Bryan Badali

The appellant, J.J., appealed convictions for sexual assault and break and enter.

The appeal raised issues concerning the trial judge's alleged misapprehension of DNA evidence, the imposition of an onus on the appellant to provide a benign explanation for DNA presence, and trial counsel's conflict of interest.

The Court of Appeal found that the trial judge did not misapprehend the DNA evidence in his reasons, did not reverse the burden of proof regarding innocent DNA transfer, and that trial counsel's prior representation of an investigating officer did not result in an actual conflict of interest impairing trial fairness.

The appeal was dismissed.

The appellant, convicted of first-degree murder and robbery, appealed on the sole ground that his trial counsel breached the duty of loyalty, effectively depriving him of counsel.

The appellant argued that counsel acted as amicus curiae rather than defence counsel, undermining his defence through misguided actions and communications with the Crown, including lying to gain trust and sharing defence strategy.

The Court of Appeal dismissed the appeal, finding that while counsel's actions were at times misguided and unethical (e.g., lying about his background), they did not constitute a breach of the duty of loyalty.

The court applied the two-part test for breach of loyalty, requiring an actual conflict of interest and impairment of representation, concluding that counsel's actions, though inadvisable, were not motivated by conflicting loyalties but rather by an attempt to manage a difficult client in a challenging case with strong Crown evidence.

The appellant, Pierre Labelle, appealed his convictions for indecent acts, criminal harassment, and communicating for sexual services with a minor.

The primary issues on appeal were the trial judge's treatment of non-identification evidence, the reasonableness of the criminal harassment conviction against one complainant (J.V.), and the alleged improper use of the appellant's willingness to fabricate evidence as positive evidence of guilt.

The Court of Appeal dismissed the appeal, finding that the non-identification evidence lacked probative value, the criminal harassment conviction was reasonable based on the evidence, and the trial judge correctly used the appellant's fabrication as a basis for rejecting his evidence, not as positive evidence of guilt.

The appellant appealed his conviction for first degree murder following a second trial.

He raised six grounds of appeal, challenging the jury instructions on post-offence conduct and constructive first degree murder, the admission of his statements to police, the admission of a recanting witness's prior statement, the admission of intercepted communications with his former spouse, and the lawfulness of the wiretap authorizations.

The Court of Appeal dismissed all grounds.

The court found that while the trial judge erred in finding no independent evidence of fabrication regarding the appellant's alibi, the failure to give an O'Connor instruction did not prejudice him.

The court also held that spousal privilege under s. 4(3) of the Canada Evidence Act does not survive divorce.

The appeal was dismissed.

The offender, Andrew Gabourie, pleaded guilty to multiple Criminal Code charges, including arson endangering life, possession of an explosive substance, and uttering threats.

The court considered aggravating factors such as his lengthy criminal record, the planned nature of the arson, and the presence of many people near the fire.

Mitigating factors included his guilty pleas and significant mental health issues (PTSD, ADHD, severe anxiety, bipolar disorder).

The court also considered the harsh conditions of his presentence custody, which was spent in segregation (Behavioural Stabilization Unit), exacerbated by his mental health.

Applying Summers, Duncan, and Hearns credits for presentence custody, including enhanced credit for segregation and COVID-19 conditions, the court imposed a total sentence of 1200 days, which was reduced to time served.

The offender was convicted of fraud over $5,000 after defrauding a woman he met on a dating website of $595,000.

He used a false surname and convinced her to invest in a fictitious internet app and second mortgages, but instead used the funds for personal expenses, gambling debts, and restitution for a prior fraud conviction.

The court found the offender's actions highly exploitative and noted his extensive related criminal record.

The court sentenced the offender to 6 years' imprisonment, less 462 days of pre-trial custody credit, and ordered restitution and a fine in lieu of forfeiture, each in the amount of $558,456.

This is an appeal from convictions for first degree murder (Marcus Alexis) and manslaughter (Brian Funes) arising from an armed robbery and fatal shooting.

Alexis appealed on grounds of jury instruction errors regarding constructive first degree murder and the relation of evidence to legal issues.

Funes appealed on grounds that the trial judge erred in leaving party liability under s. 21(1) of the Criminal Code with the jury, arguing it was not available on the evidence.

The Court dismissed Alexis's appeal, finding the jury instructions adequate.

Funes's appeal was allowed, his conviction set aside, and a new trial ordered, as the trial judge erred in instructing the jury on s. 21(1) liability for manslaughter, which was not supported by the evidence.

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, Torcaso and Maione, appealed their convictions for break and enter, with Torcaso also appealing an assault conviction.

They argued that a letter sent to the trial judge by a juror created a reasonable apprehension of bias and that the trial judge erred in his jury charge regarding identity.

The Court of Appeal dismissed the bias argument, finding the juror denied authorship and the letter's content did not suggest bias.

The court also found no error in the jury instructions on identity, noting the trial was a "one issue trial" and the jury was adequately cautioned.

Torcaso's sentence appeal was allowed only to the extent of striking the victim's surcharge; all other appeals were dismissed.

The applicant, who had been convicted of fraud, applied to reopen a stay of proceedings application based on alleged Charter violations.

He argued that his s. 8 rights were violated by the frequent and allegedly public manner of strip searches while in pre-trial custody, and that his s. 7 rights were violated by the previous Crown counsel's refusal to consent to an adjournment amidst late disclosure.

The court dismissed the application, finding that the strip searches were conducted in accordance with policy and justified by institutional security concerns, and that the Crown's conduct did not amount to bad faith or shock the conscience of the community.

