Diana M. Lumba

Criminal appeal from convictions for fentanyl trafficking, possession of property obtained by crime, and firearms offences arising from a street arrest after police surveillance.

The appellant argued that police breached the duty to hold off questioning at arrest and during a later station interview, and that the resulting evidence should have been excluded under ss. 10(b) and 24(2) of the Charter.

The Court of Appeal held that the arrest-scene questioning issue was not a live issue at trial, no additional s. 10(b) breach occurred before the interview, and the trial judge’s Grant analysis attracted deference.

The appeal was dismissed.

The appellant was convicted of possession of fentanyl for the purpose of trafficking after police found drugs in the trunk of a vehicle he had rented and was driving.

On appeal, he argued the verdict was unreasonable because the evidence was circumstantial and did not conclusively tie him to the drugs, and that the trial judge erred in instructing the jury on the absence of evidence.

The Court of Appeal dismissed the appeal, finding that the appellant's control over the rental vehicle and the location of the drugs supported a reasonable inference of constructive possession.

The Court also held that the jury charge, read as a whole, adequately instructed the jury on reasonable doubt and circumstantial evidence.

The offender pleaded guilty to facilitating terrorist activity, instructing terrorist activity, and promoting hatred.

Over a decade, he was a leader in a neo-Nazi militant accelerationist group, creating propaganda videos and manifestos that incited violence against identifiable groups and inspired several real-world attacks.

The court emphasized denunciation and deterrence, noting the gravity of terrorism offences designed to result in indiscriminate killing.

The offender was sentenced to 20 years' imprisonment, less 48 months of pre-sentence credit.

The court declined to order delayed parole eligibility, finding the offender's prospects for rehabilitation in the penitentiary system warranted standard parole rules.

The Crown sought to introduce expert opinion evidence from an RCMP analyst comparing camouflage clothing seized from the accused's residence with clothing worn by a masked individual in a terrorist propaganda video.

The accused challenged the admissibility of the comparison evidence.

The court excluded the comparison evidence, finding it was not necessary as the trier of fact could make the comparison without expert assistance.

The court also found the proposed expert was not duly qualified to opine on camouflage patterns due to limited and dated training, and noted concerns regarding confirmation bias and reliability.

The Crown appealed stays of proceedings granted to two respondents charged in a massive cross-border drug trafficking investigation.

The application judge had found the delay exceeded the Jordan ceiling and declined to deduct time for joint-trial scheduling or find the case exceptionally complex.

The Court of Appeal allowed the appeal, holding that the 107 days of joint-trial scheduling delay should have been deducted as a discrete exceptional circumstance.

Furthermore, the overarching complexity of the multi-agency project prosecution, which involved voluminous disclosure, justified the remaining modest delay above the ceiling.

The stays were set aside and the matters remitted for trial.

Duy Tam Nguyen was convicted of multiple drug trafficking and firearm possession offences after police found significant amounts of cocaine, methamphetamine, and two firearms in a "stash house" he operated.

The court considered aggravating factors, including a prior criminal record and the sophistication of the operation, and mitigating factors such as rehabilitative prospects and pre-sentence custody conditions.

The judge applied the principle of totality to determine appropriate concurrent and consecutive sentences for the various counts, ultimately imposing a total sentence of seven years and eight months imprisonment, along with ancillary orders for DNA sample and a lifetime firearm prohibition.

Ashley Gallie, a pharmacy technician, was sentenced for multiple criminal and drug charges, including theft over $5,000 and possession of oxycodone for the purpose of trafficking, arising from stealing large quantities of oxycodone from two pharmacies where she was employed.

The court found her guilty of possession for the purpose of trafficking for the first pharmacy (Nova) but not for the second (IDA), accepting her addiction but rejecting her claim of sole personal use for all stolen drugs.

The sentencing considered aggravating factors such as breach of trust and the large quantity of drugs, and mitigating factors including her lack of prior record, addiction, and family circumstances.

