Delmar Michael Doucette

The Court addressed the test for fitness to stand trial under s. 2 of the Criminal Code and held that fitness requires capacity to make and communicate reality-based defence decisions, not capacity to make decisions in one’s best interests.

Applying that standard, the majority found no basis to disturb findings that the accused was fit despite fluctuating psychotic symptoms, because the record showed sustained reality-based participation and intelligible communication.

The majority also dismissed fresh and new evidence motions concerning post-trial psychiatric evidence and later judicial findings about the Crown expert’s practices, concluding the proposed evidence could not reasonably have affected the verdict.

A dissent would have admitted the fresh evidence, found a miscarriage of justice, quashed the conviction, and ordered a new trial.

The appellants, Andrew Smoke and Eric Smoke, appealed their convictions for the second degree murder of Andrew “Scruff” Davis.

The Court of Appeal for Ontario dismissed both appeals, finding no error in the trial judge’s instructions to the jury regarding aiding and abetting, after-the-fact conduct, and the use of statements attributed to Andrew.

The court also found the verdict against Eric was not unreasonable, given the circumstantial evidence, including DNA and video evidence.

The appellant, Kevin Hyde, appealed convictions for dangerous driving causing death and impaired driving causing death, and sought leave to appeal his sentence of 6.5 years.

The Court of Appeal for Ontario dismissed the conviction appeal, finding no legal error or material misapprehension of evidence by the trial judge, who had reasonably rejected the appellant's medical condition defence.

The court also dismissed a motion to file fresh accident reconstruction evidence due to a lack of due diligence.

While leave to appeal the sentence was granted, the sentence appeal was dismissed as the appellant failed to demonstrate that the sentence was manifestly unfit or based on errors in principle.

The appellant, Steven Browne, sought leave to appeal a 14-year sentence imposed following guilty pleas to attempted murder with a firearm and discharging a firearm with intent to wound.

He argued the sentencing judge erred by exceeding the Crown's suggested range and by failing to give adequate credit for collateral consequences (Suter factors), disadvantaged background (Morris factors), and harsh pre-sentence custody conditions (Duncan factors).

The Court of Appeal dismissed the appeal, finding no error in principle or unfitness in the sentence, and that the sentencing judge properly considered the relevant factors without disproportionately reducing the sentence.

The appellant, Jason Lusted, appealed an 18-year sentence for manslaughter, arguing the sentencing judge erred by failing to treat his expression of remorse and his guilty plea as mitigating factors.

The Court of Appeal for Ontario dismissed the appeal.

The court found that the sentencing judge properly exercised discretion in weighing remorse against the appellant's extensive criminal history and that the guilty plea, though not explicitly mentioned, was clearly considered within the context of the sentencing hearing.

The court emphasized the gravity of the offence and the appellant's long criminal record, affirming the fitness of the sentence.

The appellant, convicted of second-degree murder, appealed on the ground that the trial judge failed to instruct the jury on the defence of accident (unintended act).

The Court of Appeal dismissed the appeal, finding that the defence of accident did not have an air of reality based on the totality of the evidence, including witness testimony, video surveillance, and coroner's evidence, which contradicted the appellant's equivocal testimony.

The appellant, convicted of second-degree murder, appealed on the ground that the trial judge erred by not providing a specific corrective instruction to the jury regarding a co-accused's counsel's speculative theory of the case.

The co-accused's counsel had suggested, without evidentiary basis, that the appellant was involved in an illegal marijuana operation and owed money, contradicting the appellant's defence that he was extorted by the deceased.

The Court of Appeal found that while the co-accused's counsel's comments were improper and lacked evidentiary foundation, the trial judge's general cautionary instructions to the jury about avoiding speculation and relying only on evidence were sufficient.

The court emphasized the high degree of deference owed to a trial judge's assessment of the impact of improper remarks and the chosen remedial steps.

The appeal was dismissed, as the court concluded that the comments did not cause a substantial wrong or miscarriage of justice.

The appellant, Trae Worrie, appealed his convictions for second-degree murder and attempted murder, arguing he was Not Criminally Responsible (NCR) due to mental disorder.

Two forensic psychiatrists unanimously opined he was NCR, but the trial judge rejected this defense, finding him guilty.

The Court of Appeal found that the trial judge materially misapprehended expert evidence, particularly concerning a psychologist's testimony, and misused the appellant's after-the-fact conduct.

The court concluded there was no rational basis to reject the unanimous expert opinion that the appellant was NCR.

The appeal was allowed, convictions set aside, and a verdict of NCR was substituted.

This is an appeal from convictions for threatening, assault, and sexual assault.

The appellant challenged the trial judge's credibility findings regarding peripheral Crown witnesses and alleged misapprehension of his own evidence concerning the sexual assault incident.

The Court of Appeal found that the trial judge applied the correct legal principles, including those from R. v. W.(D.) and R. v. C.L.Y., and reasonably assessed witness credibility.

The court dismissed the appeal, affirming the trial judge's findings that the appellant's evidence was improbable and lacked credibility.

The appellant appealed convictions for various drug-related offences, challenging the trial judge's findings on reasonable and probable grounds for arrest and the legality of a search incident to arrest under section 8 of the Charter.

The Court of Appeal found no error in the trial judge's conclusion that police had reasonable and probable grounds for arrest, based on confidential informant information and the discovery of drugs in the appellant's car.

The court also upheld the search of a locked container within the vehicle as a lawful search incident to arrest, despite the appellant's assertion of privacy.

The appeal was dismissed.

The applicant, K.K., sought bail pending appeal after being convicted of sexual assault, uttering threats, and assault against his domestic partner.

The application was dismissed.

The court applied the three-part test for bail pending appeal under s. 679(3) of the Criminal Code, focusing on the public interest ground.