The court concluded that this was not one of the clearest of cases warranting the extraordinary remedy of a stay of proceedings.

The applicant was found guilty of fraud over $5,000.

In the same reasons for judgment, the trial judge dismissed the applicant's pre-trial application for a stay of proceedings based on alleged abuse of process by correctional officers, without allowing a full evidentiary record.

The applicant brought an application for a mistrial, arguing the denial of procedural fairness gave rise to a reasonable apprehension of bias tainting the entire proceeding.

The court dismissed the mistrial application, finding no reasonable apprehension of bias and concluding that re-opening the stay application to allow a full evidentiary record was the appropriate and proportionate remedy.

The accused, Shaun Rootenberg, was charged with fraud over $5,000.00.

The defence brought an application for a stay of proceedings based on late disclosure and alleged abuse during pre-trial custody (strip searches).

The court dismissed the stay application, finding no prejudice from late disclosure and that the strip search complaints were not properly brought in the criminal forum.

On the fraud charge, the court found no deceit or falsehood in the initial investments by the complainant, Victoria Smith, but found the actus reus and mens rea of fraud established through "other fraudulent means" due to the unauthorized diversion of Ms. Smith's investment funds for personal use and to third parties.

Rootenberg was found guilty.

The appellant was convicted of sexual assault and sexual assault causing bodily harm.

On appeal, he challenged the trial judge's evidentiary rulings, jury instructions on incapacity and consent, and the trial judge's response to jury questions regarding bodily harm and consent.

The Court of Appeal dismissed all grounds of appeal, finding no reversible error in the trial judge's discretionary decisions regarding admissibility of prior sexual assault evidence and counselling records, the exclusion of a prior consistent statement, the instruction on incapacity as part of the Crown's case, and the response to jury questions regarding the relationship between bodily harm and consent.

On appeal from a sentence imposed by the Ontario Court of Justice, the appellant sought a variation of the sentence.

On consent, the Court of Appeal allowed the appeal and varied the sentence to 133 days.

The appeal was heard on the same date as the decision was rendered.

Two separate appeals concerning the entrapment defence in dial-a-dope drug trafficking investigations.

In Williams' case, the trial judge found entrapment and stayed drug trafficking charges, but the Crown appealed.

In Ahmad's case, the trial judge rejected an entrapment application and convicted the accused.

The Court of Appeal held that police may provide opportunities to sell drugs to persons associated with phone lines reasonably suspected of being used in dial-a-dope operations, even without reasonable suspicion that those individuals are engaged in criminal activity, provided the police are conducting a bona fide inquiry.

The majority found no entrapment in either case.

The concurrence reached the same result but on the basis that police had reasonable suspicion that both accused were engaged in criminal activity.

A Toronto police officer was convicted of attempted murder for firing a second volley of six shots at a knife-wielding man lying on a streetcar floor, 5.5 seconds after an initial volley that had fatally wounded the victim.

The officer was acquitted of second-degree murder.

The Court of Appeal upheld the conviction and the six-year sentence, finding the verdicts were not inconsistent and that the mandatory minimum sentences for attempted murder with a firearm do not violate the Charter.

The court rejected the officer's constitutional challenges under sections 7 and 12 of the Charter and dismissed his application to adduce fresh evidence on appeal.

The appellant was convicted of historic sexual offences against his cousin committed when she was a young girl.

He was sentenced to two years less a day in jail and three years' probation.

The appellant appealed his conviction arguing the trial judge engaged in an unbalanced approach to evidence resulting in a reversal of the burden of proof and failure to give effect to the presumption of innocence.

The Crown sought leave to appeal the sentence, arguing the trial judge improperly applied Gladue principles and underemphasized deterrence and denunciation.

The Court of Appeal dismissed both the conviction appeal and the sentence appeal.

The accused was charged with sexually assaulting the complainant while she was asleep at his residence on November 18, 2015.

The Crown alleged non-consensual sexual contact while the accused claimed the sexual activity was consensual.

The trial judge found the complainant credible and rejected the accused's evidence, determining that the accused placed his fingers in the complainant's vagina while she was asleep and knew she was asleep when he did so.

The accused was found guilty of sexual assault.

The accused sought leave under section 276 of the Criminal Code to cross-examine the complainant and adduce evidence regarding prior sexual activity between them.

The Crown charged the accused with sexually assaulting the complainant while she was asleep.

The accused sought to introduce evidence of: (1) a single prior act of sexual intercourse; (2) multiple acts of massaging over clothing; and (3) the complainant permitting the accused to photograph and video her while naked.

The court applied the three-part test under section 276, examining relevance, probative value, and prejudicial effect.

The court permitted cross-examination and evidence regarding the prior sexual intercourse and massaging incidents, finding them relevant to rebut the Crown's theory of motive and to establish the nature of the relationship.

The court prohibited admission of the actual photographs and videos but permitted cross-examination regarding the circumstances of their creation.

Jordan McPhee pleaded guilty to sexual assault causing bodily harm, unlawful confinement, and robbery.

The Crown applied for a dangerous offender designation.

The court, considering McPhee's criminal record, a subsequent aggravated assault conviction, and a psychiatric risk assessment, found him to be a dangerous offender based on a pattern of repetitive behaviour showing a failure to restrain his behaviour and a likelihood of causing death, injury, or severe psychological damage.

The court imposed a determinate sentence of six years imprisonment (less pre-sentence custody) followed by a ten-year Long Term Supervision Order, with specific recommendations for conditions to the parole board.