Bradley J. Greenshields

The Crown appealed an acquittal resulting from the exclusion of evidence of child pornography under s. 24(2) of the Charter.

The respondent was charged with possessing and accessing child pornography.

Police seized a family computer from the home co-owned by the respondent and his common-law spouse without a warrant, based on the spouse's consent.

The computer was retained for four months without judicial authorization before a warrant was obtained to search it.

The application judge found multiple Charter violations and excluded the evidence.

The Court of Appeal allowed the Crown's appeal on the basis that the application judge erred in finding the spouse could not consent to the seizure, and conducted a fresh s. 24(2) analysis, ultimately admitting the evidence and ordering a new trial.

The appellant was convicted of conspiracy to import and importing heroin following a jury trial.

He received concurrent sentences of 16 years in penitentiary, less 4 months pre-disposition credit.

On appeal, the appellant challenged his convictions on six grounds, including issues relating to the admissibility of hearsay evidence under the co-conspirators' exception, post-arrest statements, travel history evidence, and jury instructions regarding a Vetrovec witness.

The appellant also sought leave to appeal his sentence.

The Court of Appeal dismissed all grounds of appeal from conviction and, while granting leave to appeal sentence, dismissed the sentence appeal as well.

The applicant sought bail pending appeal under s. 20 of the Extradition Act after being committed for extradition to the United States on allegations of online child sexual exploitation and child luring.

Applying the s. 679 Criminal Code test as modified by the extradition context, the court held that although the appeal was not frivolous, the grounds were weak, the applicant failed to show he was not a flight risk, and continued detention was necessary in the public interest.

The court emphasized the expanded record alleging a broader pattern of systematic exploitation of numerous young female victims, the limits of the proposed electronic monitoring regime, and the risk of internet access despite house arrest.

Public safety and public confidence in the administration of justice both required continued detention.

The appellant appealed his convictions for two counts of possession of cocaine for the purpose of trafficking.

He argued the convictions were unreasonable because no cocaine was seized during the transactions and the substance could have been methamphetamine.

He also argued the trial judge erred by admitting intercepted communications without a Carter ruling.

The Court of Appeal dismissed the appeal, finding that the circumstantial evidence, including intercepted communications, police surveillance, and physical evidence found upon arrest, overwhelmingly established the substance was cocaine.

Although the trial judge erred in failing to make a Carter ruling, the error was harmless given the strength of the other evidence.

The Attorney General of Canada, on behalf of the United States, brought a second application for the extradition of the respondent on charges of cross-border internet child sexual exploitation.

The first committal order was quashed on appeal due to insufficient evidence linking the respondent to the IP address.

In this second application, relying on both American and Canadian-gathered evidence, the court found sufficient circumstantial evidence to support the reasonable inference that the respondent committed the offences using his laptop and IP address.

The respondent's applications for further disclosure and Charter exclusion having been dismissed, the court ordered his committal for extradition.

The applicant, Marco Viscomi, brought a Charter application to exclude Canadian-gathered evidence from a second extradition application, alleging unlawful residential searches, improper execution of searches, unauthorized forensic searches, unlawful detention of seized items, and a breach of the affiant's duty of candour in obtaining a search warrant.

The court dismissed the application, finding that the search warrants were lawfully issued, the forensic searches were authorized, the detention of items was not contrary to the Charter, and there was no material breach of the duty of candour.

While acknowledging potential minor Charter breaches related to arbitrary detention, the court concluded that these were not serious and had no meaningful impact on the lawfulness of the evidence seizure, thus not warranting exclusion under s. 24(2) of the Charter.

The appellant appealed his convictions for sexual interference, sexual exploitation, and sexual assault against his step-daughter.

He argued the trial judge erred in rejecting his evidence solely because he accepted the complainant's evidence, misapplied the burden of proof, and improperly ruled prior out-of-court statements inadmissible.

The Court of Appeal dismissed the appeal, finding the trial judge's reasons were sufficient, the burden of proof was properly applied, and the trial judge's credibility findings were sound despite the evidentiary ruling on prior statements.

In advance of a renewed extradition committal hearing, the applicant sought further police notes and investigative reports to challenge the admissibility of Canadian-gathered computer evidence on Charter grounds.

The court held that the governing threshold was an air of reality test, even where the requested disclosure related to Canadian-derived evidence that would be central to committal under s. 32(2) of the Extradition Act.

After reviewing the extensive disclosure already provided, the court found the applicant had more than adequate material to mount meaningful Charter arguments concerning the searches, seizures, detention orders, and related investigative steps.

There was no realistic possibility that additional disclosure would affect the outcome, and the application was dismissed.

The appellant was convicted of aggravated assault, possession of a weapon for a dangerous purpose, and assault following a brawl in a restaurant where he brandished a knife and a patron was stabbed.

The appellant testified he brandished the knife in self-defence and the stabbing was accidental.

The trial judge refused to leave self-defence to the jury, finding it incompatible with accident, and directed the jury that the first two elements of the weapons charge were proven.

The Court of Appeal allowed the appeal and ordered a new trial, holding that the trial judge usurped the jury's fact-finding function, erred in finding self-defence and accident incompatible, and improperly directed a verdict on essential elements.

The accused was charged with possessing and accessing child pornography.

He brought a Charter application alleging violations of section 8 (unreasonable search and seizure) and sought exclusion of computer-related evidence.

The court found that the police conducted a warrantless search of the accused's home computer relying solely on the consent of his common-law spouse, which was insufficient as a third party cannot waive another's Charter rights.

The police also failed to comply with sections 489.1 and 490 of the Criminal Code regarding the detention and reporting of seized property.

