David Lepofsky

The appellant was convicted of second degree murder following a stabbing in an apartment building.

On appeal, he argued that the eyewitness identification was irredeemably flawed and tainted by the witness's own investigation and improper police video identification procedures, rendering the verdict unreasonable.

He also challenged the jury instructions on identification evidence, the lack of a W. (D.) instruction regarding a witness's testimony, and the instruction on the mens rea for murder.

The Court of Appeal dismissed the appeal, finding that the identification evidence, when combined with strong circumstantial evidence including elevator security footage and phone records, reasonably supported the conviction.

The court also found no reversible errors in the jury instructions.

The appellant appealed convictions and sentence arising from historical sexual assault allegations involving two complainants in a family context.

The court held that, although the reasons were capable of appellate review and the correct W.(D.) framework was identified, the trial judge committed reversible errors by misapprehending evidence of animus, misapprehending the appellant's evidence concerning an earlier allegation, and improperly treating a prior disclosure as negating the defence theory of collusion.

The prior disclosure was not sufficiently consistent with the later allegations to function as a prior consistent statement rebutting fabrication.

The curative proviso was unavailable because the convictions were supportable but not inevitable.

A new trial was ordered on all counts, including those previously stayed under the Kienapple principle.

The appellant appealed his convictions for possession of cocaine for the purpose of trafficking and possession of a firearm.

He argued the trial judge erred in finding the police officer acted in good faith and in admitting the evidence under s. 24(2) of the Charter after finding a s. 8 breach during a vehicle search.

The Court of Appeal dismissed the appeal, finding no error in the trial judge's good faith determination and deferring to her s. 24(2) balancing.

The appellant was convicted of manslaughter after stabbing his housemate, who subsequently died of a heart attack due to severe underlying heart disease.

On appeal, the appellant argued the jury's finding on causation was unreasonable because the medical expert could not definitively state the stab wounds contributed to the death.

The Court of Appeal dismissed the appeal, holding that the jury was entitled to consider non-medical evidence, including the circumstances of the altercation, which reasonably linked the extreme stress and blood loss from the attack to the victim's death.

The appellant appealed his conviction for first degree murder, arguing that he was deprived of a fair trial due to unfair and inflammatory cross-examination and jury addresses by Crown counsel.

The appellant also sought to introduce fresh evidence of alleged juror misconduct based on online comments made after the trial.

The Court of Appeal dismissed the appeal, finding that while some of the Crown's comments were ill-advised, they did not deprive the appellant of a fair trial when viewed in the context of the entire proceedings.

The court also dismissed the motion to admit fresh evidence, concluding it did not prove Crown misconduct or compromise the integrity of the trial.

The appellants appealed their sentences after their aggravated assault convictions were set aside, leaving only convictions for common assault.

The Court of Appeal found that deference to the trial judge was not warranted given the changed circumstances.

Noting the appellants' youth, first-offender status, lack of serious injury to the victim, and the time elapsed since the offence, the Court granted leave to appeal, allowed the appeals, and imposed conditional discharges with two years of probation and 200 hours of community service.

The appellant appealed his convictions and sentences for robbery with a firearm and related offences arising from a home invasion.

The Crown's case relied entirely on circumstantial evidence, specifically DNA found on bandanas and a police baton seized from the appellant's apartment.

The Court of Appeal dismissed the conviction appeal, finding the jury's verdicts were not unreasonable.

However, the sentence appeal was allowed to make a two-year sentence for weapon possession concurrent rather than consecutive, reducing the net sentence to five years and four months.

The appellant was convicted of impaired driving, dangerous driving, and flight from police causing bodily harm after his car crashed.

At trial, the sole issue was whether the appellant was driving.

The trial judge rejected the appellant's testimony that he was asleep in the back seat, partly because defence counsel failed to put this version of events to the other occupants of the car during cross-examination, breaching the rule in Browne v. Dunn.

The trial judge also relied on a police officer's observations of the vehicle's erratic driving to confirm the reliability of the other occupants' testimony.

The Court of Appeal dismissed the appeal, finding no error in the trial judge's application of the rule in Browne v. Dunn or his use of confirmatory evidence.

The appellant was convicted of second-degree murder after shooting a drug dealer during an aborted robbery.

At trial, he claimed self-defence, arguing the deceased reached for a gun.

The trial judge excluded evidence of the deceased's prior firearms convictions and limited the use of a witness's prior statement.

On appeal, the majority upheld the convictions and sentence, finding the trial judge did not err in excluding the disposition evidence or in his instructions on the prior statement.

The dissenting judge would have allowed the appeal and ordered a new trial on the basis that the deceased's prior firearms convictions were probative of whether he was armed.

The appellants, two drug dealers, were convicted of first-degree murder after killing a customer who had ripped them off.

On appeal, they argued the trial judge erred in instructing the jury on constructive first-degree murder, the application of the W. (D.) formula, and the Vetrovec caution.

One appellant also argued the trial judge failed to instruct on the defence of accident and the evidentiary value of an unaccepted guilty plea.

The Court of Appeal found no reversible errors in the jury instructions and dismissed the appeal.

