Diana M. Lumba

The appellant, a repeat firearms offender, appealed his global sentence of eight years' imprisonment for eight firearm-related offences, including possession of a restricted firearm and breaches of two firearms prohibition orders.

He argued the sentencing judge erred in imposing consecutive sentences for the prohibition breaches, that the global sentence offended the parity principle, and that the mandatory minimum sentence was unconstitutional.

The Court of Appeal dismissed the appeal, finding no error in the consecutive sentences and concluding the global sentence was fit and did not offend the parity principle.

The Court declined to address the constitutional challenge as the sentence was justified regardless of the mandatory minimum.

The appellants were convicted of importing firearms and alcohol from the United States into Canada.

One appellant's conviction appeal was dismissed as the trial judge properly assessed the unsavoury co-accused witness's testimony and found sufficient corroboration.

The other two appellants' conviction appeals were allowed and new trials ordered because the trial judge's reasons failed to address whether they had the requisite mens rea (knowledge or wilful blindness) for the firearms offences, as opposed to just the alcohol offences.

One appellant's sentence for the alcohol offences was varied to time served.

The applicant, convicted of second-degree murder following a fatal altercation at a bar, applied for judicial interim release pending his appeal.

The central issue on appeal was causation, with the applicant seeking to introduce fresh expert evidence suggesting the deceased died from alcohol concussion syndrome triggered by a co-accused's subsequent punch, rather than the applicant's initial assault.

The Court of Appeal found that the proposed fresh evidence raised an arguable ground of appeal, satisfying the requirement that the appeal not be frivolous.

Concluding that the applicant's detention was not necessary in the public interest, the court granted release pending appeal on strict conditions.

The appellant appealed convictions for impaired operation and operating a motor vehicle with a blood alcohol level over 80 mg.

The central issue at trial was the identity of the driver involved in a motor vehicle collision.

During the trial, before hearing closing submissions, the trial judge stated that the defence witness was lying and that the accused was guilty.

The appeal court held that expressing fixed conclusions about credibility and guilt before hearing counsel's closing arguments constituted an error of law and deprived the appellant of the right to be fully heard.

A new trial was ordered before a different judge.

The appellant pleaded guilty to offences committed before the Truth in Sentencing Act came into force, but was charged after it came into force.

The trial judge applied the Act, limiting pre-sentence custody credit to 1.5 days for each day served.

The appellant appealed, arguing the Act should not apply retrospectively to offences committed before its enactment.

The Court of Appeal dismissed the appeal, holding that section 5 of the Act clearly displaces the presumption against retrospectivity by explicitly applying to persons charged after the Act came into force.

The respondent was found passed out in the back seat of a parked van with the keys in the ignition.

He was convicted at trial of having care or control of a motor vehicle while impaired.

The summary conviction appeal judge overturned the conviction, finding the trial judge's conclusion that the respondent might wake up and drive was based on speculation.

The Crown appealed.

The Court of Appeal allowed the appeal, holding that the trial judge's finding of a risk of danger was supported by ample circumstantial evidence and the summary conviction appeal judge erred by substituting his own view of the evidence.

The appellant appealed her convictions for break and enter and being unlawfully in a dwelling.

The police investigated a burglary where the suspect tracked dog feces into the apartment.

An officer attended the appellant's home, entered her enclosed verandah without a warrant, and observed and smelled dog feces on her shoes.

The Court of Appeal found that the officer's actions constituted an unreasonable search in violation of s. 8 of the Charter.

However, applying the Grant framework, the Court upheld the trial judge's decision to admit the evidence under s. 24(2), concluding that the breach was minimal and admitting the evidence would not bring the administration of justice into disrepute.

The appeal was dismissed.

The appellant appealed his conviction for fourteen sexual offences involving eight complainants at group homes where he worked.

The Crown's case relied heavily on a confession the appellant gave to police while he was a voluntary psychiatric patient suffering from depression.

The appellant argued his s. 10(b) Charter right to counsel was violated because the police did not obtain a clear waiver after he gave an equivocal response about wanting a lawyer.