A penitentiary sentence of four years and six months was imposed for possession for the purpose of trafficking, with concurrent sentences for other charges.

The Crown appealed the respondent's acquittal on serious drug trafficking charges, which resulted from the trial judge's exclusion of evidence seized under search warrants.

The trial judge had found the warrants improperly authorized due to insufficient compelling and corroborated confidential source information, leading to a Charter s. 8 violation and s. 24(2) exclusion.

The Court of Appeal found that the trial judge erred in misapprehending the evidence regarding the compelling nature of the confidential information and misapplying the corroboration requirement.

The Court also found an error in assessing the nexus between the alleged offences and the searched locations.

The appeal was allowed, acquittals set aside, and a new trial ordered, as the searches were deemed legally authorized.

The Crown brought an application to remove the defendant's counsel of record due to a conflict of interest.

The defendant and a co-accused were jointly charged with terrorism-related offences.

The counsel of record had previously represented or consulted with the co-accused, the defendant's family members, and potential witnesses in related matters.

The court found a realistic and significant risk of a future conflict of interest that could impair the counsel's duty of loyalty and effective assistance.

The application was granted, and the counsel was removed from the record.

Sentencing of two offenders convicted of multiple drug trafficking and firearms offences.

Jason Wisdom, a mature recidivist, was convicted of possessing large quantities of fentanyl, cocaine, and methamphetamine, as well as a loaded restricted firearm and breaching prohibition orders.

He was sentenced to a total of 17 years imprisonment.

Dae-Shawn Wisdom, a younger recidivist, was convicted of possessing fentanyl, cocaine, and methamphetamine for the purpose of trafficking, and was sentenced to 7 years and 4 months consecutive to a sentence he was already serving.

The court applied the totality principle and Lord Coke's principle regarding subsequent convictions.

The accused, Duy Tam Nguyen, was charged with multiple drug and firearm offences following his arrest with a co-accused.

Police found methamphetamine, cash, and keys to a rooming house unit on Nguyen.

A subsequent search of the unit revealed more methamphetamine, cocaine, firearms, drug trafficking paraphernalia, and Nguyen's identification documents.

The primary issues at trial were whether circumstantial evidence proved Nguyen's possession of the drugs and firearms and if the cash was proceeds of crime.

A secondary issue was the admissibility and weight of the co-accused's exculpatory statements.

The court found Nguyen guilty of possession of methamphetamine for trafficking (on person and in unit), possession of non-restricted and restricted firearms, and possession of cocaine for trafficking.

He was found not guilty of possession of proceeds of crime due to insufficient evidence.

The applicant was arrested for drug trafficking, and a subsequent search of his residence yielded a firearm.

He brought a Charter application to exclude evidence, alleging breaches of his s. 10(a) and 10(b) rights due to a delay in facilitating contact with counsel and a failure to inform him of the firearms charges.

The court found that the police breached both s. 10(a) and s. 10(b) of the Charter.

However, applying the Grant framework under s. 24(2), the court concluded that the evidence should not be excluded, as the breaches had a minimal impact on the applicant's Charter-protected interests and society's interest in adjudicating the serious charges on their merits strongly favoured inclusion.

The appellant, convicted of attempting to import cocaine and possession of proceeds of crime, appealed the dismissal of his entrapment claim.

The Court of Appeal found that the trial judge erred in assessing the credibility and reliability of the police agent (PA), whose uncorroborated testimony was central to establishing reasonable suspicion for police intervention.

The court highlighted the PA's extensive criminal history, admitted lies, and substantial financial compensation ($400,000 plus monthly fees) as factors requiring a more rigorous credibility analysis.

It also found that the appellant's later eagerness to participate in the scheme did not corroborate the PA's claim that the appellant initiated the criminal activity.

The appeal was allowed, convictions quashed, and a new trial ordered solely on the entrapment issue.

The offender pleaded guilty to possession of fentanyl, heroin, and cocaine for the purpose of trafficking, and possession of proceeds of crime.

