multiple other victims secretly recorded in his home.

The appellant argued the trial judge erred by imposing a consecutive sentence for child pornography, treating elements of the offences as aggravating factors, and providing insufficient credit for harsh pre-sentence custody conditions.

The Court of Appeal dismissed the appeal, finding the overall sentence fit under the totality principle and noting the trial judge's discretionary decisions were entitled to deference.

The appellant appealed his sentence of 18 years imprisonment (less 50 months presentence custody) imposed after pleading guilty to twelve firearm-related offences, including two counts of discharge of a prohibited firearm with intent to prevent arrest, possession of a firearm while prohibited, dangerous driving, and possession of explosive substances.

The appellant argued that the sentencing judge erred by overemphasizing denunciation and deterrence, failed to properly consider mitigating factors including his guilty plea, and imposed an excessive sentence.

The Court of Appeal dismissed the appeal, finding the sentencing judge's decision reasonable and the sentence appropriate given the gravity of the offences and the need for an exemplary sentence.

The appellant was convicted of multiple offences, including robbery with a firearm, arising from a home invasion.

The Crown's case relied on circumstantial evidence, including the appellant's DNA on a pry bar left at the scene and his subsequent arrest in a stolen vehicle containing items taken during the robbery.

On appeal, the appellant argued the trial judge misapprehended identification evidence, failed to consider alternative explanations for the DNA evidence, and erred in finding a real firearm was used.

The Court of Appeal dismissed the conviction appeal, finding the trial judge's assessment of the circumstantial evidence was reasonable and the alternative explanations were speculative.

The sentence appeal was also dismissed.

The appellant sought leave to appeal his sentence of two years less a day for break and enter and careless storage of firearms, seeking the substitution of a conditional sentence.

The Court of Appeal found the sentence was not manifestly unfit and rejected claims of reasonable apprehension of bias.

However, the Court allowed the appeal in part to reduce the sentence by 41 days to account for pre-sentence custody credit.

The appellant, Jordan Osborne, appealed his first-degree murder conviction on two grounds: the voluntariness of his police statement and alleged abuse of process by the Crown.

The Court of Appeal upheld the trial judge's finding that the police statement was voluntary, concluding that no implicit inducement or misrepresentation rendered it involuntary, and that the confession was made due to the strength of the case.

The court also dismissed the abuse of process argument, finding no inconsistency in the Crown's position at trial compared to a co-accused's guilty plea, and no compromise to trial fairness or judicial integrity.

The appellant sought leave to appeal his sentence for multiple driving offences, including impaired driving by drug, dangerous driving, impaired driving by alcohol, failure to stop at the scene of an accident, and driving while prohibited.

He received a global sentence of 46 months imprisonment, less credit, and a 10-year driving prohibition.

The Court of Appeal granted leave but dismissed the appeal, finding that the sentencing judge properly considered the principles of totality and proportionality.

The court rejected arguments that the judge failed to consider the principle of gradualism or imposed an excessive sentence, emphasizing the appellant's serious criminal record and the nature of the offences, especially in light of legislative changes increasing maximum penalties for driving offences.

The appellant appealed his convictions for two counts of robbery, breaking and entering a dwelling house and committing robbery, and suffocating another person with intent to commit robbery.

The appeal raised two grounds: first, that the trial judge erred by not instructing himself on the frailties of eyewitness identification evidence, even when the witness purports to recognize someone known; and second, that the trial judge applied a different standard of scrutiny to the complainant's and the appellant's evidence when assessing credibility.

The Court of Appeal dismissed the appeal, finding that the complainant's extended interaction with the appellant reduced the chance of mistaken identity, and that the trial judge was entitled to weigh inconsistencies differently given their varying nature.

The appellant, convicted of trafficking two girls under 18, identity theft, and possession of property obtained by crime, appealed her conviction and sentence.

She sought an adjournment to find counsel, which was denied due to the appeal's age and previous opportunities to secure representation.

The appellant also challenged a mandatory lifetime SOIRA order imposed at sentencing, arguing it was unconstitutional following the Supreme Court of Canada's decision in *R. v. Ndhlovu*.

