Cate S. Martell

This is a bail application pending leave to appeal to the Supreme Court of Canada.

The applicant, Marshall Kazman, was convicted of serious fraud and money laundering offences, and his appeal to the Court of Appeal for Ontario was dismissed.

He sought release under s. 679(3) of the Criminal Code, arguing that his application for leave was not frivolous and that exceptional circumstances related to the COVID-19 pandemic, his age (64), and pre-existing health conditions (asthma, respiratory, heart) made his continued detention unnecessary in the public interest.

The Crown opposed, emphasizing the high enforceability interest given the serious convictions and the weak merits of the leave application.

The court granted bail, finding that while the merits of the leave application were weak, the applicant's specific health vulnerabilities combined with the public health risks posed by COVID-19 in a correctional setting constituted exceptional circumstances justifying release, without undermining public confidence in the administration of justice.

The Ontario Court of Appeal heard appeals from convictions and sentences related to a series of tractor-trailer thefts and robberies.

Appellants challenged the validity of cell tower production orders, the admission of evidence obtained from Charter-breaching production orders under s. 24(2), and the use of similar act evidence.

One appellant also challenged possession convictions.

The Court dismissed all conviction appeals, finding the initial production orders valid, the s. 24(2) analysis sound (due to reduced privacy expectation in public location data), and the similar act evidence properly admitted.

However, the Court allowed the sentence appeals, finding the trial judge erred by analogizing the robberies to home invasions, which led to unduly high base sentences.

The Court reduced the total sentences for the three appealing accused.

The appellant was convicted of possession of a firearm and threatening the complainant.

She appealed on the ground that the trial judge erred in failing to allow the defence to advance a theory that could have raised a reasonable doubt as to her guilt.

The trial judge excluded evidence that two unidentified men had taken a backpack from the appellant's home, which could have supported the defence theory that the complainant, not the appellant, possessed the firearm.

The Court of Appeal found that there was sufficient evidence independent of the backpack's contents to give the defence an air of reality and that the jury should have been permitted to consider this alternative theory.

Both convictions were set aside and a new trial was ordered.

The accused, Justine Ordonio, sought to adduce ante mortem hearsay statements made by the deceased, Teresa Hsin, regarding a third-party suspect, Tim Chiu, to establish motive and disposition.

The court examined three categories of statements, considering their admissibility under the state of mind exception or the principled approach to hearsay.

While necessity was established due to the deceased's unavailability, the court found the statements lacked threshold reliability.

This was attributed to the confrontational and strategic nature of one conversation, the deceased's compromised state in hospital during another, and the ambiguity and lack of specific fear of violence in statements relayed by the deceased's mother.

The motion to admit the hearsay evidence was dismissed.

The accused, Justine Ordonio, sought to adduce expert evidence from Todd Barron regarding the tendency of certain interview techniques to produce unreliable or false information, personal characteristics increasing suggestibility, and the implications of techniques used in this case for reliability.

The court dismissed the application, finding the evidence not necessary to assist the jury, as common sense and judicial instructions were sufficient.

Furthermore, the proposed expert lacked the required objectivity and did not fully review the evidence.

The applicant was convicted of sexual assault and sentenced to 21 months' imprisonment followed by 2 years of probation.

He sought bail pending appeal.

The trial judge's conviction turned on credibility findings, relying heavily on video evidence of the complainant's demeanour immediately after the alleged assault.

The applicant argued the trial judge improperly relied on demeanour evidence contrary to Supreme Court precedent and failed to adequately address serious credibility issues with the complainant's testimony.

The motion judge granted bail pending appeal, finding the grounds of appeal were not frivolous and that detention was not justified based on the applicant's bail compliance history and surety plan.

The appellant was convicted of three counts: intentionally or recklessly causing damage by fire to his dwelling house knowing it was inhabited or occupied (s. 433(a)), intentionally or recklessly causing damage by fire that seriously threatened the safety and property of residents in proximity (s. 434.1), and wilfully endangering his dog (s. 445(1)(a)).

The trial judge found the appellant deliberately set a fire by igniting paper under a television.

