Diana M. Lumba

The appellant appealed his conviction and sentence for breach of probation.

He argued the trial judge erred by admitting hearsay evidence regarding the self-identification of the person he was associating with, and by relying on in-court identification.

The appeal court found that the admissible evidence, considered as a whole, was sufficient to support the conviction.

The court also upheld the consecutive sentence, noting that the breach of a court order shortly after release from custody was egregious and warranted a consecutive sentence.

The appeal was dismissed.

The appellant pleaded guilty to robbery and was sentenced to one year of imprisonment.

On appeal, she introduced fresh evidence that her trial counsel failed to advise the sentencing judge of a co-accused's six-month sentence and the immigration consequences of a sentence of six months or more.

The Court of Appeal admitted the fresh evidence, found the appellant's culpability similar to her co-accused, and reduced the sentence to six months less a day to preserve her right to appeal to the Immigration Appeal Division.

The Crown appealed an acquittal on a charge of breaching a prohibition order by attending a municipal sports facility while children were present elsewhere in the building.

The appeal court held the trial judge erred in all three grounds for acquittal: the incorrect date in the information was surplusage and should have been addressed through submissions and possible amendment; the declaration that the words “community center” were inoperative under s. 161 required a properly noticed constitutional challenge; and the facility met the ordinary meaning of a community center within the statutory purpose of protecting children.

The court declined to enter a conviction because potential defences of due diligence, lawful excuse, and officially induced error had not been determined.

The appeal was allowed and a new trial ordered.

The appellant was convicted of firearm and drug offences arising from cross-border smuggling trips where she transported drugs to the U.S. and returned with guns.

She appealed her convictions, arguing the trial judge erred in instructing the jury on wilful blindness and allowing cross-examination on her knowledge of gun crime in Toronto.

She also appealed her seven-year sentence.

The Court of Appeal dismissed the conviction appeal, finding sufficient evidence to support the wilful blindness instruction and no unfairness in the cross-examination.

The sentence appeal was also dismissed, as the sentence was fit and within the appropriate range.

The appellant appealed sentence after the trial judge imposed a term exceeding the statutory maximum for unlawful possession of a firearm under s. 91 of the Criminal Code.

The Crown conceded the error.

The court held that, applying the proper sentencing range and taking account of fresh evidence of the appellant's institutional progress, a sentence of 45 months was appropriate before credit for pre-trial custody.

Applying enhanced credit under Summers, the court reduced the sentence to 17 months while maintaining the ancillary orders.

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.