The Court of Appeal dismissed the appeal, finding the appellant understood his rights and had a reasonable opportunity to exercise them, and the police were not required to do more in the circumstances.

Multiple appellants challenged jury convictions for two first degree murders and attempted murder arising from a retaliatory gang-related shooting.

The court rejected allegations of unfair trial management, unfair jury instructions, improper admission of prior K.G.B. statements and preliminary inquiry evidence, erroneous refusal of severance, improper admission of intercepted artistic expression, and misdirection on cell phone location evidence.

Applying a threshold reliability analysis informed by Khelawon, the court upheld admission of a key unavailable witness's prior statements.

The court also dismissed a fresh evidence application concerning synchronization of 911 and carrier clocks, holding the proposed evidence would not reasonably have affected the verdict given the broader evidentiary record.

The appellants, two brothers, appealed their convictions for second degree murder following the stabbing death of the victim during an altercation in an apartment.

The appellants argued the trial judge erred in his instructions to the jury regarding self-defence, provocation, intent, causation, and in responding to jury questions.

The Court of Appeal dismissed the appeals, finding no errors in the trial judge's instructions or responses to the jury, and concluding there was no air of reality to the defences of provocation or self-defence.

The appellant, a social worker, appealed his convictions for two counts of sexual assault involving two former patients.

He argued that the trial judge erred in finding that consent was vitiated by an abuse of trust, that the trial judge's interventions compromised trial fairness, and that improper use was made of a prior consistent statement.

The Court of Appeal dismissed the appeal, finding that the trial judge's conclusions were amply supported by the evidence and that the trial was fair.

The appellant appealed a dangerous offender finding.

The Court of Appeal upheld the sentencing judge's conclusion that the appellant presented a very high risk of re-offending in domestic relationships, had speculative prospects for treatment, and lacked motivation to obtain treatment.

The Court found no error in the sentencing judge's assessment of the risk or the requirement for positive evidence of the utility of treatment.

The appeal was dismissed.

The appellant appealed his conviction for first-degree murder, arguing that the use of his DNA, which was on file from a 1995 sexual assault conviction, violated his s. 8 Charter rights against unreasonable search and seizure.

He also argued the trial judge erred in instructing the jury that individual items of evidence, including DNA findings, need not be proven beyond a reasonable doubt.

The Court of Appeal dismissed the appeal, holding that a convicted offender loses any reasonable expectation of privacy in identifying information derived from lawfully obtained DNA.

The court also found no error in the jury charge, as the trial judge properly instructed the jury to consider all evidence cumulatively to determine if the essential element of identity was proven beyond a reasonable doubt.

The respondent pleaded guilty to manslaughter and was sentenced to two years less a day in a provincial reformatory, followed by three years' probation, after receiving credit for pre-trial custody.

The Crown appealed the sentence, arguing the sentencing judge erred in principle by misapprehending the parties' positions and that the sentence was demonstrably unfit.

The Court of Appeal held that while the sentencing judge's supplementary reasons could not be considered, the original error did not significantly impact the reasoning.

The Court concluded the sentence, though at the low end of the range, was not demonstrably unfit and dismissed the appeal.

The appellant was convicted of paying for sexual services from a person under 18 years of age.

He appealed, arguing the trial judge erred in her jury instructions regarding his defence of mistake of age.

The Court of Appeal allowed the appeal, finding the trial judge gave conflicting and confusing instructions on the burden of proof concerning whether the appellant took all reasonable steps to ascertain the complainant's age.

The conviction was quashed and a new trial ordered.

The appellant was convicted of second degree murder following a stabbing during an altercation.

He appealed the conviction, arguing the trial judge erred in summarizing the pathologist's evidence regarding the deceased's mobility after being stabbed, and in instructing the jury on self-defence.

The Court of Appeal allowed the appeal, finding the trial judge's summary of the pathologist's evidence left an inaccurate impression and constituted reversible error.

The Court also found the trial judge erred by failing to instruct the jury that a person defending themselves cannot be expected to weigh to a nicety the exact measure of necessary defensive action.

A new trial was ordered.