On appeal, the court allowed the appeal on counts one and four, quashing those convictions, while upholding the conviction on count two.

An appeal under Part XX.1 of the Criminal Code against the disposition of the Ontario Review Board dated October 2, 2017.

The appellant, declared not criminally responsible on account of mental disorder, challenged three aspects of the Board's decision: (1) the finding that the appellant posed a significant threat to public safety; (2) the Board's failure to consider a conditional discharge; and (3) the wording of condition 4(f) of the disposition.

The Court of Appeal upheld the Board's findings on the first two issues but amended condition 4(f) to clarify the Board's intention regarding restrictions on the appellant's attendance at locations where children under 14 are present.

The appellant was convicted of impaired driving causing death and "over 80" causing death following a motor vehicle accident in which his cousin Aaron Knapman died.

The central issue at trial was whether the appellant or Aaron was driving at the time of the accident.

The Crown's theory was that the two had switched places after leaving a party.

The trial judge convicted the appellant based on evidence from an accident reconstructionist combined with the appellant's post-offence conduct, including multiple false statements to bystanders and police.

The appellant appealed on three grounds: that the trial judge erred in inferring guilt from disbelief of his testimony, that the trial judge erred in treating his falsehoods as fabricated statements, and that the verdict was unreasonable.

The Court of Appeal dismissed the appeal, finding that the trial judge properly applied the law and that the evidence, viewed as a whole, supported the conviction beyond a reasonable doubt.

The appellant appealed her conviction for failing to provide a breath sample into an Approved Screening Device, contrary to section 254(2)(b) of the Criminal Code.

The appeal was based on three grounds: the trial judge's alleged error in relying on roadside utterances for credibility assessment, a misapprehension of evidence regarding the appellant's hearing, and the unreasonableness of the verdict due to an alleged lack of unequivocal refusal.

The court dismissed all grounds of appeal, finding no error in the trial judge's reasoning, no material misapprehension of evidence, and abundant evidence of unequivocal refusal.

An appeal under Part XX.1 of the Criminal Code against the Ontario Review Board's disposition dated June 30, 2017.

The appellant did not contest the Board's finding that he remained a significant threat to public safety or the disposition that he remain detained at the General Forensic Unit at CAMH.

However, he contended the Board acted unreasonably by not including a delegation of authority permitting community living in supervised accommodation when the Hospital deemed it appropriate, as had been included in the previous 2016 disposition.

The Court of Appeal dismissed the appeal, finding the Board's decision was reasonable and entitled to deference, as the evidence clearly showed the appellant was not ready for community living at the time of the hearing.

The appellant appealed his conviction for sexual assault following a jury trial.

The sole ground of appeal was that the trial judge erred by refusing to instruct the jury on the defence of honest but mistaken belief in consent.

The charge related to anal penetration that followed consensual oral and vaginal intercourse.

The complainant testified she repeatedly and unequivocally told the appellant to stop and resisted his attempts at anal penetration.

The appellant testified he asked for consent after partial insertion and the complainant agreed.

The court found no air of reality to the mistaken belief in consent defence, as the two accounts were fundamentally conflicting and could not be reconciled to support that defence.

The appeal was dismissed.

Appellant appealed her conviction for importing cocaine and her sentence of three years imprisonment.

The Crown's case established all essential elements of importing beyond a reasonable doubt.

The appellant's sole defence was duress, which the jury rejected.

On appeal, the appellant argued that the trial judge erred in instructing the jury that seeking assistance from Canadian Border Services Agency officers at the airport constituted a safe avenue of escape, contending that the importing offence was complete upon entry into Canada.

The Court of Appeal held that while importing may be legally complete upon entry, it is not factually complete until the contraband and its carrier clear customs.

Accordingly, assistance from domestic authorities remained available as a potential safe avenue of escape.

The appeal from conviction was dismissed.

On the sentencing appeal, the appellant sought a six-month reduction due to an unlawful strip search conducted by the RCMP.

While the trial judge erred in her analysis of the Charter breach's seriousness and in treating sentencing ranges as fixed, these errors did not impact the sentence imposed, which was fit.

