Chris Rudnicki

This is an appeal from conviction where the appellant argued the Crown breached confidential informant privilege by disclosing information to a co-accused.

The Court of Appeal found the trial judge erred by applying an overly narrow standard for determining a privilege breach, emphasizing that any information that *might tend* to identify an informant is protected.

The Crown's failure to protect this near-absolute privilege, despite repeated warnings, constituted an abuse of process.

The convictions were set aside, and a stay of proceedings was entered.

The appellant, Kevin Bacchus, appealed his convictions for aggravated assault and assault with a weapon, stemming from a physical altercation with the complainant.

The appeal raised three grounds: unreasonable verdict, misapprehension of evidence, and error in the use of an audio recording.

The Court of Appeal dismissed all grounds, affirming the trial judge's findings.

The court reiterated the high bar for unreasonable verdicts under the Beaudry/Sinclair error and found the alleged misapprehensions immaterial.

The sentence appeal was abandoned.

The appellant, Robert Casarsa, appealed his conviction for two counts of sexual assault and sought leave to appeal his sentence.

The conviction appeal raised issues regarding the trial judge's assessment of collusion risk between complainants and the alleged reversal of the onus of proof concerning corroborating evidence.

The sentence appeal sought to introduce fresh evidence of job loss and challenged the denial of a conditional sentence.

The Court of Appeal dismissed both the conviction and sentence appeals, finding no material errors in the trial judge's reasoning on conviction and concluding that the fresh evidence or conditional sentence arguments would not have altered the imposed sentence.

The appellant, S.C., appealed his sexual assault conviction, arguing the trial judge failed to properly instruct the jury on the use of the complainant's prior consistent statement (a Facebook message).

The Crown had invited the jury to use this statement as corroboration and the appellant's lack of response as evidence of guilt.

The Court of Appeal found that the trial judge erred by not providing a limiting instruction, which was crucial given the Crown's impermissible use of the evidence and the central role of the complainant's credibility.

The court reiterated that prior consistent statements are presumptively inadmissible for truth or corroboration and require limiting instructions even if admissible under an exception or as after-the-fact conduct.

The appeal was allowed, and a new trial was ordered.

The appellant, David Griffith, appealed his convictions for possession for the purposes of trafficking and possessing proceeds of crime, arguing that the trial judge erred in admitting evidence obtained in breach of his Charter rights (ss. 8, 9, 10(b)).

The trial judge found breaches but admitted the evidence under s. 24(2) of the Charter, applying the *Grant* analysis.

The Court of Appeal upheld the trial judge's decision, finding no error in the *Grant* analysis, specifically regarding the lawfulness of the pat-down search incident to investigative detention and the application of discoverability.

The conviction appeal was dismissed, and the sentence appeal was dismissed as abandoned.

The appellant appealed his sentence, arguing that the trial judge erred by imposing a "straitjacket" on the sentencing process by expressing a starting point for the sentence.

The Court of Appeal found no error, concluding that the trial judge carefully explained how a fit global sentence was reached, considering all mitigating and aggravating circumstances, and properly deducted credit for time served.

The appeal was dismissed.

The appellant appealed his convictions for sexual interference and sexual assault, and sought leave to appeal his sentence.

The appeal raised issues regarding alleged improper cross-examination by Crown counsel concerning the appellant's attraction to the complainant, and claims of uneven scrutiny of evidence by the trial judge.

The Court of Appeal found the cross-examination permissible given the specific circumstances of the case, which involved a non-physically forced relationship with an underage teenager.

The court also found no error in the trial judge's assessment of witness credibility or the fairness of the trial.

Regarding the sentence, the court affirmed that the six-year and six-month imprisonment for sexual interference was not demonstrably unfit, considering aggravating factors such as breach of trust, grooming, and the victim's age, consistent with sentencing principles for child sexual offences.

The conviction appeal was dismissed, and the sentence appeal was also dismissed.

The Crown appealed stays of proceedings granted to three respondents on the basis of their s. 11(b) Charter right to trial within a reasonable time.