Additionally, the information to obtain the search warrant was misleading and incomplete.

The court excluded all computer-generated evidence and any derivative evidence.

The United States sought the extradition of the appellant for child luring based on internet communications traced to an IP address.

The extradition judge committed the appellant for extradition after inferring that the appellant was the user of the IP address at the relevant time because he was the subscriber.

The Court of Appeal held that this inference was unreasonable without further evidence linking the subscriber to the actual use of the device at the time of the offence, and quashed the committal order.

The Court also dismissed a constitutional challenge to the ex parte gathering and sending provisions of the Mutual Legal Assistance in Criminal Matters Act, finding they contained adequate safeguards to satisfy procedural fairness under the Charter.

The accused was tried before a judge alone on a charge of aggravated assault arising from a single punch delivered to a fellow inmate in a correctional cell.

The court held that the resulting facial injuries, including lasting impairment affecting vision and the victim's ability to defend himself, constituted maiming within s. 268 of the Criminal Code.

Applying the W.(D.) framework and the air of reality test, the court found both consent and self-defence were raised but disproved beyond a reasonable doubt.

The court rejected the accused's account that he acted defensively during a consensual confrontation and found instead that he struck to teach the complainant a lesson.

A finding of guilt was entered.

Three originating applications challenged the constitutional validity of the gathering-order and sending-order regime under ss. 18 and 20 of the Mutual Legal Assistance in Criminal Matters Act on the basis that the proceedings are presumptively ex parte.

The court held that s. 8 does not generally require inter partes proceedings at the investigative stage, and that the trans-border context does not alter the usual principles favouring confidentiality and expedition in criminal investigations.

Applying the contextual approach from Rodgers, the court found that the statutory scheme contains a broad array of judicial, ministerial, and remedial safeguards.

The absence of presumptive notice before a s. 20 sending order, and the inapplicability of Tse’s after-the-fact notice requirement, did not render the regime unconstitutional.

The applications were dismissed.

The applicant applied for bail pending his appeal of an order committing him for extradition to the United States on charges relating to child pornography and child luring.

The court found that the applicant was not a flight risk and that the public interest alone did not justify his continued detention.

However, the application for bail was dismissed because the applicant failed to raise an arguable ground of appeal from his committal order.

The court found the evidence was sufficient for committal and that subscriber information obtained without a warrant would not be excluded under s. 24(2) of the Charter.

The appellant was convicted of historical sexual abuse against his step-daughter and biological daughter.

He appealed the convictions, arguing the trial judge erred in assessing credibility by relying on improper cross-examination about motive to fabricate, failing to address inconsistencies, and improperly relying on the appellant's courtroom demeanour outside the witness box.

The Court of Appeal dismissed the appeal, finding the cross-examination was proper, the inconsistencies were minor, and the trial judge's modest reliance on courtroom demeanour did not cause a miscarriage of justice given the other cogent reasons for rejecting the appellant's evidence.

The applicant sought to re-open ex parte proceedings under the Mutual Legal Assistance in Criminal Matters Act (MLACMA) that resulted in Gathering and Sending Orders.

The applicant alleged material non-disclosure by the Attorney General regarding the legality of search warrants, the need for disclosure in extradition proceedings, warrantless seizure of subscriber information, and the authority to detain seized items.

The court found no material non-disclosure that would have altered the outcome or justified granting the applicant notice and standing at the MLACMA hearings.

The application to re-open was dismissed.

The appellant appealed his convictions for sexual assault and touching for a sexual purpose.

He argued the trial judge applied different standards of scrutiny to his evidence compared to the complainant's, and erred in drawing an adverse inference from his failure to call his father as a witness.

The appellant also sought to introduce fresh medical evidence explaining his father's absence.

The Court of Appeal dismissed the application to admit fresh evidence, finding it was a strategic decision at trial not to call the father.

The Court upheld the trial judge's credibility assessments and found no error in the limited adverse inference drawn regarding the missing witness.

The appeal was dismissed.

The appellant pleaded guilty to two counts of sexual assault.

The sentencing judge rejected a joint submission of 20 months and imposed a sentence of 5 years plus time served.

On appeal, the appellant argued the judge erred by not allowing further submissions before departing from the joint submission and by failing to give it significant weight.

The Court of Appeal agreed the judge erred procedurally, but found the 5-year sentence fit, as the proposed 20-month sentence would have brought the administration of justice into disrepute.

The appellant appealed his convictions for possession of heroin for the purpose of trafficking and possession of the proceeds of crime.

He argued that the information to obtain (ITO) the search warrant lacked sufficient reliable evidence and that the trial judge provided inadequate reasons for conviction.

The Court of Appeal dismissed the appeal, finding that the ITO contained sufficient information from confidential informants and police surveillance to justify the warrant.

The Court also held that despite the trial judge's brevity and misapprehension of a defence concession, the reasons were sufficient for appellate review given the uncontroverted evidence of trafficking indicia.

The young person appealed his convictions for robbery and aggravated assault, as well as his sentence, which included a 'serious violent offence' designation under the Youth Criminal Justice Act.

The convictions arose from an incident where the young person robbed the victim of a cell phone and subsequently assaulted him, resulting in the victim's finger being severed on a chain-link fence.

The Court of Appeal dismissed the conviction appeal, finding no error in the trial judge's conclusion that the risk of bodily harm was objectively foreseeable.

The Court also dismissed the sentence appeal, holding that the preliminary threshold for a serious violent offence designation is automatically met when serious bodily harm is caused, with foreseeability remaining a factor at the discretionary stage.