Brian G. Puddington

The Crown appealed sentences imposed on two offenders convicted after a lengthy jury trial for leading a sophisticated criminal organization that imported approximately two tonnes of cocaine into Ontario over three years.

The sentencing judge imposed global sentences of 22 and 20 years’ imprisonment, relying heavily on the parity principle by comparing the respondents’ sentences to those of co‑accused who had resolved charges through joint submissions.

The Court of Appeal held that the sentencing judge erred by overemphasizing parity, using joint‑submission sentences as comparators, and failing to adequately apply the proportionality principle or account for the respondents’ leadership roles and the unprecedented scale of the importation scheme.

Given the gravity of importing roughly 2,000 kilograms of cocaine and the respondents’ status as directing minds of the criminal organization, the court substituted life sentences for the conspiracy count.

The court also set aside a fine in lieu of forfeiture imposed on one respondent in light of subsequent Supreme Court authority.

The appellants, Vito Buffone and Jeffrey Kompon, appealed their convictions for conspiracy to import cocaine and several substantive offences following a 50-day jury trial.

The appeal raised four grounds: the admissibility and scope of analyst's certificate evidence under the Controlled Drugs and Substances Act (CDSA), the trial judge's instructions on conspiracy (specifically the three-step Carter analysis), the instructions regarding inferences to be drawn from a third party's actions concerning an encrypted cellphone, and the instructions on the substantive counts.

The Court of Appeal dismissed all grounds of appeal, upholding the convictions.

The appellant, Marcia Chambers, appealed her conviction for possession for the purpose of trafficking in cocaine and marijuana.

The appeal focused on the trial judge's instructions to the jury regarding police opinion evidence on the appellant's demeanour and her post-detention silence.

The Court of Appeal found that the trial judge erred by failing to clearly instruct the jury to disregard inadmissible opinion evidence and by not providing a clear instruction that the appellant's silence could not be used against her.

These deficiencies rendered the trial unfair, leading to the quashing of the convictions and the ordering of a new trial.

The court rejected the argument that the verdict was unreasonable, finding sufficient evidence to support a conviction if the jury had been properly instructed.

The appellant, Peter Ukwuaba, appealed his convictions for importing heroin and conspiracy to import heroin, and sought leave to appeal his concurrent 11-year sentence.

The Court of Appeal dismissed the conviction appeals, finding the trial judge's inferences of complicity in importation and conspiracy were reasonable based on circumstantial evidence.

However, the court granted leave to appeal the sentence, reducing it from 11 years to 9 years concurrent, citing fresh evidence of the appellant's debilitating stroke post-sentencing, which significantly worsened his incarceration conditions and reduced the need for specific deterrence and incapacitation.

The Crown appealed a stay of proceedings granted to the respondents, Floriano Daponte and Vivian Hamilton, who were charged with drug and weapon offences.

The trial judge had found a s. 11(b) Charter right infringement based on a 30.5-month net delay, exceeding the 30-month Jordan ceiling.

The Crown argued that a 3-month delay caused by the respondents' certiorari application should have been deemed an exceptional circumstance and deducted, bringing the delay below the ceiling.

The Court of Appeal agreed, finding the trial judge erred by focusing on the Crown's position on only one count of the certiorari application.

With the deduction, the delay was 27.5 months, placing the onus on the respondents to show unreasonable delay.

The Court found the respondents failed to demonstrate that the case "markedly exceeded its reasonable time requirements" despite their diligence and some Crown disclosure issues and local resource shortages.

The appeal was allowed, and the stay set aside.

The appellant was convicted after trial of two counts each of production and possession for the purpose of trafficking in marijuana, and theft of electricity, arising from the operation of two marijuana grow operations in residential premises owned by the appellant.

The appellant received a blended sentence of 15 months imprisonment followed by one year probation.

On appeal, the appellant challenged both the conviction and the sentence.

The Court of Appeal dismissed the appeal from conviction, finding no error in the trial judge's analysis of the search warrant validity and the sufficiency of the evidentiary predicate.

The appeal from sentence was also dismissed as the sentence was fit, though the victim surcharge was set aside.

The appellant appealed his conviction for dangerous driving, possession of a stolen vehicle and licence plates, possession of cocaine for the purposes of trafficking, and two counts of failing to comply with a probation order.

