David E. Harris

Appeal from a first degree murder conviction arising from the death of a victim who was strangled and subsequently subjected to post-mortem sexual interference.

The appellant challenged the admission of confessions made during a "Mr. Big" undercover operation, the validity of a one-party consent wiretap authorization, and the first degree murder conviction based on section 231(5)(b) of the Criminal Code.

The court upheld the conviction, finding that the Mr. Big statements were admissible under the Hart test, the wiretap authorization was properly issued, and the evidence supported a finding that the murder and sexual assault formed a single continuous transaction despite the post-mortem nature of some sexual acts.

The appellant was convicted of first-degree murder after a second trial following the Crown's successful appeal of his acquittal at the first trial.

The key difference between the trials was the admission of expert evidence from Mark Totten regarding the meaning of teardrop tattoos in gang culture.

At the first trial, the trial judge excluded Totten's evidence as unreliable.

The Court of Appeal allowed the Crown's appeal and ordered a new trial, holding that Totten was qualified to give expert evidence.

At the second trial, Totten testified that a teardrop tattoo could signify one of three things: the loss of a loved one, time in prison, or the killing of a rival gang member.

He provided statistics claiming that of 290 gang members in his studies, 97 had been convicted of homicide, 71 had teardrop tattoos, and all 71 obtained the tattoo to signify killing a rival gang member.

The appellant was convicted.

On appeal, the appellant sought to introduce fresh evidence impeaching Totten's credibility and the reliability of his statistical evidence, including evidence from Totten's cross-examination in an unrelated murder trial and Totten's own research studies.

The fresh evidence demonstrated serious deficiencies in Totten's research methodology, misrepresentations regarding sample size, and unsupported statistical claims.

The Court of Appeal admitted the fresh evidence, found it sufficiently cogent to have disqualified Totten from testifying, and concluded that the absence of his evidence would reasonably have affected the verdict.

The Court allowed the appeal and ordered a new trial.

Appeal from conviction for robbery, use of an imitation firearm while attempting to commit robbery, obstructing police, and breach of recognizance.

The appellant challenged his convictions for robbery and use of an imitation firearm, arguing that the evidence showed only presence and passive acquiescence in a carjacking.

The trial judge found the appellant was the third perpetrator who entered the victim's vehicle during an armed carjacking.

The Court of Appeal upheld the convictions, finding that the appellant's conduct in getting into the stolen vehicle, fleeing with the other perpetrators, and the constellation of circumstantial evidence (including cell phone records, similar clothing, and after-the-fact conduct) supported a finding of party liability under section 21 of the Criminal Code.

The appellant appealed his voyeurism conviction, challenging the trial judge's finding of "explicit sexual activity" and the treatment of a witness's statement as an informal admission.

The court dismissed the appeal, affirming that one photograph unequivocally depicted explicit sexual activity and that the trial judge correctly considered the witness's "acknowledged evidence" as an informal admission in the context of a directed verdict motion.

The Crown appealed an acquittal on an “over 80” impaired driving charge.

The trial judge had acquitted the accused based on concerns about the misidentified serial number of an approved screening device and the officer’s failure to ask when the accused last consumed alcohol.

The appellate court held these considerations were legally irrelevant to the elements of the offence and could only have been relevant in the context of a Charter application, which had not been advanced at trial.

Applying the standard for Crown appeals from acquittals, the court found the legal error could have materially affected the verdict.

The acquittal was set aside and a new trial ordered.