Bradley W. Miller

The appellant, Aghayere Justin Omoragbon, sought leave to appeal a global sentence of seven years (net four years after pre-sentence custody credit) for 11 offences, including firearms and drug trafficking.

The Court of Appeal for Ontario dismissed the appeal, finding no demonstrable unfitness or error in principle in the trial judge's sentencing.

The court upheld the trial judge's diminished weight given to youth as a mitigating factor due to the appellant's lengthy record and escalating seriousness of offences, affirmed the application of the totality principle, and rejected the claim for enhanced credit for lockdown days without evidence of adverse effect.

The appellant was convicted of impaired driving causing bodily harm and sentenced to 39 months in jail.

At trial, the Crown had requested a sentence of two years less a day, while the defence sought an intermittent sentence.

The trial judge imposed 39 months without notifying defence counsel that he was considering a sentence significantly higher than the Crown's position.

On appeal, the Court of Appeal found this lack of notice to be a procedural error.

The court varied the sentence to two years' imprisonment, followed by three years of probation, accommodating the appellant's request to serve his sentence in a penitentiary.

The appellant appealed his conviction for break and enter and theft, which was based entirely on circumstantial evidence.

The Court of Appeal found that the evidence, while suspicious, was equally consistent with the appellant becoming involved with the stolen vehicle after the break-in and thefts had occurred.

The court determined that the inferences necessary to prove possession of the vehicle or participation in the initial crimes could not be reasonably drawn, and therefore, the trier of fact could not reasonably be satisfied that guilt was the only reasonable conclusion.

The appeal was allowed, and acquittals were entered.

The appellant was convicted of two counts of sexual assault and appealed both conviction and sentence.

The Court of Appeal dismissed the conviction appeal, finding no error in the trial judge's similar fact evidence ruling or credibility assessment.

The court also dismissed the sentence appeal, deeming the 14-month concurrent sentence fit given the serious nature of the crimes against very young victims.

The appellant appealed his sentence of six years, less credit for pre-sentence custody, received after convictions for impaired driving, dangerous driving, failing to stop while pursued by police, and driving while disqualified.

The appellant argued the trial judge erred by failing to fully apply Gladue principles when considering his criminal record, suggesting previous sentences established an artificially high baseline.

The Court of Appeal found no basis to interfere with the sentence, noting the trial judge carefully reviewed the Gladue report, considered systemic factors, and that the "step up" principle was not applied.

The paramount consideration was the protection of other road users.

The appeal was allowed only to the extent of setting aside the victim surcharge; in all other respects, it was dismissed.

The appellant, Jessy Herlichka, appealed his conviction for second-degree murder, arguing three errors by the trial judge: flawed instructions on the defence of intoxication, refusal to qualify a proposed defence expert in a specific area of expertise, and an inadequate curative instruction after a Crown witness suggested the appellant murdered the victim.

The Court of Appeal dismissed the appeal, finding no reversible error in the trial judge's instructions on intoxication, the limitation of expert testimony, or the curative instruction, concluding that the jury was properly equipped to determine the requisite state of mind for murder.

The appellant appealed convictions for possession and accessing child pornography, and a 10-year prohibition order, arguing errors in the trial judge's s. 24(2) Charter analysis regarding the admissibility of evidence obtained from an invalid search warrant.

The Crown conceded the s. 8 Charter breach.

The Court of Appeal upheld the trial judge's decision to admit the evidence, finding no reviewable error in the assessment of the seriousness of the state conduct (negligent drafting of the information to obtain, not bad faith), the significant impact on Charter rights, and the strong public interest in adjudication on the merits.

The court also dismissed the appeal against the 10-year prohibition order, finding no error in principle or unreasonableness.

The appellant, Thanh Tung Phan, appealed his conviction for first-degree murder.

The appeal raised two main grounds: an alleged error in the disposition of a Garofoli application concerning the judicial authorization for surveillance and tracking, and an error in admitting evidence of a history of violence between rival gangs (Chin Pac and Asian Assassinz) to establish motive.

