Cara Conchita Barbisan

The appellant appealed convictions for first degree murder, conspiracy to commit murder, and arson arising from a contract killing proved in significant part through confessions obtained in a Mr. Big operation.

He argued that undercover officers improperly discouraged him from consulting his lawyer before meeting a senior undercover operative, and that this conduct amounted to an abuse of process requiring exclusion of his statements.

The Court of Appeal held that the motion judge was entitled to find the confessions reliable and admissible under the Hart framework, and that the brief exchange about counsel did not coerce the appellant or otherwise undermine the integrity of the justice system.

The appeal was dismissed.

The Court addressed the test for fitness to stand trial under s. 2 of the Criminal Code and held that fitness requires capacity to make and communicate reality-based defence decisions, not capacity to make decisions in one’s best interests.

Applying that standard, the majority found no basis to disturb findings that the accused was fit despite fluctuating psychotic symptoms, because the record showed sustained reality-based participation and intelligible communication.

The majority also dismissed fresh and new evidence motions concerning post-trial psychiatric evidence and later judicial findings about the Crown expert’s practices, concluding the proposed evidence could not reasonably have affected the verdict.

A dissent would have admitted the fresh evidence, found a miscarriage of justice, quashed the conviction, and ordered a new trial.

The appellant was convicted of multiple firearm and driving offences, including possession of a loaded restricted firearm, dangerous driving, and assaulting a peace officer.

He appealed his convictions, arguing the trial judge erred in applying the reasonable doubt standard regarding mens rea for dangerous driving and assaulting a police officer, and that the firearm verdicts were unreasonable due to a lack of knowledge regarding the weapon's characteristics.

The Court of Appeal dismissed the appeal, finding no error in the trial judge's assessment of mens rea or credibility of witnesses.

The court concluded there was sufficient circumstantial evidence to establish the appellant's possession and knowledge of the firearm's loaded and restricted nature, noting that modifications to the weapon suggested intent for it to be operable.

The sentence appeal was abandoned.

The accused, Joseph Gingras, pleaded guilty to aggravated assault and arson causing damage to property.

The charges stemmed from an incident where, while intoxicated, he poured gasoline on himself and the victim, Thomas Boissoneau, in an attempt to dissuade Boissoneau from suicidal ideations, leading to a fire that severely burned Boissoneau and destroyed a residence.

The court considered aggravating factors, including the severe impact on victims and the inherently dangerous conduct, alongside mitigating factors such as the guilty plea, remorse, and the accused's Indigenous background, which necessitated the application of Gladue principles.

The court imposed a global sentence of six-and-a-half years imprisonment, emphasizing denunciation and deterrence while acknowledging rehabilitation efforts.

The appellant, who suffered from schizophrenia and represented himself at trial, appealed his first-degree murder conviction.

He argued he was unfit to stand trial and urged the Court of Appeal to overturn or modify the 'limited cognitive capacity' test from R. v. Taylor to require that an accused be capable of making rational decisions in their best interests.

The Court of Appeal affirmed the Taylor test, clarifying that while an accused must have a reality-based understanding of their legal predicament and the ability to make decisions, they need not possess 'analytic capacity' to make decisions in their own best interests.

The Court also dismissed grounds of appeal relating to the voluntariness of statements made to a Crown psychiatrist and refused to admit fresh psychiatric evidence to substitute a verdict of not criminally responsible.

The offender was convicted by a jury of second-degree murder for the brutal killing of a vulnerable 75-year-old woman in her apartment.

The Crown sought a parole ineligibility period of 18-20 years, while the defence argued for 12-15 years.

The court considered the horrific nature of the attack, the vulnerability of the victim, the offender's lack of prior record, and his mental health issues.

Emphasizing denunciation and deterrence, the court sentenced the offender to life imprisonment with no eligibility for parole for 17 years.

The accused, charged with second-degree murder, brought an application to sit at counsel table rather than in the prisoner's dock during his trial.

The court reviewed conflicting jurisprudence on the issue and preferred the line of cases holding that the dock is the customary position for an accused.

The court found that seating the accused in the dock does not infringe the presumption of innocence, avoids the prejudice of having multiple security officers surrounding the accused at counsel table, and ensures the accused remains visible to the jury.

The application was dismissed.

The accused, charged with second-degree murder, brought a Charter application to exclude his police interview, alleging breaches of his s. 10(a) and 10(b) rights.

The arresting officer initially informed the accused he was arrested for unrelated offences, delaying mention of the homicide investigation for seven minutes to avoid upsetting the accused's family.

The court dismissed the application, finding no Charter breach as the accused was subsequently informed of his true jeopardy and provided his right to counsel multiple times, constituting a 'fresh start'.

The court further held that even if a breach occurred, the evidence was not obtained in a manner that infringed the Charter, and would be admissible under s. 24(2).

The appellant, convicted of second-degree murder, appealed on the ground that the trial judge failed to instruct the jury on the defence of accident (unintended act).

The Court of Appeal dismissed the appeal, finding that the defence of accident did not have an air of reality based on the totality of the evidence, including witness testimony, video surveillance, and coroner's evidence, which contradicted the appellant's equivocal testimony.

