Brian Edward McNeely

The applicants sought a variance of a restraint order under s. 462.34(4)(c) of the Criminal Code to permit the release of restrained funds for reasonable living and legal expenses while facing fraud and proceeds of crime charges.

The court reviewed the statutory criteria requiring proof that the applicants had an interest in the funds, lacked other assets or means, and that no other person appeared entitled to the property.

The Crown challenged the sufficiency and accuracy of the applicants’ financial disclosure, pointing to unexplained withdrawals and assets exceeding $895,000.

The court found the applicants failed to establish on a balance of probabilities that they lacked other available assets or means.

The application to vary the restraint order was dismissed.

The applicant moved for an extension of time to appeal his convictions for mischief and theft, arguing his guilty pleas were uninformed because his lawyer failed to advise him of the immigration consequences.

The applicant, a permanent resident, faced a mandatory deportation order under the Immigration and Refugee Protection Act due to the mischief conviction.

The Court of Appeal granted the motion, finding the applicant had an arguable case that his plea was not informed and that his delay in appealing was reasonably explained by his recent schizophrenia diagnosis and the delayed receipt of the deportation notice.

The accused applied under ss. 462.34(4) and 462.341 of the Criminal Code for the release of restrained funds derived from the sale of a matrimonial home in order to pay legal expenses.

The court considered whether the applicant established that he had no other assets or means available to meet reasonable legal expenses and that no other person appeared lawfully entitled to the funds.

The court found the applicant’s financial disclosure incomplete and unreliable, noting unexplained assets and prior access to substantial funds.

Evidence also supported the claim of an alleged fraud victim who appeared to have a lawful entitlement to the restrained property.

The statutory prerequisites for release were therefore not met.

The appellant was convicted of second degree murder and two counts of aggravated assault following a shooting at a student pub.

He appealed his conviction, arguing the trial judge erred in instructing the jury regarding a firearms expert's testimony on muzzle flash, delivered an unbalanced jury charge, and erred in the instruction on post-offence conduct.

The Court of Appeal dismissed the appeal, finding no error in the trial judge's characterization of the expert evidence or the balance of the charge, and concluding that the error in the post-offence conduct instruction did not warrant setting aside the conviction.

The appellant was convicted of first degree murder and manslaughter in relation to the deaths of two sisters.

He appealed, arguing the trial judge made several evidentiary errors, including admitting frail eyewitness non-identification evidence, excluding evidence of the co-accused's motive and prior bad acts, admitting hearsay statements of the deceased, and failing to properly instruct the jury on the defence theory regarding the co-accused's prior inconsistent statements.

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

The accused was charged with concealing the dead body of a child.

The trial judge found that the words 'died before . . . birth' in the Criminal Code were unconstitutionally vague and severed the word 'before', leading to the accused's acquittal.

The Crown appealed.

The Court of Appeal allowed the appeal, holding that the provision is not unconstitutionally vague when interpreted using the common law 'chance of life' standard, which provides fair notice and limits law enforcement discretion.

A new trial was ordered.

The appellant was convicted of second-degree murder in the strangulation and drowning of his former partner.

He appealed the conviction, arguing the trial judge erred in admitting hearsay evidence of a phone call where the deceased stated she was with the appellant shortly before her death.

He also argued the Crown engaged in improper cross-examination of defence witnesses and that the trial judge failed to give a limiting instruction regarding a police officer's testimony.

The Court of Appeal dismissed the appeal, finding the hearsay statement was reliable, the improper cross-examination did not result in a miscarriage of justice, and the lack of a limiting instruction was the result of a deliberate tactical decision by the defence.

The appellant appealed his murder conviction, arguing the trial judge erred by provisionally ruling that if the defence led 'other suspect' evidence regarding strychnine in the deceased's home, the Crown could lead evidence of the accused's wife's death by strychnine poisoning the previous year.

The Court of Appeal dismissed the appeal, finding the trial judge correctly held that without evidence of the accused's special access to strychnine, the other suspect evidence would leave the jury with a distorted picture.

The ruling was a fair balancing of the evidence.

The moving party, who was convicted of second-degree murder, brought a motion for an order compelling the disclosure of records relating to the interpretation services provided at his trial.

He sought these records to support a proposed application to introduce fresh evidence on appeal, alleging a breach of his section 14 Charter rights due to incompetent interpreters.

The Court of Appeal dismissed the motion, finding that the moving party failed to establish any air of reality to his claims that the interpretation services were deficient or had any adverse impact on the fairness of his trial.

The appellant was convicted of second-degree murder for the death of his wife, which was initially investigated as a horse riding accident.

Fifteen years later, the police re-opened the investigation and the appellant confessed during a polygraph interview.

On appeal, the appellant argued his s. 10(b) Charter rights were violated, the trial judge erred in not leaving manslaughter to the jury, and sought to introduce fresh expert evidence suggesting an accidental death.

The Court of Appeal dismissed the conviction appeal, finding no Charter breach, no air of reality to manslaughter, and that the fresh evidence failed the Mohan and Palmer tests.