The Court of Appeal found no error in the Garofoli ruling, concluding that the authorizing justice had reasonable and probable grounds even after excising inaccurate information from the Information to Obtain (ITO).

The court also found no error in admitting the gang evidence, determining its probative value for narrative, animus, and motive outweighed its prejudicial effect, especially given the trial judge's careful instructions and the manner of admission.

The moving parties sought a stay of a Superior Court order for the sale of real property, pending appeal to the Court of Appeal for Ontario.

The underlying order stemmed from an application under the Substitute Decisions Act concerning the alleged mismanagement of an incapable person's financial affairs by her attorneys.

The Court applied the three-part RJR-Macdonald test for a stay.

It found that the moving parties failed to demonstrate a serious question to be tried, as they had no plausible grounds of appeal, having failed to attend the lower court hearing or properly engage with the court's powers under the Substitute Decisions Act.

Furthermore, they did not establish irreparable harm, as they did not reside at the property and had minimal financial investment.

The balance of convenience favored the responding party, as the property's maintenance was depleting the incapable person's assets.

Consequently, the motion for a stay was dismissed, and costs were awarded to the responding party.

The appellant, Stewart Pascal, appealed his conviction for sexual assault causing bodily harm and his designation as a dangerous offender.

The appeal centered on the Crown's failure to disclose the criminal record and outstanding charges of a key Crown witness, Deidre Jarvis.

The Court found that the police knew about Jarvis's outstanding charges and had a disclosure obligation to provide this information to the Crown, who then had to disclose it to the defence.

The non-disclosure deprived the defence of crucial impeachment material, as Jarvis's second statement, given after charges were laid, was significantly more incriminating than her first.

The Court concluded that the non-disclosure impaired the appellant's right to make full answer and defence, affecting both the reliability of the verdict and the overall fairness of the trial.

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

The appellant appealed convictions for sexual interference and sexual assault of his daughter, arguing that the trial judge misapprehended evidence concerning his sex offender treatment.

The majority of the Court of Appeal found that the trial judge's factual error regarding the date of the appellant's treatment was material, impacting the assessment of his propensity to re-offend and the weight given to similar fact evidence.

This misapprehension played an essential part in the reasoning leading to the conviction.

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

A dissenting judge argued the error was not material to the overall reasoning.

Joseph Haddad appealed a disposition of the Ontario Review Board, which ordered his detention at a forensic mental health centre subject to conditions, specifically challenging a condition prohibiting him from attending within 250 metres of his mother's home.

Haddad was found not criminally responsible for an index offence involving discharging a shotgun.

The Board's decision to impose the condition was based on concerns for public safety, psychological harm to neighbours, and the appellant's transition to community living.

The Court of Appeal dismissed the appeal, deferring to the Board's reasonable decision, noting that the condition served to address victim safety and was not a significant restraint on the appellant's liberty, especially as his physician did not recommend visits to the family home.

The applicant, Clara Eva Boros, sought judicial review of the Minister of Justice's order to surrender her to Romania for extradition.

The Minister's decision regarding the significant delay in the extradition process, spanning over 18 years, was found to be unreasonable due to a lack of transparent investigation into when Romanian authorities became aware of the applicant's presence in Canada and an insufficient explanation for the delay on the Canadian side.

The Court of Appeal allowed the application, remitting the matter back to the Minister for reconsideration with specific directions for further inquiry and explanation regarding the delays.

The appellant, R.M., appealed his convictions for sexual assault with a weapon, uttering threats, and robbery, and his adult sentence of eight years, for offences committed when he was 17.

The Crown cross-appealed the conditional stay of the gang sexual assault conviction.

The Court of Appeal dismissed R.M.'s conviction appeal, finding the verdict reasonable and the complainant's credibility assessment proper.

It also dismissed the sentence appeal, upholding the adult sentence as not demonstrably unfit, finding the presumption of diminished moral blameworthiness rebutted and the "Coke principle" not violated.