The appellant, Gary Hoffman, appealed his manslaughter conviction, raising three grounds: the trial judge's failure to give a W.(D.) direction regarding exculpatory evidence from a key witness (Peter Ojha), a misdirection on double hearsay contained in Ojha's K.G.B. statement, and a constitutional challenge to the Ontario Juries Act.

The Court of Appeal dismissed the constitutional challenge but found errors in the jury instructions regarding the W.(D.) direction and double hearsay.

The court held that a W.(D.) direction is required for exculpatory evidence from any witness, even if that witness also provides inculpatory evidence or if the exculpatory evidence relates to only one theory of culpability.

It also clarified that if a jury finds a K.G.B. statement to be based on double hearsay, they must disregard it entirely, rather than merely considering it for reliability.

Consequently, the manslaughter conviction was set aside, and a new trial was ordered.

The appellant, Odain Gardner, appealed his conviction for first-degree murder.

He was tried jointly with Erick Reid, who was convicted of manslaughter.

Gardner argued the trial judge erred by failing to properly relate material evidence to the issues for the jury and by giving an erroneous after-the-fact conduct instruction.

The Court of Appeal dismissed the appeal, finding that while the trial judge's instructions were not perfect, they were adequate in conveying the central issues of identity and credibility to the jury.

The court also found no reversible error in the after-the-fact conduct instruction, noting it was not circular or prejudicial.

The appellant, Trevor Jesse Herdman, appealed his convictions for possession of stolen property, possession of cocaine for trafficking, and failure to comply with a recognizance.

The sole ground of appeal was that the trial judge erred in dismissing his s. 8 Charter challenge to the validity of a telewarrant, arguing that the Information to Obtain (ITO) lacked reasonable grounds as it was based on a confidential informant's (CI) tip that did not meet the Debot criteria.

The Court of Appeal upheld the trial judge's finding that despite the CI's low credibility, the tip was "highly compelling" and "significantly corroborated" by police investigation, providing reasonable grounds for the warrant.

The appeal was dismissed.

The accused, Leonard Roberts, was charged with sexual assault.

The trial focused on the credibility and reliability of the complainant, R.L., who was highly intoxicated at the time of the alleged incident, and the accused's testimony, including his alleged lies to police.

The court admitted the complainant's spontaneous utterances to paramedics as narrative circumstantial evidence, finding them reliable despite inconsistencies with her trial testimony regarding minor details.

However, the court found the complainant's memory and perception were compromised by intoxication, raising reliability concerns.

The court also found the accused's testimony unreliable due to cognitive/linguistic deficits, concluding his admissions to police were not deliberate lies indicative of guilt.

Ultimately, the court was left with a reasonable doubt regarding the accused's guilt, leading to an acquittal.

The appellant challenged his convictions for two counts of second-degree murder, arson, and interfering with human remains, arguing the trial judge erred in jury instructions.

Specifically, the appellant contended the judge failed to give a W.(D.) instruction regarding his exculpatory statements, a corrective instruction on purported after-the-fact conduct, and improperly instructed the jury on the defence's failure to call evidence.

The Court of Appeal dismissed the appeal, finding no reversible error in the trial judge's charge, concluding that the jury was adequately instructed on reasonable doubt, the assessment of the accused's out-of-court statements, and the irrelevance of the accused's silence at trial.

The appellant appealed convictions for multiple historical sexual offences against the daughter of his former common law partner, alleged to have occurred between the complainant’s ages of five and sixteen.

The appeal argued that the trial judge committed three errors in assessing the appellant’s evidence: drawing a negative inference from his lack of recollection of a potential CAS investigation, improperly relying on demeanour when evaluating his denials, and criticizing his failure to address specific allegations.

The Court of Appeal held that the trial judge’s concerns about the appellant’s explanations were logical and permissible and that his treatment of the denials was consistent with the framework in R. v. W.(D.).

The court further held that the trial judge ultimately based the convictions on a reasoned acceptance of the complainant’s credible and reliable testimony beyond a reasonable doubt.

The appeal was dismissed.

The appellant appealed his conviction for dangerous driving causing death, stemming from a street racing incident where his co-accused lost control and killed a passenger.

The appellant argued the trial judge erred by failing to consider a mechanical failure of the co-accused's car as a reasonable inference for the accident and/or in her causation analysis, specifically claiming he had withdrawn from the race.

The Court of Appeal dismissed the appeal, finding the trial judge properly considered and rejected the mechanical failure theory and correctly determined that the appellant had not withdrawn from the race, thus maintaining his causal responsibility for the death.

The appellants were convicted of importing cocaine after returning from vacation in St. Lucia with 1.4 kilograms of cocaine each.

They appealed their convictions on the basis that the trial judge misapplied the burden of proof regarding the defence of duress and erroneously required corroboration of the evidence.

The appellants argued duress was the only defence at trial.

The Court of Appeal dismissed the appeal, finding that while the trial judge made a misstatement regarding the burden of proof, this was a simple error that did not affect the outcome when the reasons were read as a whole.

The defence failed because the trial judge did not believe the evidence of the testifying appellant and found no reasonable doubt regarding the threats and assaults, and further found that the appellants had a safe avenue of escape once within Canadian jurisdiction.

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.