The Court of Appeal dismissed both the conviction and sentence appeals, holding that the SOIRA order could not be varied on appeal without a proper Charter application in the trial court, and declining to apply a new statutory appeal provision retrospectively.

The appellant, Waqar Ali, appealed his convictions for two counts of sexual assault and one count of assault causing bodily harm, and sought leave to appeal his global sentence of 22 months.

The appeal raised issues concerning an alleged s.11(b) Charter delay, the trial judge's decision to grant a similar fact application, the assessment of DNA evidence, and the credibility assessment of the appellant's testimony regarding his vehicle.

On sentence, the appellant argued the trial judge erred in finding a breach of trust as an aggravating factor.

The Court of Appeal dismissed all grounds of appeal, upholding both the conviction and the sentence, finding no errors in principle or demonstrably unfit sentence.

The accused was charged with multiple firearms offences after police found a loaded handgun in a bag left on a bar patio.

The accused brought a Charter application arguing that his rights under ss. 8, 9, 10(a), and 10(b) were violated during the police investigation.

The court found that the accused had not abandoned the bag and had a reasonable expectation of privacy in it, making the warrantless search a violation of s. 8.

The court also found that the accused was arbitrarily detained during a parole compliance check, violating s. 9, and that police breached his ss. 10(a) and 10(b) rights by failing to promptly advise him of the reasons for his detention and his right to counsel.

Applying the Grant framework under s. 24(2), the court concluded that the cumulative effect of the serious Charter breaches warranted the exclusion of the firearm.

Without the firearm, the Crown could not prove its case, and the accused was acquitted of all charges.

The appellant, E.H., appealed his sentence for multiple sexual offences against his young cousin.

The Court of Appeal found that the trial judge erred in principle by not giving sufficient mitigating weight to the appellant's acceptance of responsibility and expressions of remorse, despite his not formally pleading guilty, and by overemphasizing the absence of a formal guilty plea.

The court reduced the appellant's effective sentence of imprisonment from seven and a half years to five and a half years.

The Court of Appeal also addressed an unlawful lifetime Sex Offender Information Registration Act (SOIRA) order, noting it was legally defective due to a Supreme Court of Canada decision (R. v. Ndhlovu) but concluded it lacked jurisdiction to correct this error on a sentence appeal, advising the appellant to seek remedy from the trial court.

The court declined to vary a s. 161(1)(a.1) Criminal Code prohibition order.

The appellant, Nicholas Beauvais, appealed his convictions for possessing, accessing, and making child pornography available.

He argued that the trial judge failed to properly consider alternative inferences to his guilt, specifically that the child pornography was downloaded by another resident or by a third-party attacker via a virus.

The Court of Appeal found that the trial judge erred by dismissing these alternative inferences as "pure speculation" without adequately assessing the evidence, including conflicting testimony regarding laptop access and expert evidence about the virus's capabilities.

The court also found the trial judge attached undue weight to the "Moose" username and recycle bin evidence.

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

The appellant appealed his conviction, arguing that his guilty pleas were uninformed, and his dangerous offender designation, asserting that the sentencing judge failed to consider his treatment prospects at the designation stage.

The Court of Appeal dismissed both appeals.

The Court found that the appellant's guilty pleas were informed, as the facts underlying the Superior Court charges were part of the agreed statement of facts in the Ontario Court of Justice and the Crown had explicitly stated these matters would inform the dangerous offender application.

The Court also rejected the argument that using Superior Court facts in the dangerous offender proceeding constituted double punishment under s. 725 of the Criminal Code, clarifying that a dangerous offender hearing is not a "further proceeding" for that purpose.

Regarding the sentence appeal, the Court held that the sentencing judge's reasons, read as a whole, were consistent with the principles of considering treatability at the designation stage, as articulated in R. v. Boutilier.

Furthermore, the Court concluded that even if there was an error, the curative proviso would apply given the overwhelming evidence of the appellant's untreatability and high risk of recidivism.

The applicant sought to exclude evidence (drugs, cell phone data) seized from a motor vehicle, alleging breaches of sections 8, 9, and 24(2) of the Canadian Charter of Rights and Freedoms.

