Catriona Verner

Two appellants, Jemaine Phillips and Drai O'Hara-Salmon, appealed their convictions for first-degree murder in connection with the shooting death of Said Hadbai in a parking lot across from Jack's Bar in London, Ontario on December 27, 2011.

Phillips, who fired the fatal shot, was convicted as the principal offender.

O'Hara-Salmon was convicted as a party to the offence under sections 21(1)(b), 21(1)(c), and 21(2) of the Criminal Code.

Phillips raised multiple grounds of appeal concerning the trial judge's instructions on self-defence, the exclusion of expert psychiatric evidence, the failure to leave provocation with the jury, and various other charging issues.

O'Hara-Salmon raised grounds concerning the adequacy of instructions on party liability, the failure to give a W.(D.) instruction, and the reasonableness of the verdict.

The Court of Appeal dismissed both appeals, finding no reversible errors in the trial judge's conduct or instructions.

The applicant, convicted of first degree murder and committing an indignity to a human body, applied for the appointment of publicly-funded appellate counsel under s. 684(1) of the Criminal Code.

The Crown conceded the applicant lacked means to retain private counsel.

The court found the applicant had arguable grounds of appeal challenging the trial judge's pre-trial rulings on the admissibility of evidence regarding the applicant's cannibalistic ideation, including statements to a psychiatric nurse and rap lyrics.

The court determined the applicant could not effectively argue the complex appeal without counsel assistance.

The appointment was granted on a limited basis, restricted to addressing the effects of the pre-trial rulings on trial fairness, excluding issues of post-offence conduct and ineffective assistance of counsel.

The appellant appealed his conviction for robbery, arguing that the trial judge's reasons were insufficient because they failed to adequately address inconsistencies in the complainant's evidence regarding the amount of money taken during a drug transaction.

The Court of Appeal dismissed the appeal, finding that the trial judge's reasons sufficiently explained the basis for the conviction and why the complainant was deemed reliable despite some confusion over the exact denominations and amounts.

The trial judge's decision to convict on the lesser included offence of assault causing bodily harm rather than aggravated assault was also adequately explained by the inability to distinguish injuries caused by the assault from those caused by a subsequent fall.

The appellant appealed his convictions for break and enter and assault with a weapon, as well as his sentence of five years' imprisonment and a ten-year long-term supervision order.

On the conviction appeal, the appellant argued the trial judge erred in his jury instructions regarding eyewitness identification and the Vetrovec warning for an accomplice's testimony.

The Court of Appeal found no error in the instructions.

On the sentence appeal, the appellant argued he should have received enhanced credit (1.5:1) for pre-sentence custody.

The Court of Appeal held that while the trial judge erred in denying enhanced credit solely because the appellant did not apply for bail, enhanced credit was not warranted because the appellant's extensive criminal record and likelihood of reoffending meant he was unlikely to be granted early release.

Both appeals were dismissed.

The appellant was convicted by a jury of sexual assault and unlawful confinement against his domestic partner.

He was subsequently designated a dangerous offender and sentenced to an indeterminate period of detention.

He appealed the convictions, arguing the trial judge erred in his jury instructions regarding corroboration, consent, and the justification under s. 27 of the Criminal Code.

He also appealed the dangerous offender designation and the indeterminate sentence.

The Court of Appeal dismissed the appeal, finding no errors in the jury instructions and upholding the dangerous offender designation and sentence based on the appellant's extensive history of domestic violence and treatment-resistant personality disorders.

The appellant pleaded guilty to criminal negligence causing death after her two-year-old daughter died of heat stroke.

She was sentenced to 6 years' imprisonment less 6 months' credit for time served.

On appeal, she argued the sentencing judge erred in his findings regarding her beating of the child, in refusing credit for pre-trial house arrest, and in determining the sentencing range.

