David N. Tice

The Court of Appeal for Ontario considered the appeals of Rushawn Anderson and Nicholas Rhoden from convictions for attempted murder and aggravated assault.

The appellants argued that the trial judge erred in admitting out-of-court statements, in his rulings on Charter violations, in instructing the jury on fabrication, and that the verdicts were unreasonable.

The majority dismissed the appeals, finding the fabrication instruction sufficient and the verdicts reasonable.

In dissent, Gomery J.A. would have allowed the appeals, finding the fabrication instruction flawed and the verdicts unreasonable, and would have substituted acquittals.

The appellant sought to strike his guilty plea to possession of a loaded restricted firearm, alleging material non-disclosure.

The Crown had requested an adjournment of a Charter motion, citing a police officer's medical unavailability.

Fresh evidence revealed the officer was facing criminal charges, which were not disclosed to the defence.

The appellant asserted he would not have pleaded guilty if aware of these charges.

The Crown conceded the fresh evidence's admissibility, the material non-disclosure, and that it likely influenced the plea.

The Court of Appeal accepted these concessions, allowed the appeal, set aside the guilty plea, and ordered a new trial.

The appellant, a young person, appealed convictions for sexually assaulting two complainants.

The appeal raised two grounds: an alleged error in dismissing a severance application and the trial judge's assessment of evidence.

The Court of Appeal dismissed the appeal, finding no injustice in the severance ruling and no palpable and overriding error in the evidence assessment.

The appellant, P.K., appealed his convictions for sexual assault and sexual interference involving his 15-year-old niece.

The appeal raised two grounds: the trial judge's response to a jury question concerning forensic evidence and the instruction given on the complainant's videotaped statement under s. 715.1 of the Criminal Code.

The Court of Appeal found that the trial judge's response to the jury's request for a read-back of expert testimony was appropriate, given the practical difficulties and the lack of material prejudice.

The court also affirmed that the instruction on the s. 715.1 statement was correct, as such statements are admissible for their truth and as part of the in-court testimony.

The appeal was dismissed.

Egypt Morgan was sentenced for manslaughter after being jointly charged with first-degree murder.

The jury found her guilty of manslaughter, while her co-accused, Shamoi Palmer, was found guilty of first-degree murder.

The victim, Jermaine Titus, was an innocent bystander killed by a bullet intended for another individual.

Morgan's role involved alerting Palmer to the victim's location, knowing Palmer possessed a firearm and intended to discharge it recklessly.

The court considered aggravating factors, including the use of a firearm, the planned nature of Morgan's actions, the innocent victim, and her post-offence assistance to Palmer.

Mitigating factors included her status as a youthful first offender, family support, participation in rehabilitation programs, and harsh pre-sentence custody conditions, including during the COVID-19 pandemic.

The Crown sought a 12-year sentence, while the defence sought time served.

The court imposed a 10-year sentence, with credit for pre-sentence custody, leaving 3 years, 9 months, and 21 days to serve.

The appellant, K.C., appealed his conviction for sexual assault, having abandoned his sentence appeal.

The incident involved conflicting accounts of a sexual encounter.

The trial judge rejected the appellant's testimony, finding it contradicted by text messages, and accepted the complainant's evidence as logical, consistent, and supported by other evidence.

The Court of Appeal found no legal error or material misapprehension of evidence by the trial judge, affirming the high degree of deference owed to credibility findings on appeal.

The appeal was dismissed.

The appellant, found not criminally responsible (NCR) for past offences, appealed a disposition by the Ontario Review Board (ORB) that ordered her detention in custody and rehabilitation at the Centre for Addiction and Mental Health (CAMH).

Previously, she had been on a conditional discharge but exhibited declining mental stability and inconsistent attendance at appointments.

Despite recommendations from her physician, hospital counsel, and the Crown for a continued conditional discharge, the ORB found she posed a significant public safety threat due to marked deterioration in her stability and past threatening behaviour.

The Court of Appeal dismissed the appeal, upholding the ORB's decision as reasonable, emphasizing the ORB's expertise and the need to consider future treatment beyond mere reattendance mechanisms.

C.H. appealed convictions for mischief under $5000, uttering threats, common assault, and sexual assault committed against his former fiancée.

The appeal raised several grounds, including the trial judge's treatment of character evidence, application of the rule in R. v. W.(D.), evaluation of motive and delay in reporting, treatment of exculpatory evidence for sexual assault, and misuse of a prior consistent statement.

The Court of Appeal dismissed the appeal, finding no reversible error in most grounds.

While acknowledging an error in the trial judge's hypothetical comment on exculpatory evidence for sexual assault and the misuse of a prior consistent statement, the court concluded these errors did not contribute to the convictions or warrant setting them aside.

The defendant sought to exclude evidence (a sawed-off shotgun and ammunition) seized under a search warrant, arguing the warrant was invalid due to a breach of his s. 7 Charter rights (loss of surveillance video) and insufficient grounds.

The court found a s. 7 Charter breach due to unacceptable police negligence in losing the video, remedying it by excising a subjective observation from the Information To Obtain (ITO).

However, the court determined that even with the excision, there were sufficient credible and corroborated grounds from a confidential informant and police surveillance for the justice of the peace to issue the warrant for the defendant's associated residence.

The application to exclude the evidence was dismissed.

The applicant, Lenneil Shaw, sought to redact entries from a phone download report, arguing they constituted inadmissible hearsay and lacked sufficient authentication to link certain phone calls to him.

The report associated a phone number with the contact name "Dozey," a nickname for Lenneil Shaw, and showed calls to a Crown witness's phone near the time of a homicide.

The court dismissed the application, finding that the report contained no implied assertion of who made the calls, but rather presented circumstantial facts relevant to linking the accused to the witness.

The court held that the evidence was admissible for the fact that calls were made, not their substance, and that it met the threshold for relevance, even if it admitted competing inferences.

The applicants, charged with first-degree murder, brought an application seeking a remedy for lost telecommunications records from Freedom Mobile Inc. The police failed to preserve these potentially exculpatory records due to unacceptable negligence, specifically an erroneous belief about Freedom Mobile's affiliation with Rogers and its data retention policy.

The court found a breach of the applicants' s. 7 Charter rights but determined that a stay of proceedings was not appropriate.

Instead, the court ordered a strong jury instruction (Bero instruction) as a sufficient remedy, acknowledging the high relevance of the lost evidence but its indeterminate utility.

The applicants, charged with first-degree murder, brought a motion for a mistrial during their jury trial.

The application was based on two incidents: an altercation in the courthouse foyer where the deceased's mother verbally accosted the accused's mother in the jury's presence, and a prior CTV interview given by the deceased's mother.

The court dismissed the application, finding that neither incident created a "real danger of prejudice or a risk of a miscarriage of justice." The judge determined that the jury was intelligent and capable of impartiality, and that a strong judicial instruction would suffice to mitigate any potential impact.

Practical considerations regarding the difficulty and delay of selecting a new jury also factored into the decision.

The applicant, Shakiyl Shaw, on trial for first-degree murder, sought a directed verdict of acquittal on the murder charge at the close of the Crown's case, requesting the jury only deliberate on manslaughter.

The court dismissed the application, finding that there was sufficient circumstantial evidence upon which a reasonable jury, properly instructed, could infer that the applicant knew his co-accused were armed and intended to shoot someone, and that the murder was planned and deliberate, thereby making him liable as a secondary party to murder.