The court found that the initial warrantless seizure of the vehicle was lawful under section 489(2) of the Criminal Code, as it was offence-related property.

While there was a two-month delay in obtaining a search warrant for the vehicle and its contents, which constituted a breach of section 8 of the Charter, the court determined that this delay was not due to negligence or wanton disregard but rather the investigating officer's overwhelming workload and health issues.

Applying the R. v. Grant framework, the court concluded that the Charter breach was minor, did not itself produce the evidence, and did not significantly impact the accused's privacy interests, especially given the serious nature of the human trafficking charges.

Therefore, the admission of the evidence would not bring the administration of justice into disrepute, and the application to exclude was dismissed.

This is a sentencing decision for Salman Ahmed, who was convicted of second-degree murder.

The primary issue was determining the period of parole ineligibility, which carries a mandatory life sentence with a general 10-year ineligibility period, extendable up to 25 years under s. 745.4 of the Criminal Code.

The Crown sought 25 years, while the defence argued for 12 years.

The court considered the jury's recommendation (which was given little weight), the violent nature and circumstances of the carjacking and murder, and the offender's character, including his youth, first-time offender status, and challenging background, balanced against his poor conduct in custody.

The court ultimately imposed a life sentence with parole ineligibility set at 18 years, emphasizing deterrence and denunciation due to the use of firearms and forcible confinement.

Mohamud Dirie appealed his first-degree murder conviction, arguing the trial judge erred in admitting ante mortem hearsay statements and that the jury charge was unbalanced.

The Court of Appeal dismissed the appeal, finding no reversible errors in the pre-trial evidentiary rulings regarding the admissibility of the deceased's statements about fear and prior incidents, or in the trial judge's decision not to allow viva voce cross-examination of a witness on the voir dire.

The court also found the jury charge was fair and balanced, despite the trial judge's permissible expressions of opinion on the evidence.

The appellants, committed to trial for second-degree murder, successfully appealed a judicial review order that had quashed their preliminary inquiry judge's decision and directed committal for first-degree murder.

The Court of Appeal found the reviewing judge erred by substituting his view of the evidence for that of the preliminary inquiry judge, incorrectly identifying jurisdictional errors.

The preliminary inquiry judge had correctly applied the law and did not commit jurisdictional error by finding insufficient evidence for first-degree murder.

The appeal was allowed, the judicial review decision quashed, and the original committal for second-degree murder reinstated.

The accused was charged with firearm and drug offences after police found a loaded handgun and drugs in the center console of a vehicle he was driving.

The vehicle was registered to his mother.

The accused brought Charter applications alleging violations of his rights under ss. 8, 9, and 10(b).

The court found a violation of s. 10(b) due to a 2.5-hour delay in facilitating access to counsel but declined to exclude the evidence under s. 24(2).

At trial, the court acquitted the accused of all charges, finding the Crown failed to prove beyond a reasonable doubt that the accused knew the contraband was in the vehicle, as it was not in plain view and the Crown did not call the vehicle's owner to testify.

The accused, charged with armed robbery and related offences, brought a second application to review his detention order, alleging material changes in circumstances due to the COVID-19 pandemic and potential unreasonable delay under s. 11(b) of the Charter.

The court found that the detention centre had effectively managed the virus and the accused failed to show an increased risk of contracting COVID-19.

Furthermore, the court held that the potential delay was largely attributable to the defence and did not constitute a material change that would have affected the initial bail decision.

The application was dismissed, and the accused remained detained on the secondary and tertiary grounds.

The accused challenged the admissibility of cell phone evidence, including videos and images, on the basis of a Section 8 Charter violation (unreasonable search and seizure).

The court found that all four accused had standing to bring the challenge.

While the Information to Obtain (ITO) the search warrant for the cell phones was facially insufficient, the court considered additional information from an earlier search warrant (Appendix D) during the Section 24(2) Charter exclusion analysis.

The court determined that the Section 8 violation, though present, was not very serious, and while it had a significant impact on privacy interests, the societal interest in adjudicating the case on its merits, particularly given the reliable and important nature of the evidence (videos depicting illegal handgun possession), outweighed the breach.

Consequently, the application to exclude the evidence was dismissed.