The Court of Appeal dismissed the appeal, finding no error in the sentencing judge's factual findings, exercise of discretion regarding pre-trial custody credit, or the fitness of the sentence given the high level of moral blameworthiness and vulnerability of the victim.

The appellant appealed his conviction for first-degree murder, arguing the trial judge erred in instructing the jury on unlawful confinement as a basis for first-degree murder, and in relating the evidence of his intoxication and cocaine withdrawal to the requisite intent for murder.

The Court of Appeal dismissed the appeal, finding that the initial restraint of the victim was a distinct act from the subsequent killing, and that the trial judge's instructions on intent and the evidence were adequate.

The appellant was convicted of second-degree murder of his 81-year-old neighbour and sentenced to life imprisonment with a 15-year parole ineligibility period.

On appeal, he argued the trial judge erred in his instructions regarding bad character evidence and post-offence conduct, including the appellant's failure to call the police and his use of the victim's credit card.

The Court of Appeal found no errors in the jury instructions, noting the trial judge carefully reviewed competing inferences.

The sentence appeal was also dismissed, with the court finding the parole ineligibility period appropriate given the brutality of the murder.

The appellant sought leave to appeal sentence arising from a conviction for possession of child pornography, and also challenged the length of a ten-year long-term offender supervision order.

The court held that the sentencing judge imposed an illegal custodial sentence because the sentence, when combined with pre-sentence custody expressly treated as additional time, exceeded the then-applicable five-year statutory maximum under s. 163.1(4)(a) of the Criminal Code.

Re-sentencing afresh, the court imposed a fit sentence of 4.5 years' imprisonment and granted enhanced pre-sentence custody credit at 1.5:1 under Summers, leaving 16 days remaining.

The challenge to the ten-year supervision order was dismissed because the record amply supported the appellant's very high risk of reoffending and need for close supervision and gradual reintegration.

The appellant appealed his convictions for second-degree murder and his 17-year period of parole ineligibility.

He argued the trial judge erred by failing to instruct the jury on party liability, which could have provided an alternative route to a manslaughter verdict.

The Court of Appeal agreed that the trial judge erred in law by not leaving party liability with the jury, as there was an air of reality to the appellant's secondary involvement.

However, the Court applied the curative proviso, finding the error was harmless and did not cause a substantial wrong or miscarriage of justice.

The jury had the option to convict of manslaughter if they doubted the appellant's intent, but chose to convict of murder.

The appeals from conviction and sentence were dismissed.

The appellant was convicted of second degree murder after killing the victim and subsequently burying her body and cleaning the crime scene.

He appealed his conviction, arguing the trial judge misdirected the jury on the intent required for murder, the common sense inference, self-defence, and the use of post-offence conduct.

The Court of Appeal allowed the appeal and ordered a new trial, finding that the trial judge erred by failing to properly instruct the jury on how the post-offence conduct (flight, lies, and concealment of the body) could be used to infer the specific intent required for murder.

The appellant was convicted of second-degree murder after shooting a drug dealer during an aborted robbery.

At trial, he claimed self-defence, arguing the deceased reached for a gun.

The trial judge excluded evidence of the deceased's prior firearms convictions and limited the use of a witness's prior statement.

On appeal, the majority upheld the convictions and sentence, finding the trial judge did not err in excluding the disposition evidence or in his instructions on the prior statement.

The dissenting judge would have allowed the appeal and ordered a new trial on the basis that the deceased's prior firearms convictions were probative of whether he was armed.

The appellant appealed his dangerous offender designation and indeterminate sentence following convictions for three home invasions involving robbery and sexual assault.

He argued the trial judge misapprehended expert evidence regarding his risk of recidivism and amenability to treatment, and erred by applying the pre-July 2008 Criminal Code sentencing regime.

The Court of Appeal dismissed the appeal, finding no misapprehension of the expert evidence, which supported a high risk of violent or sexual recidivism.

The court also held that applying the new regime would not have changed the outcome, as the appellant met neither the test for a long-term offender designation nor a determinate sentence.