The Crown sought a 7-year global sentence, while the defence sought 4 years.

The court emphasized denunciation and deterrence given the large quantities of highly addictive drugs and the offender's prior related record while on parole.

A global sentence of 6 years was imposed, reduced to 4 years and 4 months after applying credits for pre-sentence custody, harsh lockdown conditions, and restrictive bail conditions.

This judge-alone trial addressed whether the defendant possessed fentanyl for trafficking purposes.

The defendant admitted to trafficking cocaine and possessing proceeds of crime but denied knowing the 100 pills contained fentanyl, asserting he believed them to be Percocet for personal use due to an addiction.

The court found reasonable doubt regarding the defendant's knowledge of the pills' fentanyl content and his intent to traffic them, based on expert testimony and the defendant's narrative of personal use.

Consequently, the defendant was acquitted of fentanyl trafficking but convicted of simple possession of fentanyl, possession of cocaine for the purpose of trafficking, and possession of proceeds of crime.

The appellant, Asher Veliz, appealed his convictions for drug trafficking and a related firearm offence, and his global net sentence of 4.5 years.

He argued breaches of his Charter rights under ss. 8, 9, and 10(b) concerning arbitrary arrest, an invalid search warrant, and denial of his right to counsel of choice.

He also appealed the sentence, alleging the trial judge imposed a higher custodial sentence for the drug offence than sought by the Crown without allowing submissions.

The Court of Appeal dismissed all grounds of appeal, finding no errors by the trial judge regarding reasonable and probable grounds for arrest, the validity of the search warrant, or the right to counsel.

The court also found no error in the sentence, noting the global sentence imposed was lower than what the Crown had sought.

Police responding to a domestic violence call arrested the accused in the basement of his home and, incident to that arrest, conducted a visual clearing search of an adjoining basement living room, discovering methamphetamine in plain view.

The majority held that the common law standard for search incident to arrest must be modified where the area searched is outside the arrested person's physical control at the time of arrest: the police must have reasonable suspicion of a safety risk, and the search must be conducted in a manner tailored to the heightened privacy interests in a home.

Applying that standard, the majority found no breach of s. 8 of the Charter and dismissed the appeal.

The dissent (Karakatsanis, Brown and Martin JJ.) would have required reasonable suspicion of an imminent threat and found the standard unmet, favouring exclusion of the evidence under s. 24(2).

Côté J. agreed with the dissent on the standard and the s. 8 breach but would not exclude the evidence under s. 24(2).

The applicants were stopped for a traffic violation and subsequently investigated for a stolen vehicle.

The police arrested the driver for driving under suspension, detained the passenger, and searched the vehicle based on the smell of burnt marijuana and the presence of two roaches, locating a loaded handgun and drugs.

The court found multiple Charter breaches, including arbitrary detention, unreasonable search, and delay in providing rights to counsel, as the officers lacked reasonable grounds for the stolen vehicle investigation and the vehicle search.

The evidence was excluded under s. 24(2) of the Charter.

The applicant, Dexter Griffith, sought an order under s. 684 of the Criminal Code for the appointment of counsel to assist with his conviction appeal, having been denied legal aid due to perceived lack of merit.

The Crown opposed the application.

The court granted the application, finding that the appeal presented arguable grounds, specifically regarding the validity of a search warrant based on the Information to Obtain (ITO) and the permissible amplification of the ITO.

The court also determined that counsel was necessary given the complexity of the legal issues and the applicant's cognitive limitations following a traumatic brain injury.

The appellants, David Brown and Daimian Johnson, appealed their sentences for drug trafficking offences, arguing that the sentencing judge failed to give sufficient credit for various mitigating factors, including multiple arrests, restrictive bail conditions, and cooperation with authorities.

The Court of Appeal dismissed both appeals, finding that the sentencing judge had properly identified and considered the mitigating factors and that the sentences imposed were reasonable and reflected the circumstances.