Daniel J. Brodsky

The appellant pleaded guilty to numerous serious offences, including armed robberies and break and enters, after voluntarily confessing to police following a religious conversion.

He was sentenced to 22 years consecutive to a 7-year sentence he was already serving.

On appeal, the Court of Appeal found the sentence was crushing and offended the totality principle, failing to give adequate credit for his voluntary confession and guilty pleas.

The appeal was allowed and the sentences were varied to total approximately 15 years.

The appellant appealed a dangerous offender designation, arguing that the Crown must show evidence of untreatability to sustain the order.

The Court of Appeal rejected this submission and dismissed the appeal, holding that the trial judge correctly focused on whether there was a reasonable possibility of eventual control of the appellant's risk in the community.

The appellant appealed his dangerous offender designation and indeterminate sentence for the aggravated assault of a woman he had been dating.

He argued that the sentencing judge erred in excluding the possibility that his risk to the public could be managed in the community under a long-term offender designation.

The Court of Appeal dismissed the appeal, finding that the sentencing judge's conclusion that the appellant's risk could not be controlled in the community was amply supported by the record.

The appellant was convicted of first degree murder.

On appeal, he argued that his right to be present at his trial was violated when the trial judge held private, unrecorded conversations with prospective jurors during jury selection.

He also challenged the admission of statements made to undercover officers during a 'Mr. Big' operation.

The Court of Appeal held that while the private conversations were part of the trial and the appellant had a right to hear them, the procedural error caused no prejudice and was cured by the proviso in s. 686(1)(b)(iv) of the Criminal Code.

The evidentiary ground was also dismissed based on binding precedent.

The appellant appealed the sentence imposed for murder, specifically the increase of the period of parole ineligibility to 15 years.

The Court of Appeal found that the trial judge made no error of principle in inferring that the appellant had a controlling attitude toward women and that the murder involved an aspect of planning.

The sentence was within the appropriate range, and the appeal was dismissed.

The appellant sought to introduce fresh psychiatric evidence from Dr. Gojer on appeal to argue he was unfit to stand trial, Not Criminally Responsible on account of Mental Disorder (NCRMD), or should be designated a long-term offender rather than a dangerous offender.

The Court of Appeal dismissed the appeal, finding the fresh evidence did not alter the appellant's fitness under the Taylor test, failed to establish he was incapable of knowing his acts were morally wrong under the Oommen test, and did not demonstrate he could be safely managed in the community.

The appellant was found guilty by a jury of criminal harassment and invitation to sexual touching.

Prior to sentencing, psychiatric assessments suggested he may have been not criminally responsible due to mental disorder (NCRMD) at the time of the offences.

The trial judge ruled he lacked jurisdiction to enter an NCRMD verdict after the jury was discharged.

On appeal, the appellant introduced fresh psychiatric evidence.

The Court of Appeal admitted the fresh evidence under the Palmer test, set aside the convictions, and ordered a new trial, finding that the fresh evidence could reasonably be expected to have affected the result.

The Crown appealed the dismissal of a dangerous and long-term offender application and the sentence imposed for aggravated assault.

The sentencing judge had ruled that a dangerous offender designation required the predicate offence to warrant a minimum two-year sentence, similar to the long-term offender provision.

The Court of Appeal held this was an error of law, as the dangerous offender provision contains no such requirement.

The Court allowed the appeal, set aside the sentence, designated the respondent a long-term offender, and imposed a sentence of time served plus a further period of community supervision.

The Crown appealed the acquittals of two inmates charged with second-degree murder following the fatal stabbing of a fellow inmate at Kingston Penitentiary.

The trial judge acquitted the accused on the basis of self-defence under s. 34(2) of the Criminal Code.

The Crown argued the trial judge erred in finding an air of reality to the self-defence claim and in assessing its subjective elements, specifically by finding that words alone could constitute an assault.

The Court of Appeal dismissed the appeal, holding that the victim's words, considered in the context of his aggressive conduct and history of violence, were sufficient to constitute an assault, and that the trial judge properly inferred the accused's subjective state of mind from the circumstantial evidence.

The appellant appealed the dismissal of his motion for certiorari regarding his committal for trial on a charge of first degree murder.

The Court of Appeal dismissed the appeal, finding that there was a basis upon which the preliminary inquiry judge could conclude that a reasonable jury properly instructed could find the appellant guilty under section 231(5)(e) of the Criminal Code.

The appellant appealed his dangerous offender designation and sentence.

Following the Supreme Court of Canada's decision in R. v. Johnson, the Court of Appeal allowed the appeal, set aside the dangerous offender designation, and referred the matter back for a new sentencing hearing, finding this was not a rare case where the curative proviso could be applied.

The appellant was convicted of second degree murder after shooting his wife.

At trial, he raised the defence of not criminally responsible (NCR) under s. 16 of the Criminal Code.

The defence called three psychiatrists who testified that the appellant suffered from a mental disorder, while the Crown called no psychiatric evidence.

The appellant appealed the conviction, arguing the jury's guilty verdict was unreasonable as it conflicted with the uncontradicted expert evidence.

The Court of Appeal dismissed the appeal, holding that the jury was entitled to reject the factual underpinnings of the experts' opinions, which were based largely on the appellant's own statements, and to rely on other evidence surrounding the shooting to conclude the NCR defence was not established.

The Crown appealed a trial judge's decision to grant a stay of proceedings after police negligently lost a five-minute videotaped statement from an eyewitness.

The trial judge found the loss breached the respondents' s. 7 Charter rights and prejudiced their ability to make full answer and defence.

The Court of Appeal agreed there was a s. 7 breach but held that a stay was inappropriate, as the lost evidence did not cause irreparable harm to the integrity of the justice system or such prejudice that no other remedy would suffice.

The Court noted other remedies, such as excluding the identification evidence, were available.

The stay was set aside and a new trial ordered.

The appellant, who had a long history of psychiatric disorders and was found not criminally responsible by reason of mental disorder, challenged the constitutionality of the Criminal Code provisions governing the disposition of NCR accused.

He argued that section 672.54 of the Criminal Code violated sections 7 and 15(1) of the Charter.

The Supreme Court of Canada, relying on its concurrent decision in Winko, held that the provisions do not violate the Charter as they are carefully crafted to protect the liberty of the NCR accused while ensuring public safety.

The appeal was dismissed.