The application to admit fresh evidence was also denied.

The appellants pleaded guilty to aggravated assault and forcible confinement after subjecting a vulnerable victim to 17 days of torture.

The sentencing judge rejected a joint submission for one appellant and the Crown's proposal for the other, imposing significantly higher sentences without providing reasons or allowing counsel to make submissions.

The Court of Appeal found this was an error in principle, as a joint submission should not be rejected unless it is contrary to the public interest and brings the administration of justice into disrepute.

The appeals were allowed and the sentences were reduced to align with the original submissions.

The appellant was convicted of second degree murder for the strangulation of a 54-year-old woman.

The Crown's case was circumstantial, relying heavily on the testimony of the appellant's girlfriend, who stated he returned home with blood on his clothes and said something terrible had happened to the victim.

On appeal, the appellant sought to introduce fresh evidence of his girlfriend recanting her trial testimony.

The Court of Appeal dismissed the motion to introduce fresh evidence, finding the recantation was fabricated and the product of collaboration between the appellant and the witness.

The Court also dismissed the conviction appeal, finding the verdict was reasonable and the trial judge made no reversible errors, and upheld the 13-year period of parole ineligibility.

The appellant appealed his conviction for sexual assault and his sentence as a dangerous offender.

He argued the trial judge made several errors in his jury instructions, including failing to charge on the mens rea of consent and improperly instructing on prior consistent statements.

He also argued the sentencing judge committed a Johnson error by failing to consider a long term offender designation before imposing a dangerous offender designation.

The Court of Appeal dismissed the conviction appeal, finding no errors in the jury charge.

The sentence appeal was also dismissed, as the court found no reasonable possibility that a long term offender designation would have been imposed given the expert evidence of the appellant's high risk to reoffend.

The Court addressed whether Crown-requested police background checks of prospective jurors were permissible and what disclosure duties followed from that practice.

It held that limited criminal-record checks to assess juror eligibility are permissible, and that relevant information obtained for jury selection must be disclosed to the defence.

Applying the appellate non-disclosure framework, the Court found no reasonable possibility that disclosure failures changed jury composition.

The Court also held the impugned conduct did not meet the threshold for miscarriage of justice based on appearance of unfairness.

The appeals from conviction were dismissed.

The appellant challenged jury convictions for sexual assault and invitation to sexual touching arising from allegations made by a child complainant who, at trial, had no recollection of the alleged abuse or of making prior complaints.

The appeal turned on whether out-of-court statements to foster parents and police satisfied the reliability branch of the principled hearsay exception.

The court held that the trial judge misapprehended key reliability indicators, failed to grapple with leading questions, inconsistencies, delay in disclosure, and the absence of oath or meaningful truth-lie understanding, and wrongly denied the defence an opportunity to cross-examine the declarant before the jury.

The convictions were set aside and, given the long procedural history, prior successful appeal, substantial sentence served, and difficulty of a third prosecution, a stay of proceedings was entered.

The appellant was convicted of manslaughter after fatally stabbing a man in his garage.

At trial, the appellant argued self-defence, claiming the deceased was a loan shark who had threatened him.

The trial judge instructed the jury that while there is no obligation to retreat from one's own property, the failure to retreat is a factor to consider in assessing self-defence.

The Court of Appeal held this instruction was an error, as a person is not required to retreat from their own home in the face of an attack.

The appeal was allowed and a new trial ordered.

The appellant appealed his sentence of nine years' imprisonment and his designation as a long-term offender following guilty pleas to aggravated assault and other offences arising from a domestic stabbing.

The Court of Appeal found the sentencing judge erred in designating the appellant a long-term offender because she failed to find that his pattern of aggressive behaviour was 'persistent' under the dangerous offender criteria, and failed to separately analyze whether there was a substantial risk to reoffend.

The long-term offender designation was set aside, but the nine-year sentence for the predicate offences was affirmed as fit.