Dirk Derstine

The Supreme Court of Canada dismissed S.B.’s sentencing appeal and upheld an adult sentence for first degree murder under s. 72 of the Youth Criminal Justice Act.

The majority held the Court of Appeal erred on the standard of proof by not applying beyond a reasonable doubt to rebuttal of diminished moral blameworthiness, but found no impact on outcome because the presumption was rebutted on the record and no reviewable error occurred in the accountability analysis, including treatment of social context evidence and rehabilitative potential.

Concurring judges agreed the appeal should be dismissed but disagreed that beyond a reasonable doubt is the proper standard for rebuttal under s. 72(1).

The Court of Appeal for Ontario dismissed Mauro Granados-Arana’s conviction appeal for first degree murder, finding no reversible error in the trial judge’s Vetrovec instructions regarding unsavoury witnesses.

The court allowed the sentence appeal, quashing the order that parole ineligibility run consecutively to a prior sentence, in light of the Supreme Court’s decision in R. v. Bissonnette.

The period of parole ineligibility will now run concurrently.

This sentencing decision concerns two co-accused, Tafari Bezabeh and Justin Harker, convicted by a jury of attempt murder and first degree murder arising from two closely connected shootings in Toronto on June 19, 2022.

The court reviews the facts, aggravating and mitigating circumstances, and the applicable case law, ultimately imposing life imprisonment for both offences, with no parole eligibility for 25 years on the murder count and a concurrent life sentence for attempt murder.

The decision emphasizes the need for denunciation and deterrence in the context of planned, public gun violence.

The Crown sought to admit evidence of extrinsic discreditable conduct, including cell phone images of the accused in possession of handguns and ammunition seized from a townhouse, in a murder and attempted murder trial.

The court applied the `Handy` test, admitting the cell phone images and ammunition due to their high probative value regarding identity, party liability, and planning, which outweighed their prejudicial effect.

However, the court excluded the admission of two specific handguns seized from the townhouse, as they were not the murder weapons and their probative value was minimal compared to the already admitted evidence and potential for prejudice.

The appellant, Harris Nnane, appealed his first-degree murder convictions, seeking to introduce fresh evidence from Alexander Fountain, who identified a third man, Jaiden Jackson (now deceased), as the shooter.

Nnane also argued the verdict was unreasonable regarding identity and planning/deliberation, and that the trial judge erred in jury instructions and by not conducting a post-verdict juror inquiry.

The majority dismissed the fresh evidence motion, finding it not credible due to collusion, and upheld the convictions, concluding the verdict was reasonable and no errors occurred.

The dissenting judge would have admitted the fresh evidence and ordered a new trial, finding Fountain's evidence reasonably capable of belief.

The accused, Tafari Bezabeh, brought a pre-trial motion under s. 8 of the Charter of Rights, challenging the facial sufficiency of two search warrants for a London, Ontario residence and a car.

The warrants were executed nearly three weeks after two Toronto shootings for which the accused was charged with first-degree murder and attempted murder.

The applicant argued that the warrants lacked reasonable grounds, contending that the residence was merely transitory and that the evidence would be stale due to the elapsed time.

The court dismissed the motion, finding that reasonable inferences supported the belief that relevant evidence would still be present at the rental residence, and that the standard for issuing a search warrant (reasonable and probable grounds) does not require the exclusion of alternative exculpatory inferences or proof on a balance of probabilities.

The accused was tried before a judge alone on charges of robbery, wearing a disguise with intent to commit an indictable offence, and conspiracy to commit robbery arising from an attempted armed carjacking by three masked men.

The Crown's case on identity was wholly circumstantial and relied on eyewitness evidence, an abandoned BMW linked to the offence, the accused's driver's licence and fingerprint in that vehicle, surveillance video showing two men near where the vehicle was abandoned, and clothing seized from the accused's residence matching distinctive clothing seen on video.

Applying the circumstantial evidence framework, the court held that guilt was the only reasonable inference and found the accused guilty on all three counts.

The court nevertheless expressed concern about the propriety of adding a conspiracy count where the only evidence of agreement was the commission of the substantive offence, and invited submissions on the rule against multiple convictions and possible severance.

The Crown sought to admit a video-recorded statement made by the accused, Jennifer Sacobie, to police.

The defence argued the statement was involuntary and obtained in violation of Sacobie's s. 10(b) Charter right to counsel.

The court found that while the statement was voluntary, the police had seriously breached Sacobie's Charter rights by failing to inform her of her right to counsel upon detention and by continuing to question her despite her repeated requests for a lawyer.

The court further found that no "fresh start" occurred to sever the link between the Charter breach and the subsequent statement.

Applying the Grant factors, the court concluded that admitting the statement would bring the administration of justice into disrepute, and therefore excluded it.

