Chloé Boubalos

Appeal from a conviction for second-degree murder.

The appellant admitted to being the shooter and guilty of manslaughter but contended that his intoxicated state and the suddenness of events should have created reasonable doubt as to whether he possessed the requisite mens rea for murder.

The trial judge provided a rolled-up instruction to the jury on the cumulative effect of evidence regarding intoxication on the mental element for murder.

The appellant argued the trial judge failed to adequately describe evidence of his intoxication from a bartender and evidence of a brewing altercation inside the bar.

The Court of Appeal found no error in the trial judge's approach and upheld the conviction, applying the curative proviso based on the overwhelming Crown case.

The appellant, P.M., appealed convictions for sexual interference and invitation to sexual touching involving his niece and daughter.

The Court of Appeal dismissed the appeal, upholding the trial judge’s findings that the appellant had no reasonable expectation of privacy in text messages with the complainant provided to police with her mother’s consent, that the trial judge properly excluded a sexually explicit text from an unknown sender under ss. 276 and 278.92 of the Criminal Code, and that the jury was properly instructed regarding the absence of evidence of a motive to fabricate.

The decision clarifies the law on privacy expectations in electronic communications in the context of child complainants and the admissibility of evidence of sexual knowledge.

This decision addresses a Stage 2 application under sections 276 and 278.93 of the Criminal Code regarding the admissibility of a complainant's prior sexual activity in a sexual assault and forcible confinement trial.

The accused sought to adduce evidence of a prior sexual encounter ("October incident") and the complainant's "comfort" level with the accused.

The Crown also sought to adduce evidence about a "FaceTime interlude" where the accused allegedly threatened to expose the complainant.

The court granted the Crown's application for the FaceTime interlude, allowing general contours but prohibiting details.

The accused's application regarding the "October incident" and "comfort" was dismissed, finding its probative value slight and substantially outweighed by the danger of prejudice and the risk of encouraging "twin myth" reasoning, which links prior sexual activity to consent or credibility.

Melissa Merritt and Christopher Fattore appealed their first-degree murder convictions.

Fattore's appeal, challenging the voluntariness of his confession, was dismissed as the court found no palpable and overriding error in the trial judge's decision.

Merritt's appeal, however, was allowed.

The Court of Appeal found that the trial judge erred in jury instructions regarding the use of a partially unintelligible "airport intercept statement" as an admission of guilt, and also misdirected the jury on the burden of proof concerning innocent explanations for "Walmart omissions" (after-the-fact conduct).

Consequently, Merritt's conviction was set aside, and a new trial was ordered for her.

The appellant was convicted of possessing and making child pornography and received a conditional sentence.

He appealed his conviction, arguing the trial judge erred in finding a position of trust and in failing to apply the private use exception to sexting.

The Crown appealed the sentence, arguing it was unfit.

The Court of Appeal dismissed the conviction appeal, upholding the finding of a position of trust and declining to expand the private use exception to include sexting.

While agreeing that the conditional sentence was unfit and a carceral sentence should have been imposed, the court dismissed the Crown's sentence appeal due to the appellant having largely served the conditional sentence, deeming it inappropriate to substitute a carceral term at that stage.

The applicant, S.T., sought release pending the determination of his appeal from a sexual assault conviction and a 28-month penitentiary sentence.

The Court of Appeal for Ontario considered the criteria under s. 679(3) of the Criminal Code, specifically whether the appeal was frivolous, if the applicant would surrender, and if detention was necessary in the public interest.

The court found the appeal was not frivolous and that the applicant would surrender.

On the public interest criterion, balancing enforceability and reviewability, the court determined that the anticipated delay in hearing the appeal, relative to the sentence length, weighed in favour of release.

The court also addressed the suitability of an out-of-province surety, concluding that the Criminal Code's provisions for enforcing forfeiture orders (s. 771(3.1)) permit writs of fieri facias to be delivered to sheriffs in other provinces, thereby accepting the Vancouver-based brother as a suitable surety.

The application for release was granted, with bi-weekly reporting but no curfew.

The appellant sought leave to appeal his sentence of 9 months in custody, plus 12 months’ probation, for indecent assault.

He argued that the trial judge erred by not imposing a conditional sentence, particularly given his health issues and fear of contracting COVID-19 in prison, and by failing to give sufficient weight to rehabilitation and specific deterrence.

The Court of Appeal dismissed the appeal, finding no reversible error in the trial judge's decision.

The court affirmed that the principles of denunciation and deterrence were paramount in this case, outweighing mitigating factors, and reiterated that concerns about incarceration conditions due to health or COVID-19 are best addressed by correctional and parole authorities, not by disproportionately reducing a fit sentence.

The appellants, Elias Akhi and Jezreel Moxam, appealed their convictions for robbery, assault with a weapon, and other offences arising from a home invasion.

The Court of Appeal found serious errors in the trial judge's jury instructions, specifically regarding party liability (aiding and common intention) and the failure to adequately delineate between the two accused and the multiple counts.

The instructions were deemed confusing and insufficient to properly equip the jury.

Consequently, the convictions were quashed, and a new trial was ordered for both appellants.

During a medical malpractice trial, the defendant physician moved for production of three expert reports obtained by the plaintiff's former solicitors in a related solicitor's negligence action.

The plaintiff opposed, asserting solicitor-client or litigation privilege.

The court determined the reports were subject to litigation privilege, not solicitor-client privilege, and that the plaintiff had implicitly waived this privilege by commencing the solicitor's negligence action and failing to challenge the former solicitor's defence pleading, which referenced these reports as central to denying negligence.

The motion for production was granted.

The Plaintiffs in a medical negligence action brought a motion seeking leave to admit an expert's affidavit and discovery transcripts of two family members (one deceased, one unwell) into evidence at trial.

The court dismissed the request to admit the expert's affidavit, finding it did not comply with Rule 53 requirements for expert reports and would unfairly deprive the defence of cross-examination.

However, the court granted leave to admit the discovery transcripts of the family members under Rule 31.11(6), subject to the Plaintiffs immediately quantifying their Family Law Act claims and providing the family doctor's notes for the relevant period to the defence, to ensure fairness given the inability of the family members to testify.