The Crown's cross-appeal was allowed, setting aside the conditional stay for gang sexual assault, as it was deemed a distinct offence from sexual assault with a weapon under the Kienapple principle.

The Crown appealed a trial judge's decision to stay proceedings against three accused (Pauls, Jamal Yusuf, and Jamis Yusuf) for assault causing bodily harm and unlawful confinement, citing unreasonable delay under s. 11(b) of the Canadian Charter of Rights and Freedoms.

The trial judge had attributed most of the 35-month delay to the Crown's inaccurate time estimate and mishandling of a defence disclosure request.

The Court of Appeal re-evaluated the delay, finding that while the Crown was initially responsible for the misestimate, all parties and the court shared responsibility once the trial progressed.

The defence's disclosure request was deemed unnecessary and inappropriate, contributing to delay.

After further deductions for defence-caused delay (counsel unavailability, Pauls' illness) and joint responsibility for misestimates, the net delay for all respondents fell below the 18-month presumptive ceiling.

The Court also rejected the respondents' challenges to their guilt findings.

The appellants, Brandon Barreira, Joshua Barreira, and Chad Davidson, appealed their convictions for first-degree murder.

Davidson had admitted to shooting the victim, Tyler Johnson, but claimed manslaughter, while the other appellants denied party liability.

The appeal primarily focused on the trial judge's jury instructions, arguing a failure to adequately relate the evidence to the issues, and the unreasonableness of the first-degree murder verdict.

The Court of Appeal found the jury instructions inadequate for failing to properly summarize and relate the evidence to the specific elements of the offence and party liability.

While the court determined that the first-degree murder verdict was not unreasonable given the evidence, the instructional errors necessitated a new trial.

The appeals were allowed, and a new trial on the charge of first-degree murder was ordered for all appellants.

This is a costs endorsement following an appeal.

The Court of Appeal for Ontario addressed costs for both the appeal and the underlying summary judgment motion.

The parties agreed to no costs for the appeal due to divided success.

For the summary judgment motion, the court declined to award costs to the primary appellants (Bistricer) or respondents (Rubner), citing reasons such as new arguments on appeal and divided success.

However, the litigation guardian for Eda Rubner, who was aligned with the original applicants, was awarded partial recovery of costs for the summary judgment motion.

The appellant was convicted of possessing MDMA for the purpose of trafficking and possessing proceeds of crime.

He appealed his conviction, arguing that his Charter rights under ss. 8 and 9 were violated due to unlawful continued detention and search.

The trial judge found the initial detention and pat-down lawful, but the search of the appellant's knapsack unlawful, admitting the evidence under s. 24(2) of the Charter.

The Court of Appeal upheld the trial judge's finding that the appellant's continued detention was lawful, emphasizing the totality of circumstances and the reasonable suspicion held by police in a dangerous situation.

Consequently, the appeal against conviction was dismissed, though a mandatory victim fine surcharge was quashed.

Ara Koundakjian appealed an Ontario Review Board disposition ordering his detention at the Centre for Addiction and Mental Health, having sought a conditional discharge.

The appellant argued the Board misstated the governing legal test by using "appropriate" instead of "necessary and appropriate" and failed to meaningfully consider a conditional discharge.

The Court of Appeal dismissed the appeal, finding that the Board understood the correct standard despite the shorthand, and that its determination of continued detention was reasonable and entitled to deference given the appellant's history of mental illness, substance abuse (cocaine), lack of insight, frequent breaches of disposition conditions, and the significant risk of serious harm to the public.

The appellant, convicted of sexual assault, appealed on the grounds that his re-election of trial mode was invalid due to non-compliance with s. 561(7) of the Criminal Code and that the trial judge erred in concluding he was functus officio.

The Court of Appeal found the trial judge was not functus officio but agreed with the trial judge's alternative finding that the appellant, through counsel, had validly waived his right to have the re-election words read to him.

The appeal was dismissed.