The appeal from sentence was dismissed.

Appeal from a conviction for aggravated assault, use of a firearm in the commission of an indictable offence, discharge of a firearm with intent, breach of probation, possession of a prohibited firearm, and possession of a firearm while prohibited.

The sole issue at trial was identity.

The appellant was identified as the shooter in surveillance video footage by three witnesses based on recognition from prior acquaintance.

The trial judge convicted the appellant based on this recognition evidence despite finding that facial features were not visible on the poor-quality video.

The Court of Appeal found that the trial judge erred in law by failing to properly scrutinize the reliability of the recognition evidence and that the verdict was unreasonable.

The conviction was set aside and an acquittal was entered.

The appellant was convicted of possession of cocaine for the purpose of trafficking and related firearms offences following his arrest on March 19, 2014.

He appealed on the grounds that his arrest was unlawful because it lacked reasonable and probable grounds, and that evidence seized incident to arrest should be excluded under the Charter.

The Court of Appeal upheld the conviction, finding that the arrest was lawful based on a reliable confidential informant's tip that was corroborated by independent police observation.

The court also rejected the appellant's argument regarding misapprehension of evidence concerning the seizure of a cellular phone.

The appellant was convicted of importing marijuana into Canada following a judge-alone trial.

On appeal, the appellant challenged the conviction on the grounds that the guilty verdict was unreasonable and that the trial judge erred in finding that the appellant's exculpatory statement to police was deliberately concocted.

The Court of Appeal found that the trial judge erred in law by making a finding of concoction based solely on evidence that proved the statement false, without independent evidence of fabrication as required by R. v. O'Connor.

Although the court found sufficient evidence to support a conviction on other grounds, the error in law regarding the treatment of the exculpatory statement warranted a new trial.

The appellant was convicted of multiple drug trafficking and possession offences arising from events in spring 2011.

He appealed his convictions on the grounds that the trial judge misdirected the jury on the prohibition against applying evidence across counts in a multi-count case, failed to correct improper cross-examination and closing arguments by the Crown, and failed to properly instruct on propensity reasoning.

The Court of Appeal found that the trial judge erred by providing ambiguous instructions on cross-count reasoning, failing to correct the Crown's improper invitations to the jury to use evidence from one count to determine guilt on other counts, and providing contradictory responses to jury questions.

The court concluded that the jury's verdicts were tainted by legally impermissible reasoning and ordered a new trial.

Michael Oduh, charged with serious drug trafficking offences, applied for a stay of proceedings pending state-funded counsel (a Rowbotham application) after being denied Legal Aid Ontario coverage.

The court found that Oduh lacked the financial means to retain private counsel for a complex, lengthy trial and that counsel was essential for him to receive a fair trial, given the seriousness of the charges, the potential for a lengthy jail term, and his lack of familiarity with the criminal justice system.

The application was allowed, and proceedings were stayed until state-funded counsel was provided.

This ruling addresses the admissibility and use of association evidence as circumstantial evidence of identity in a multi-accused criminal trial involving charges of theft, kidnapping, and robbery.

The Crown sought to use evidence of association between the accused and others, combined with cell phone proximity data, to establish identity in joint enterprise crimes.

The accused argued against this, citing concerns about 'guilt by association.' The court permitted the use of certain categories of association evidence (phone contact, contact information, surveillance observations, witness testimony) for the limited purpose of considering cell phone patterns in the context of joint enterprise crimes, provided careful jury instructions were given to prevent 'guilt by association.' However, the court disallowed the use of 'mirrored phone movements' across different counts and the circumstances of collective arrests as association evidence, finding their prejudicial effect outweighed their probative value.

The accused in a 29-count indictment for theft, kidnapping, robbery, and possession of property obtained by crime brought directed verdict applications at the close of the Crown's case.

The applications were dismissed, with the court finding that the Crown's circumstantial evidence, particularly cell phone data showing symmetrical movement and association between the accused, was reasonably capable of supporting an inference of guilt for each count.

The court clarified the legal test for directed verdicts in circumstantial cases, rejecting the defence's argument that evidence must be inconsistent with any other explanation.