The appellant, who represented himself at trial, claimed the trial judge failed to provide adequate assistance by instructing the jury to disregard a double hearsay statement that the appellant had relied upon in his closing address.

The statement allegedly came from a third party suggesting he had loaned the stolen vehicle to the appellant.

The Court of Appeal dismissed the appeal, finding the trial judge properly assisted the self-represented appellant and correctly instructed the jury to disregard the hearsay evidence.

The applicants, a media organization and its reporter, sought to revoke or stay the enforcement of a production order compelling them to turn over communications with an alleged ISIS recruiter.

The Supreme Court of Canada had previously upheld the validity of the order.

The applicants argued that recent reports from CENTCOM indicating the target was killed in an airstrike rendered the order moot and its enforcement an abuse of process.

The Superior Court held that the applicants were estopped from relitigating the order's validity.

Furthermore, the court found that because the RCMP had been unable to independently verify the target's death, their decision to continue the investigation and enforce the order was reasonable and did not constitute an abuse of process.

The appellant was convicted at trial on three counts of trafficking in fentanyl and three counts of knowingly using a forged document.

The charges related to his alleged participation in a scheme to obtain and use forged prescriptions for fentanyl patches.

The central issue at trial was identity—whether the appellant himself attended at the pharmacy to have the prescription filled or whether someone falsely presented himself as the appellant.

The trial judge accepted the evidence of a co-conspirator that the appellant participated in the scheme and rejected the appellant's claim that his health card had been lost or stolen.

On appeal, the appellant challenged the trial judge's failure to assist him as a self-represented accused and claimed misapprehension of evidence.

The Court of Appeal found the trial was fair but allowed the appeal with respect to one trafficking count where there was insufficient evidence.

The Crown brought an application to admit the notes and property reports of a deceased police officer under the principled exception to the hearsay rule.

The officer, who had participated in the execution of search warrants related to the accused's drug charges, died of a fentanyl overdose before trial.

While necessity was conceded, the court found the Crown failed to establish threshold reliability.

The court noted inaccuracies in the officer's reports, potential inconsistencies with other evidence, and the inability to cross-examine the officer on his drug use and its potential impact on his perception and memory.

The application was dismissed.

The appellant appealed his conviction for possession of cocaine for the purpose of trafficking and his sentence of ten years' imprisonment.

The conviction appeal raised two grounds: (1) that the conviction was unreasonable given the inconsistency with a co-accused's acquittal, and (2) that the trial judge erred in dismissing a Charter s. 11(b) application regarding trial delay.

The Court of Appeal rejected both grounds.

The trial judge's findings were reasonable, as the co-accused testified and was believed while the appellant's witness was rejected as untruthful.

The trial delay of 27 months fell within the 30-month presumptive ceiling established in R. v. Jordan.

The sentence of ten years was upheld as fit given the large quantity of cocaine involved and the appellant's prior conviction for the same offence.

The appellant appealed his conviction for possession of cocaine and marijuana for the purpose of trafficking, arguing that the trial judge erred in dismissing his Charter s. 11(b) application for unreasonable delay.

The Court of Appeal, hearing the appeal concurrently with a co-accused's similar appeal, found no unreasonable delay, agreeing with the trial judge's calculation of 27 months net delay.

The appeal from conviction and sentence was dismissed.

Deepak Prasad brought an application under ss. 8 and 24(2) of the Canadian Charter of Rights and Freedoms to exclude evidence (drugs and cash) seized from his residence and car following the execution of search warrants.

The Crown conceded that the redacted Information to Obtain (ITO) could not justify the warrants, leading to a "step six application" to consider unredacted portions.

The court found the judicial summary sufficient for the defence to challenge the warrant.

Applying the Debot criteria (credibility, compelling, and corroboration) holistically, the court determined that the issuing justice had reasonable and probable grounds to issue the warrants.

The information from confidential informants was found credible, compelling, and corroborated by police surveillance and investigation, establishing reasonable grounds to believe in ongoing drug trafficking and the presence of evidence in the specified locations.

Consequently, the application to exclude the evidence was dismissed.