The trial judge had found breaches of the Jordan ceilings, but the Court of Appeal found that she did not adequately account for the systemic disruptions to court operations caused by the COVID-19 pandemic as discrete exceptional circumstances.

The Court provided guidance on how trial courts should account for pandemic-related delays, emphasizing a holistic approach and treating province-wide closures, jury blackouts, local restrictions, and backlog prioritization as discrete exceptional circumstances.

The appeals were allowed, and the stays of proceedings were set aside.

The appellant, Ersan Buakasa, appealed his conviction for firearm-related offences, arguing that the gun and ammunition found in his car should have been excluded as evidence due to violations of his Charter rights (ss. 8, 9, 10(a), 10(b)).

The trial judge had found the warrantless search of the car justified as a stand-alone safety search, and while finding breaches of ss. 10(a) and (b), did not exclude the evidence under s. 24(2).

The Court of Appeal dismissed the appeal, upholding the trial judge's finding that the search was a lawful and justified safety search.

The court affirmed that the police officer had reasonable grounds to believe there was an imminent threat to public safety, justifying the search, and that the evidence should not be excluded even if there were Charter breaches.

The accused, Kevin Barreau, was charged with five Criminal Code offences related to human trafficking and procuring.

The trial involved complex procedural issues, including an application to excuse a witness (P.C. Rice) due to PTSD and a Charter application for a stay of proceedings based on alleged police misconduct, including racial slurs and denial of counsel.

The court found the accused guilty of human trafficking, receiving material benefit from human trafficking, procuring, and advertising sexual services.

The charge of facilitating another offence was acquitted.

The Charter application for a stay was dismissed, but a s. 10(b) breach (denial of counsel) was found, entitling the accused to sentencing credit.

The appellant appealed his convictions for sexual assault causing bodily harm, unlawful confinement, choking, and uttering a death threat, primarily alleging ineffective assistance of trial counsel.

The Court of Appeal found trial counsel's representation ineffective due to eliciting highly prejudicial bad character evidence, failing to seek disclosure of an arrest warrant and criminal record for the complainant, and providing inadequate advice on challenging jurors for cause based on racial prejudice.

The court concluded that the cumulative effect of these deficiencies undermined the reliability of the jury's verdict, rendering it unreliable.

The appeal was allowed, convictions set aside, and a new trial ordered.

The appellant, Nicholas Wong, appealed his dangerous offender designation and indeterminate sentence.

He was convicted of two counts of attempted murder with a firearm and other related offences.

The Crown sought the dangerous offender designation based on a pattern of repetitive and persistent aggressive behaviour, including prior firearm possession offences.

Wong argued the sentencing judge erred by considering firearm possession as part of the pattern and by admitting expert evidence on gang affiliation and prior gun use.

The Court of Appeal dismissed the appeal, finding no errors in the sentencing judge's determination that Wong met the dangerous offender criteria, nor in the admission of the challenged evidence.

Donovan Shah appealed his convictions for possession of heroin, methamphetamine, fentanyl for trafficking, and possession of proceeds of crime.

The appeal raised two grounds: whether the trial judge erred in denying leave to cross-examine the search warrant affiant regarding the inclusion of information about dismissed charges, and whether the trial judge improperly used Shah's pretrial silence to assess his credibility.

The Court of Appeal dismissed the appeal, finding no error in the trial judge's decision to deny cross-examination and concluding that the trial judge did not rely on pretrial silence in assessing credibility.

The appellant, Vadim Ilia, appealed convictions for accessing and possessing child pornography, arguing the trial judge erred in denying his Charter application to exclude evidence obtained via search warrants.

The trial judge had found a Charter violation due to a misdescription in one warrant but admitted the evidence, and relied on a prior 2015 investigation to establish reasonable grounds for the warrants, despite the Crown's concession against its use for that purpose.