It found that the enforceability interest outweighed the reviewability interest due to the seriousness of the domestic violence crimes, the applicant's history of violence and non-compliance with court orders, a high risk of re-offending in domestic violence, and the appeal grounds not significantly surpassing the "not frivolous" standard.

Concerns were also raised about the proposed surety, who was a recent victim of the applicant's violence.

The appellant, Salvatore Lamacchia, appealed an eight-year global sentence for two counts of possession of cocaine for the purpose of trafficking and breach of recognizance.

He argued the sentencing judge failed to consider the totality principle and did not give sufficient weight to his community work.

The Court of Appeal dismissed the appeal, finding the sentencing judge was alert to the totality principle and properly balanced aggravating and mitigating factors, including the appellant's community work.

The court reiterated the high standard for appellate intervention in sentencing.

The appellant, Tesean Alvarez, appealed his convictions for aggravated assault and possession of a weapon dangerous to the public peace, arguing the trial judge erred in jury instructions regarding eyewitness identification reliability, Vetrovec warnings, exculpatory evidence, and cross-racial identification, and that the verdict was unreasonable.

The Court of Appeal found that the trial judge's instructions on eyewitness identification were inadequate, particularly concerning flaws in the police identification process and the distinction between inculpatory and exculpatory evidence.

While other grounds of appeal were dismissed, the court concluded that the jury was not properly equipped to assess the identification evidence, which was central to the Crown's case.

The appeal was allowed, convictions set aside, and a new trial ordered.

The appellant, Steven Vanroy Browne, appealed his conviction for manslaughter, arguing the verdict was unreasonable and that evidence of phone numbers provided to his probation officer was inadmissible.

The Court of Appeal found the verdict reasonable, supported by DNA evidence, mobile phone records, and association evidence, despite inconsistencies in eyewitness identification.

The court also upheld the admission of phone number evidence, ruling it was not compelled and did not violate Charter rights, as the appellant failed to establish a subjective or objective belief of compulsion.

The appeal was dismissed.

The appellant, Gary Hoffman, appealed his manslaughter conviction, raising three grounds: the trial judge's failure to give a W.(D.) direction regarding exculpatory evidence from a key witness (Peter Ojha), a misdirection on double hearsay contained in Ojha's K.G.B. statement, and a constitutional challenge to the Ontario Juries Act.

The Court of Appeal dismissed the constitutional challenge but found errors in the jury instructions regarding the W.(D.) direction and double hearsay.

The court held that a W.(D.) direction is required for exculpatory evidence from any witness, even if that witness also provides inculpatory evidence or if the exculpatory evidence relates to only one theory of culpability.

It also clarified that if a jury finds a K.G.B. statement to be based on double hearsay, they must disregard it entirely, rather than merely considering it for reliability.

Consequently, the manslaughter conviction was set aside, and a new trial was ordered.

The appellant, Odain Gardner, appealed his conviction for first-degree murder.

He was tried jointly with Erick Reid, who was convicted of manslaughter.

Gardner argued the trial judge erred by failing to properly relate material evidence to the issues for the jury and by giving an erroneous after-the-fact conduct instruction.

The Court of Appeal dismissed the appeal, finding that while the trial judge's instructions were not perfect, they were adequate in conveying the central issues of identity and credibility to the jury.

The court also found no reversible error in the after-the-fact conduct instruction, noting it was not circular or prejudicial.

The appellant, Joshua Barreira, appealed his 15-year sentence for manslaughter, which had been reduced to a net 4.5 years after pre-sentence custody credit.

He raised four grounds of appeal: the sentence falling outside the appropriate range, the sentencing judge's failure to assume he did not know his accomplice had a gun, insufficient "Duncan credit" for harsh pre-sentence custody conditions, and an omission of pre-sentence credit for time served between sentencing submissions and the imposition of sentence.

The Court of Appeal granted leave to appeal and allowed the appeal in part, accepting the fourth ground as conceded by the Crown.

The court rejected the other grounds, affirming that the sentence was not demonstrably unfit, that mitigating facts must be established on a balance of probabilities, and that the "Duncan credit" was within the sentencing judge's discretion.

The sentence was adjusted to reflect the additional pre-sentence credit.

The appellant, Jeremy Reddick, appealed his convictions for second degree murder and assault with a weapon, alleging errors in the trial judge's jury instructions concerning after-the-fact conduct, intoxication, and the permitted use of his spontaneous utterance "They jumped me." The Court of Appeal found that while some instructions could have been more thorough, they did not amount to reversible error or cause a substantial wrong or miscarriage of justice, particularly given the lack of objection at trial and the overall context of the case.

The appeal was dismissed.

The appellant, Todd Howley, appealed his conviction for first-degree murder, challenging the trial judge's admission of internet search evidence ("nail gun" searches) and the appropriateness of the Crown's closing submissions.

The Court of Appeal dismissed the appeal, upholding the conviction.

The court found the internet search evidence relevant to planning and deliberation, and that the trial judge's timely curative instructions adequately addressed any impropriety in the Crown's closing, thus not warranting a mistrial or a stay of proceedings for abuse of process.

The appellant, convicted of second-degree murder, appealed his conviction and sentence.

The appeal challenged the admissibility of his in-court statements, the trial judge's refusal to leave self-defence and provocation with the jury, and the 17-year parole ineligibility period.

The Court of Appeal dismissed the appeal against conviction, finding the statements were not protected, not analogous to an aborted guilty plea, and the appellant had an operating mind.

It also upheld the trial judge's finding that there was no air of reality to self-defence or provocation.

Leave to appeal sentence was granted, but the sentence appeal was dismissed, as the parole ineligibility period was deemed fit given the brutality of the murder.