The sentence appeal regarding the 14-year parole ineligibility period was also dismissed.

The appellant was convicted of second degree murder and sentenced to life imprisonment without parole for 20 years.

At trial, the defence argued that the main Crown witness was the actual shooter and attacked the integrity of the police investigation.

The trial judge permitted the lead detective to provide an investigative narrative to confirm the Crown witness's evidence.

On appeal, the appellant challenged the admission of this investigative narrative, the explanation for why a witness was not called, and the admission of prior consistent statements.

The Court of Appeal dismissed the appeal, finding that the defence's attack on the investigation justified the Crown's response and that the trial judge properly instructed the jury on the limited use of the evidence.

The 20-year parole ineligibility period was also upheld given the appellant's violent criminal record.

The appellant appealed his conviction, arguing that a police officer's entry into his home violated s. 8 of the Charter.

The Court of Appeal dismissed the appeal, upholding the trial judge's finding that the officer approached the home lawfully to investigate an accident and stepped into the foyer on the implied invitation of the appellant's wife.

The implied invitation doctrine applied, distinguishing the case from R. v. Evans.

The appellants, a father and stepmother, appealed their convictions for the first and second degree murder of their five-year-old daughter, respectively.

The stepmother also appealed her 15-year parole ineligibility period.

The Court of Appeal dismissed all grounds of appeal, finding that post-offence conduct (including dismemberment and concealment of the body) was properly admitted as evidence of planning and deliberation.

The Court also upheld the trial judge's refusal to grant a judge-alone trial without Crown consent under s. 473(1) of the Criminal Code, affirming that the statutory requirement for a jury trial in murder cases should only be overridden in the clearest of cases where standard safeguards are insufficient to ensure a fair trial.

The stepmother's sentence was upheld due to the horrific nature of the crime and her egregious post-offence conduct.

The appellant appealed his conviction for first-degree murder and robbery arising from the Just Desserts café shooting.

He argued that the trial judge erred in the jury selection process by prioritizing the return dates of potential jurors from identifiable minority groups to ensure representativeness.

The Court of Appeal held that while the process departed from strict statutory requirements, it did not prejudice the appellant or undermine the jury's impartiality.

The court also dismissed grounds of appeal relating to the admissibility of surveillance videotapes, recognition witness evidence, the jury charge on identification, and the trial judge's refusal to compel testimony.

The appeal from conviction was dismissed and the sentence appeal was quashed.

The appellant was convicted of manslaughter and robbery and sentenced to 15 years' imprisonment.

The sentencing judge gave the appellant an enhanced credit of seven years for five years and three months of pre-sentence custody, effectively applying a 1.33-for-1 ratio instead of the usual 2-for-1 credit.

The appellant appealed the sentence, arguing the judge erred by departing from the 2-for-1 practice without adequate explanation.

The Court of Appeal dismissed the appeal, finding that the sentencing judge's reasons clearly indicated the appellant posed a serious danger to society and was unlikely to receive early parole, which justified the departure from the normal practice.

Amicus counsel applied for an order under s. 672.11(b) of the Criminal Code directing a psychiatric assessment of the appellant to determine if he was exempt from criminal responsibility due to a mental disorder.

The application was opposed by both the self-represented appellant and the Crown.

The Court of Appeal dismissed the application, finding that the medical evidence did not demonstrate the necessity for an assessment and noting that the appellant would likely refuse to participate, rendering the assessment futile.

The appellant appealed a decision of the Summary Conviction Appeal Court Judge, which had dismissed an appeal from a conviction entered by the Ontario Court of Justice.

The Court of Appeal found no error in the reasoning of the Summary Conviction Appeal Court Judge and dismissed the appeal.

The appellant was convicted of manslaughter after stabbing his mother's abusive partner during an altercation.

He appealed the conviction, arguing the trial judge erred in instructing the jury on self-defence, specifically by failing to instruct that provoking an assault does not disqualify an accused from relying on self-defence under section 34(2) of the Criminal Code, and by failing to charge the jury under section 34(1).

The Court of Appeal dismissed the appeal, finding that the jury charge was fair and balanced, did not mislead the jury regarding provocation, and correctly focused on the broader self-defence provisions of section 34(2).

The appellant appealed his sentence, arguing the trial judge erred by failing to give credit for 21 days of pre-trial custody served in 2002.

The Court of Appeal agreed that the trial judge erred in failing to give credit for the 21 days, but found that given the gravity of the offences and the appellant's record, the sentence imposed was fit even if credit had been given.

Leave to appeal sentence was granted, but the appeal was dismissed.

The appellant appealed his conviction for sexual assault.

At trial, the complainant was unable to testify due to her fear of the appellant.

The trial judge admitted her videotaped statement to police under the principled exception to the hearsay rule.

The Court of Appeal found that while the necessity requirement was met, the trial judge erred in finding threshold reliability.

The statement lacked an oath or warning about the consequences of lying, there was no evidence explaining how the statement came to be given, and the complainant expressed a strong motive to fabricate.

The appeal was allowed, the conviction quashed, and an acquittal entered.