Caitlin Johannes sought certiorari to quash a committal order for trial on charges of possession of cocaine and marihuana for trafficking, and possession of proceeds of crime.

The application challenged the preliminary inquiry judge's inferences regarding possession, particularly wilful blindness, based on circumstantial evidence from a shared residence.

The court dismissed the application, finding that while the inference of wilful blindness was speculative, other inferences drawn by the preliminary inquiry judge regarding knowledge and control were reasonable and logically supported by the evidence, thus providing sufficient evidence for committal to trial.

The defendant, Dexter Griffith, brought a Charter application to exclude evidence seized during the execution of a search warrant for his residence, alleging a breach of his section 8 Charter rights.

The application challenged the validity of the information to obtain (ITO) the search warrant, arguing there were no reasonable grounds to believe Griffith resided at the searched premises, that he committed the alleged drug trafficking offences, or that evidence would be found there.

The court dismissed the application, finding that the police had reasonable and objective grounds for the search warrant, and that there were no material omissions or misrepresentations in the ITO.

Even if a Charter breach had occurred, the evidence would not be excluded under section 24(2) of the Charter.

Three appellants appealed their convictions for drug trafficking offences arising from Project O'Bunker, a large joint forces investigation in London, Ontario.

The appellants challenged the dismissal of their s. 11(b) Charter applications alleging unreasonable delay, and one appellant also challenged his conviction on the merits.

The Court of Appeal dismissed all appeals, finding that while the total delay of 39-40 months exceeded the presumptive ceiling of 30 months established in R. v. Jordan, the delay was justified by the exceptional complexity of the prosecution and the transitional exceptional circumstance based on reasonable reliance on the previous Morin framework.

The appellant was convicted of possession of oxycodone, Percocet, and clonazepam for the purpose of trafficking.

The central issue on appeal concerned the admissibility of text messages extracted from the appellant's seized cellphone.

The Crown sought to admit incoming text messages requesting drugs as hearsay evidence under the principled exception to the hearsay rule.

The trial judge admitted the messages and instructed the jury they could be used for the truth of their contents.

The appellant appealed, arguing the messages were improperly admitted and the jury was inadequately instructed.

The Court of Appeal upheld the conviction, finding the incoming text messages were properly admissible under the principled exception to the hearsay rule based on threshold reliability and necessity, and that the jury charge adequately addressed the dangers of hearsay evidence.

The appellant was convicted of possession of cocaine for the purpose of trafficking following a search of his vehicle's trunk in response to a 911 call reporting a male possibly armed with a gun.

The appellant appealed on the basis that the search violated his s. 8 Charter rights and that the evidence should have been excluded under s. 24(2).

The majority upheld the conviction, finding the trunk search was authorized by common law as a justified safety search incident to investigative detention.

The concurring judge agreed the evidence should be admitted under s. 24(2) but found the search itself violated s. 8 of the Charter, disagreeing with the majority on the scope of permissible searches incident to investigative detention.

The appellant appealed his conviction for two counts of production of marijuana and the dismissal of his Charter s. 11(b) application for a stay of proceedings based on unreasonable delay.

The total delay from charge to conviction was 60 months, exceeding the 30-month presumptive ceiling established in R. v. Jordan.

However, the Court of Appeal found that when delay caused by defence conduct and express waivers was subtracted, the net delay was 23 months, below the presumptive ceiling.

The court also found that even if the net delay exceeded the ceiling, exceptional circumstances (two mistrials) and the transitional provisions of Jordan would justify the delay.

The appeal was dismissed.

The appellants, Vice Media Canada Inc. and journalist Ben Makuch, appealed the dismissal of their application to quash a production order requiring them to produce documents relating to their communications with Farah Shirdon, a Canadian resident who had joined ISIS and was charged with terrorism offences.

The appellants also sought to unseal the affidavit supporting the production order and challenged a non-publication order.

The Court of Appeal upheld the production order, finding that the Garofoli standard of review applied and that the issuing judge reasonably balanced the competing interests of law enforcement and freedom of the press.

The court allowed the appeal in part regarding the sealing order, directing that most material be unsealed with limited redactions.

The court also addressed the non-publication order, finding it a valid alternative to sealing but noting that certain portions of the affidavit may not require the publication ban.