David Lepofsky

The appellant, an aboriginal offender, was convicted of second degree murder and sentenced to life imprisonment with a 12-year parole ineligibility period.

He appealed his conviction and sentence, arguing that the trial judge erred in dismissing his Charter application for a judge-alone trial without Crown consent, and that the jury instructions regarding extreme intoxication and the standard of proof were flawed.

He also argued the trial judge failed to properly apply Gladue principles in sentencing.

The Court of Appeal dismissed the appeal, finding no errors in the trial judge's rulings on the Charter application, jury instructions, or the application of Gladue principles to the parole ineligibility period.

The appellant, an inmate, was convicted of second-degree murder for stabbing a fellow inmate and was sentenced to life imprisonment with 18 years of parole ineligibility.

He appealed the conviction, arguing errors in the jury instructions regarding self-defence, manslaughter, after-the-fact conduct, and character evidence.

The Court of Appeal dismissed the conviction appeal, finding no errors in the jury charge.

However, the Court allowed the sentence appeal, finding the trial judge erred by allowing the jury to hear evidence of the appellant's prior attempted murder conviction before making their parole ineligibility recommendation.

The parole ineligibility period was reduced to 16 years.

The appellant appealed from a Summary Conviction Appeal Judge's decision upholding his conviction and sentence.

The Court of Appeal found no error in the SCAJ's decision regarding conviction, as the trial judge properly assessed the complainant's evidence and gave adequate reasons.

On sentence, the Crown conceded the SCAJ erred in imposing a $2,000 fine alongside custody and probation, and in imposing a DNA order when the Crown had not appealed the trial judge's refusal to make one.

The fine and DNA order were struck, but the 100-hour community service order was upheld.

The appeal from conviction was dismissed, and the appeal as to sentence was allowed in part.

The Crown appealed the respondents' acquittals for criminal negligence causing death following a fatal horseback riding accident involving a ten-year-old novice rider.

The Crown argued the trial judge erred in excluding evidence of prior incidents involving the horse and expert evidence regarding safe trail ride operations.

The Court of Appeal found that the trial judge erred in excluding one prior incident and the expert evidence, as the expert evidence met the necessity criterion.

However, the appeal was dismissed because the Crown failed to demonstrate with a reasonable degree of certainty that the verdicts would not necessarily have been the same had the errors not occurred.

The appellants appealed their convictions for possession of stolen property and fraud.

The fraud conviction related to the sale of a rebuilt truck.

The Court of Appeal quashed the fraud conviction and entered an acquittal, finding the indictment alleged the victim was defrauded of the truck itself, whereas the evidence only supported fraud of the purchase money.

The Court also quashed the possession convictions and ordered a new trial, finding the trial judge's jury instructions confusingly suggested that knowledge of an obliterated VIN was sufficient to establish the mens rea for possession of stolen property, rather than requiring proof of knowledge that the property was actually obtained by crime.

The appellant appealed his third conviction for sexual assault, arguing the trial judge erred in assessing defence evidence.

The Court of Appeal found the trial judge improperly discounted defence witnesses' testimony because they had to reconstruct events years later, holding the defence to an impossible standard.

Given that this would be the appellant's fourth trial for an incident that occurred 13 years prior, the Court concluded that proceeding further would violate the community's sense of fair play.

The appeal was allowed, the conviction set aside, and a stay of proceedings entered.

The appellant appealed a two-year sentence, conceding that the sentence was fit but arguing it was improperly imposed.

The Court of Appeal distinguished the case from R. v. Luther, noting the sentence was fit and exactly what the appellant had requested at trial.

Leave to appeal was granted, but the appeal was dismissed.

The appellant appealed his summary conviction for harassment and sought to introduce fresh evidence.

The Court of Appeal dismissed the application to introduce fresh evidence, finding it did not meet the Palmer threshold.

The Court also dismissed the appeal, finding no error in the appeal judge's endorsement of the trial judge's conclusion that the appellant's conduct was persistent, ongoing, constituted harassment, and was not trifling in nature.

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, an aboriginal offender, appealed his 9-year sentence for a brutal and planned sexual assault involving a home invasion and stabbing.

He argued the trial judge failed to give due consideration to s. 718.2(e) of the Criminal Code.

The Court of Appeal dismissed the appeal, noting the trial judge properly applied Gladue principles and found that for such a violent and serious offence, the sentence for an aboriginal offender would be similar to that of a non-aboriginal offender.

The appellant was convicted of first and second-degree murder.

On appeal, he argued that the trial judge erred by failing to give a Vetrovec warning regarding the principal Crown witness, an alleged accomplice who had originally been charged with the murders.

The Court of Appeal held that while the trial judge erred in law by failing to give the mandatory warning, the error was cured by the application of the proviso under s. 686(1)(b)(iii) of the Criminal Code, as the jury was sufficiently alerted to the dangers of the witness's evidence.