The Court of Appeal dismissed the appeal, finding that the 2015 investigation was properly available for consideration and, in any event, there was no "gap" in the reasonable grounds for the warrants, as the possibility of third-party internet access was not sufficiently weighty to undermine the probability of the IP address being used by someone at the linked address.

The appellant appealed his convictions for drug trafficking and possession of proceeds of crime, arguing that his s. 10(b) Charter right to counsel was breached upon arrest.

The Court of Appeal reviewed the trial judge's factual finding regarding the appellant's response to the police's offer of counsel ("I will at some point").

The court found no palpable and overriding error in the trial judge's determination that this statement did not constitute an invocation of the right to counsel, consistent with established jurisprudence.

As a result, no Charter breach occurred, and the issue of excluding evidence under s. 24(2) of the Charter was not considered.

The appeal was dismissed.

The appellants were convicted of distributing child pornography, advertising sexual services, procuring a person under 18, and receiving financial benefit from sexual services provided by a minor.

They appealed their convictions, arguing errors in Vetrovec instruction and jury misdirection on procurement.

They also sought leave to appeal their sentences, alleging the trial judge made findings of fact inconsistent with the jury's verdict.

The Court of Appeal dismissed the conviction appeal, finding no error in the Vetrovec decision or the jury instructions on procurement, noting the overwhelming evidence of control.

On the sentence appeal, the court agreed the trial judge erred by relying on violence allegations for sentencing after acquittals on related charges.

While this reduced the fit sentence for procurement, the overall global sentences remained appropriate for one appellant.

For the other appellant, fresh evidence regarding his rehabilitation and current circumstances led to a stay of execution for the remainder of his sentence.

The appellant was convicted by a jury of several firearm offences and assault.

He appealed both his conviction and sentence.

The conviction appeal grounds included challenges to witness credibility due to inconsistent statements and alleged improper Crown cross-examination.

The sentence appeal argued that the trial judge erred in principle by treating the statutory minimum sentence as a "straitjacket" and failing to adequately consider mitigating factors and rehabilitative prospects.

The Court of Appeal dismissed both the conviction and sentence appeals, affirming the trial judge's handling of witness credibility and the Crown's cross-examination, and upholding the sentence as a careful balancing of aggravating and mitigating factors.

The appellant appealed his conviction for sexual assault, arguing the trial judge erred by failing to consider the impact of possible inadvertent tainting on the complainant’s evidence, by rejecting the appellant’s testimony based on an unreasonable inference, and in refusing to consider the appellant’s mental disability in assessing his testimony.

The Court of Appeal dismissed the appeal, finding that the trial judge was alive to the potential for inadvertent tainting, that any errors in inference regarding the appellant's testimony were harmless, and that the trial judge appropriately dealt with the intellectual disability evidence for testimonial accommodation but not for credibility assessment as it was not admitted for that purpose.

The appellant appealed his conviction for driving while impaired by drug, arguing unreasonable delay under s. 11(b) of the Charter, continuity issues with a urine sample, and improper use of compelled statements.

The appeal court found the trial judge erred by treating the COVID-19 pandemic as an automatic deduction for delay without analyzing the Crown's failure to provide timely disclosure.

The net delay exceeded the Jordan ceiling.

The court also found the trial judge erred by allowing the Crown to cross-examine the appellant on statements made to a Drug Recognition Evaluator without first holding a voir dire to prove voluntariness.

The appeal was allowed and a stay of proceedings was entered.

The applicant, Corey Hurren, brought a motion under s. 684 of the Criminal Code for state-funded counsel to assist with his sentence appeal, citing financial impecuniosity and mental health issues.

The Crown opposed, arguing the appeal lacked merit.

The motion judge dismissed the application, finding that while the applicant met the financial eligibility, the proposed sentence appeal was devoid of arguable merit.

The judge concluded that the sentencing judge's findings regarding the political motivation of the offences were reasonable and that any error in considering lack of remorse as an aggravating factor did not impact the fitness of the six-year sentence, given the egregious nature of the crimes.

The court also determined that the appeal could be effectively argued without counsel.