The trial judge found the accused guilty of gun-related offences and adjourned for sentencing.

Months later, the trial judge stated he had reconsidered the findings of guilt, reopened the matter, and entered acquittals without hearing submissions from the Crown.

The Crown appealed.

The Court of Appeal held that while a trial judge sitting alone has jurisdiction to vacate a conviction prior to sentencing in exceptional circumstances, the judge erred in law by entering an acquittal without giving the parties an opportunity to make submissions.

The appropriate remedy was to declare a mistrial.

The appeal was allowed and a new trial ordered.

The appellants were convicted of common assault and aggravated assault following a bar fight.

They appealed their aggravated assault convictions, arguing the trial judge erred by failing to properly instruct the jury on the doctrine of common purpose under s. 21(2) of the Criminal Code, despite the Crown heavily relying on it.

The Court of Appeal agreed, finding that the trial judge's brief reference to a 'joint criminal enterprise' without a full explanation of the elements of common purpose left the jury without adequate guidance.

The appeals were allowed, the convictions for aggravated assault were set aside, and a new trial was ordered.

The appellant was convicted of second degree murder and theft under $5,000 after stabbing his father at least 50 times.

He was sentenced to life imprisonment with no parole eligibility for 15 years.

On appeal, the appellant argued that the trial judge's rolled up instruction to the jury was deficient and that the 15-year parole ineligibility period was harsh and excessive.

The Court of Appeal dismissed the conviction appeal, finding the jury charge exemplary and thorough in instructing the jury to consider all evidence regarding the appellant's state of mind.

The sentence appeal was also dismissed, as the trial judge properly considered the appellant's character, lack of remorse, and the extreme brutality of the offence in determining the period of parole ineligibility.

The appellant appealed his convictions for firearm-related offences, arguing the trial judge erred in admitting evidence obtained during an illegal search of his apartment.

The police had executed a search warrant without reasonable and probable grounds.

The trial judge excluded drug-related evidence but admitted the firearms evidence under s. 24(2) of the Charter, applying the Grant framework.

The Court of Appeal upheld the trial judge's decision, finding no error in the conclusion that the police did not act in bad faith and that there is a heightened public interest in the prosecution of firearms offences.

The young person appealed their conviction and sentence for robbery.

The appellant argued the trial judge misapprehended circumstantial evidence regarding identification and erred in principle during sentencing by departing from a probation officer's recommendation.

The Court of Appeal dismissed the conviction appeal, finding the trial judge correctly assessed the circumstantial evidence matching the appellant's clothing and appearance to the perpetrators.

The sentence appeal was also dismissed, as the trial judge made no error in principle and was entitled to weigh the appellant's poor behaviour in pre-trial custody.

The appellant appealed the dismissal of his application under s. 745.6(1) of the Criminal Code for a 'faint hope' hearing to reduce his parole ineligibility.

He argued the application judge applied a higher threshold by using the phrase 'realistic probability of success' instead of 'reasonable prospect'.

The Court of Appeal dismissed the appeal, finding it unnecessary to resolve the semantic issue because the appellant failed to meet the statutory test given his lack of remorse, institutional misconduct, and the nature of his first-degree murder conviction.

The appellant was convicted of manslaughter and robbery with a firearm.

On appeal, he argued the trial judge erred by admitting hearsay evidence of a witness's prior testimony identifying him from a photo array, and by misdirecting the jury on the use of evidence regarding a black man fleeing the scene.

The Court of Appeal allowed the appeal, finding the hearsay evidence lacked threshold reliability because the witness's professed memory loss prevented meaningful cross-examination.

The court also held the jury instruction on flight was misleading.

The curative proviso could not be applied, and a new trial was ordered.

The appellant appealed the sentence imposed following a guilty plea for a serious violent offence.

The Court of Appeal found no error in principle, noting the sentencing judge gave appropriate weight to the guilty plea and that the sentence was fit given the appellant's escalating record for violence.

The appeal was dismissed.

The appellant, who was 17 at the time of the offence, appealed his conviction for second degree murder arising from a robbery.

He argued the trial judge erred in instructing the jury on the defence of intoxication, the common sense inference, and the use of bad character evidence obtained during a 'Mr. Big' undercover operation.

The Court of Appeal found that the jury instructions, read as a whole, adequately conveyed the necessary legal principles regarding intoxication and intent.

The Court also held that the failure to give a standard limiting instruction on bad character evidence was not a reversible error given the defence's tactical reliance on that evidence to impugn the reliability of the appellant's confession.

The appeal was dismissed.

The appellant was convicted by a jury of sexually assaulting two young brothers.

During the trial, a Crown witness testified that his son had called the appellant a 'rapist pedophile'.

The trial judge refused the appellant's application for a mistrial, opting instead to give a mid-trial curative instruction to the jury.

On appeal, the appellant argued the trial judge erred in refusing the mistrial and in failing to repeat the caution in his closing instructions.

The Court of Appeal dismissed the appeal, finding the trial judge's exercise of discretion was not clearly wrong and the mid-trial instruction was sufficient to remove the potential prejudice.