The court also dismissed several other grounds of appeal relating to bad character evidence, criminal records, reply evidence, post-offence conduct, reasonable doubt, and self-defence.

The appellant pleaded guilty to five counts of sexual assault with a weapon against his former spouse and was sentenced to 10 years' imprisonment, consecutive to a sentence he was already serving for a separate sexual assault.

On appeal, the appellant argued the trial judge erred in finding he was a sexual sadist based on expert testimony and that the sentence violated the totality principle.

The Court of Appeal dismissed the appeal, holding that the 10-year sentence was fit and appropriate given the brutal, protracted, and horrendous nature of the offences, regardless of the sexual sadism finding.

The appellant appealed his convictions for sexual assault and unlawful confinement.

He argued that the trial judge erred in refusing to order disclosure of the complainant's psychiatric records, allowing the Crown to call the treating psychiatrist in reply, and assessing the complainant's credibility.

The appellant also argued the verdicts were inconsistent because he was acquitted of sexual assault with a weapon.

The Court of Appeal dismissed the appeal, finding no error in the trial judge's assessment of the false memory defence or the complainant's evidence.

The Court also rejected the appellant's application to introduce fresh evidence, concluding it would not assist in preventing a miscarriage of justice.

The Ontario Human Rights Commission appealed a Board of Inquiry decision dismissing complaints against Ford Motor Company and a union alleging constructive discrimination based on religion.

The complainants, adherents of the Worldwide Church of God, sought to be excused from Friday night shifts to observe the Sabbath.

The Board found that accommodating the complainants would cause undue hardship to Ford due to high absenteeism, quality, and safety concerns, and to the union due to significant interference with the seniority rights of other workers.

The Divisional Court dismissed the appeal, finding the Board's decision reasonable and supported by the evidence.

The appellant was convicted of robbery and kidnapping and sentenced to 5 years' imprisonment.

At trial, the defence argued the complainant was a willing participant in an insurance fraud scheme, relying on the appellant's statement to police.

On appeal, the appellant argued the trial judge erred in his jury instructions regarding reasonable doubt, motive, and the failure to give a Vetrovec warning.

The Court of Appeal dismissed the conviction appeal, finding no errors in the jury charge.

The sentence appeal was also dismissed, as the 5-year sentence was not manifestly unreasonable despite the appellant being a first offender.

The appellant appealed his second-degree murder conviction and applied to introduce fresh evidence, including new DNA test results and factual evidence regarding scabs on his hands.

The Court of Appeal applied the Palmer test and found that the fresh DNA evidence, which excluded the appellant and pointed to an alternative suspect, could reasonably be expected to have affected the result at trial.

The fresh factual evidence regarding the source of the appellant's hand injuries was also admitted.

The conviction was set aside and a new trial ordered.

The appellant was convicted of armed robbery and related offences following a jewellery store heist.

On appeal, he challenged the trial judge's jury instructions on eyewitness identification, the Crown's use of his pre-trial silence to prove joint possession of stolen watches, and the admission of hearsay evidence.

The Court of Appeal allowed the appeal, finding that the jury instructions on the frailties of photographic and video identification were inadequate.

Furthermore, the Crown improperly used the appellant's refusal to provide an explanation or sign a waiver form as evidence of guilt, violating his right to silence.

A new trial was ordered.

The appellant appealed a second degree murder conviction arising from a jury trial following a shooting death.

She argued that the jury charge was deficient on intent because it did not refer to her use of prescribed anti-depressants, that the reasonable doubt instruction was inadequate, and that Crown counsel’s cross-examination created trial unfairness.

The court held that the charge on intent was adequate, the pre-Lifchus reasonable doubt instruction did not create a reasonable likelihood of jury misunderstanding when the charge was read as a whole, and the complained-of Crown conduct did not deprive the appellant of a fair trial.

The appeal was dismissed.

The appellant appealed both conviction and sentence following a jury trial for homicide.

He argued that the trial judge improperly highlighted a statement suggesting concealment of relevant evidence and failed to caution the jury against considering that statement in isolation, and further erred by not providing the jury with a written copy of the recharge.

The court held that the impugned statement was only a small part of a larger circumstantial case, that the charge properly instructed the jury to assess all of the evidence, and that the recharge procedure caused no unfairness because the corrections were minor and clearly explained.

The conviction appeal and sentence appeal were both dismissed.

The appellant appealed a sexual assault conviction and sought leave to appeal sentence.

The court held that the trial judge properly dismissed the application to adduce evidence of other sexual conduct under s. 276 of the Criminal Code, particularly where the application was not renewed after the complainant's subsequent testimony and the proposed evidence was irrelevant to the issues raised.

The court also found the jury charge fair and balanced.

Leave to appeal sentence was granted, but the sentence appeal was dismissed because there was no error in principle in refusing a conditional sentence for serious offences involving grave breach of trust and a vulnerable victim.