David Brian Russell

The appellant appealed convictions for two counts of assault arising from incidents involving his spouse.

He argued that the trial judge reversed the burden of proof and that his trial counsel provided ineffective assistance.

The summary conviction appeal court held that the trial judge’s reasons, read contextually, correctly articulated and applied the burden of proof and properly applied the W.D. framework when assessing credibility.

The court further held that the appellant failed to demonstrate a miscarriage of justice resulting from alleged deficiencies in trial counsel’s preparation, cross-examination strategy, or courtroom performance.

The appeal was dismissed.

At a preliminary inquiry into a charge of first-degree murder, the Crown alleged that the accused intentionally shot his wife following marital discord and separation discussions.

The defence argued the shooting was accidental, occurring during a struggle over a firearm as the accused attempted suicide.

The court found sufficient evidence of intentional shooting based on the common sense inference from pointing and firing a loaded handgun at close range, forensic evidence regarding trigger force and muzzle proximity, circumstantial evidence of the victim's incapacity at the time of shooting, and evidence of animus.

The court also found some evidence of forcible confinement based on ante-mortem and peri-mortem injuries and the time gap between the victim's final text and the 911 call.

The accused was committed to trial for first-degree murder.

Sentence appeal from a guilty plea involving cocaine-related offending.

The Court of Appeal held that the sentencing judge erred by adding six months based on an unproven factual premise that the appellant had negotiated for the purchase of one kilogram of cocaine, where the guilty plea record showed that fact was disputed and the Crown did not prove it.

The court further held that the appellant was entitled to some credit under the applicable framework for time spent on strict bail terms and house arrest, notwithstanding that he was also on parole subject only to standard non-restrictive conditions.

Leave to appeal sentence was granted and the sentence was reduced to 34 months.

The appellant appealed his conviction for assault, arguing the trial judge misapprehended evidence and that the verdict was unreasonable.

The appellant claimed self-defence, alleging the complainant threatened him with a screwdriver during a workplace altercation.

The Court of Appeal dismissed the appeal, finding the trial judge was entitled to accept the testimony of independent witnesses who saw no threatening behaviour by the complainant before the appellant threw a hammer at him.

The court held the verdict was not unreasonable.

The appellant appealed a sexual assault conviction from the Ontario Court of Justice, arguing the trial judge misapprehended key evidence and applied a different level of scrutiny to defence evidence than to the complainant’s testimony.

The alleged errors concerned the timing of graffiti written by the complainant in the accused’s apartment and inconsistencies in the complainant’s account of when she arrived in the city and how long she remained at the residence.

The appeal court held that the trial judge was aware of the inconsistencies and reasonably resolved them within the credibility assessment.

It further held that the reasons did not demonstrate that different standards of scrutiny were applied to the defence witnesses and the complainant.

The conviction was therefore supported by the evidence and disclosed no miscarriage of justice.

The appellant, a caregiver for an elderly man, was convicted of fraud and theft after withdrawing approximately $180,000 from his bank account over several years.

She was also convicted of defrauding the Department of Veterans Affairs.

She was sentenced to 20 months in custody, two years of probation, and ordered to pay restitution.

On appeal, she argued the trial judge erred in finding she controlled the victim, that the verdict was unreasonable, and that the restitution order failed to consider her ability to pay.

The Court of Appeal dismissed the appeal, finding the trial judge's conclusions reasonable and the restitution order appropriate given the amounts taken and the modest payment schedule imposed.

The appellant appealed a conviction for sexual assault entered after a judge-alone trial.

During the accused’s testimony, the trial judge asked improper questions requiring the accused to explain why the complainant would fabricate the allegation.

The appellate court held that such questioning is improper because it invites one witness to comment on another’s credibility and risks shifting the burden of proof.

The judge’s brief reasons failed to explain why the accused’s evidence was rejected or dispel concern that the improper questioning influenced the verdict.

The conviction was set aside and a new trial ordered.

The appellant appealed a global sentence of five years for operating a motor vehicle with a prohibited blood alcohol concentration and leaving the scene of an accident.

The appellant argued the sentencing judge erred by failing to give appropriate weight to the gap principle, failing to consider his unstable health, and relying on a rejected finding of fact.

The Court of Appeal dismissed the appeal, finding no error in principle.

The court noted the appellant's extensive record of nearly three dozen prior related convictions and evidence of continued excessive alcohol consumption during the conviction-free period.

The appellant appealed his conviction, arguing the motions judge erred in her s. 24(2) Charter analysis after finding an unlawful arrest.

The appellant contended that the motions judge's finding of good faith was inconsistent with her finding that the officers lacked reasonable and probable grounds to arrest.

The Court of Appeal dismissed the appeal, holding that the motions judge accepted the officers' evidence that they believed they had authority to arrest, and it was open to her to consider the high crime area in assessing police conduct under s. 24(2).

The appellant appealed a two-and-a-half-year sentence for fraud, arguing the trial judge failed to consider the specific immigration consequences of a sentence of two years or more.

The Court of Appeal dismissed the appeal, finding the sentence was fit given the appellant's serious criminal record for similar offences, and noting the trial judge was aware of the pending deportation order.

The appellant appealed the sentence imposed by the trial judge, arguing that a conditional sentence should have been granted and that the trial judge overemphasized deterrence.

The Court of Appeal dismissed the appeal, finding that the trial judge's conclusion that the appellant posed a danger to the community was supported by the evidence.

The court held that the trial judge did not overemphasize specific and general deterrence given the serious and frightening nature of the offences.

The appellant appealed an effective sentence of 18 months imprisonment.

He argued the trial judge erred by rejecting what amounted to a joint submission from the Crown and defence.

The Court of Appeal dismissed the appeal, finding the trial judge gave fair notice and adequate reasons for concluding the suggested sentence was contrary to the public interest, noting the appellant was an incorrigible con-man who victimized women and showed no respect for court orders.

The appellant appealed his one-year custodial sentence for fraud.

The Court of Appeal found that the trial judge erred by considering the appellant's lack of remorse as an aggravating factor.

However, the court upheld the sentence as fit, noting that the appellant abused the trust of vulnerable fellow church members, causing an elderly couple to lose their home and life savings.

Despite the appellant being a first offender and initially a victim of a fraudulent scheme himself, the principles of denunciation and deterrence warranted the custodial sentence.

The appeal was dismissed.

The appellant appealed the sentence imposed by the trial judge.

The Court of Appeal dismissed the appeal, finding no error in the sentence given the appellant's extensive criminal record and failure to take meaningful steps toward treatment.

The appellant appealed his sentence, arguing the trial judge erred by failing to give him time to pay a fine calculated based on the proceeds of crime.

The Court of Appeal dismissed the appeal, finding no error because the evidence showed the appellant had received $122,000 of the seized funds back from Canada Customs and therefore had access to the money.

The appellant pleaded guilty to production of marijuana and was sentenced to 18 months' imprisonment.

On appeal, he argued the trial judge erred by giving minimal credit for his guilty plea and imposing a sentence that was a marked departure from similar cases.

The Court of Appeal agreed, noting the appellant maintained the drugs were for personal use, the operation lacked commercial indicia, and his prior drug record was limited to possession.

The court also found the trial judge erred in treating the guilty plea as an 11th-hour plea.

The appeal was allowed and the sentence varied to 12 months' imprisonment.