The appellant, Christopher Husbands, appealed the life sentences imposed for two counts of manslaughter and other related offences stemming from a 2012 shooting at the Eaton Centre.

The appeal raised four main categories of error: misapplication of social context evidence (IRCA), incorrect test for PTSD link to conduct, misapplication of delayed parole test and failure to remedy Charter breaches, and demonstrably unfit sentence.

The Court of Appeal dismissed the appeal, finding that the trial judge correctly applied the legal principles, including those related to social context evidence (consistent with Morris), mental disorder as a mitigating factor (consistent with Prioriello and Hilbach), and the two-stage Zinck test for parole eligibility.

The court concluded that the life sentences were not demonstrably unfit, emphasizing the seriousness of the crimes, the profound victim impact, and the paramountcy of general deterrence and denunciation in such cases.

The appellants were convicted of first-degree murder based primarily on the testimony of a co-operating witness who was present during the shooting.

On appeal, the Court of Appeal found that the trial judge made three cumulative errors that rendered the trial unfair: providing an inadequate answer to a jury question about the absence of corroborative evidence, failing to correct improper statements made by the Crown during closing submissions, and improperly excluding a hearsay statement made by the key witness to his lawyer.

The Court ordered new trials for two of the appellants.

For the third appellant, the Court found the verdict unreasonable due to deeply flawed stranger identification evidence and entered an acquittal.

The appellant was convicted of two counts of first degree murder and appealed on the basis that the trial judge erred by charging the jury on party liability.

The Supreme Court unanimously held that party liability was properly left with the jury as the evidence provided it with an air of reality.

The Court agreed with the dissenting judge below that the trial judge erred in his instructions on party liability, finding that the jury was never clearly told the appellant would have needed to know the principal intended to kill the victims in a planned and deliberate manner to be liable as an aider.

Nonetheless, the curative proviso under s. 686(1)(b)(iii) of the Criminal Code applied because the errors were harmless and there was no reasonable possibility the jury would have reached a different verdict.

Appeal dismissed and convictions upheld.

The appellant, William Cummins, appealed his conviction for first-degree murder and unlawful confinement.

The appeal raised two main issues: the trial judge's mid-trial ruling allowing the Crown to use the appellant's prior testimony from a mistrial, and the application of constructive murder provisions under s. 231(5) of the Criminal Code.

The Court of Appeal upheld the trial judge's discretionary decision regarding the use of prior testimony, finding no error.

However, the court found that the trial judge erred in instructing the jury on the "same transaction" test for constructive murder by stating that the unlawful confinement did not need a causal connection to the murder, which contradicted established jurisprudence.

Consequently, the first-degree murder conviction was reduced to second-degree murder, and the matter was remitted for parole eligibility determination.

The appellant, S.B., appealed his adult sentence for first-degree murder, arguing the youth court judge erred in finding him the shooter, provided insufficient reasons, and failed to consider the presumption of diminished moral culpability for young offenders.

The Court of Appeal granted leave to appeal but dismissed the appeal, finding that while the youth court judge erred by not explicitly applying the presumption of diminished moral culpability, a de novo analysis applying the correct principles still resulted in the imposition of an adult sentence due to the seriousness of the offence and S.B.'s demonstrated maturity and lack of rehabilitation.

Pierre Aragon was re-sentenced for aggravated assault after his indeterminate dangerous offender sentence was set aside on appeal.

The Crown and defence jointly submitted that the criteria for a dangerous offender finding were no longer met, proposing a finite sentence followed by a long-term supervision order.

The court accepted the joint submission, finding Aragon to be a long-term offender, and imposed a 7-year custodial sentence with credit for time served, followed by a 10-year long-term supervision order.

The court considered the gravity of the offence, Aragon's extensive criminal record, and the principle of proportionality, distinguishing his case from co-accused due to differing facts and antecedents.

The offender was convicted of unauthorized possession of a loaded firearm following an acquittal for second-degree murder.

The Crown sought 8-10 years, while the defence sought 4-6 years.

The court considered the offender's serious criminal record, including prior firearm and violence convictions, and breaches of weapons prohibitions, as aggravating factors.

Mitigating factors included his youth, family support, disadvantaged background, and harsh pre-sentence custody conditions.

The court determined the appropriate range for a second s. 95 offence is 6-9 years and imposed a sentence of 7 years, less 834 days of enhanced credit for pre-sentence custody.

The accused, Naod Tsegazab, was charged with second-degree murder and unlawful possession of a loaded firearm after a fatal shooting in an apartment stairwell.

The co-accused, Joseph Bryan, was charged with accessory after the fact to murder.

The Crown's case relied heavily on circumstantial evidence and surveillance video.

The court found an air of reality to Tsegazab's claim of self-defence, as the deceased had led him into the stairwell and fired ten shots at him.

The Crown failed to prove beyond a reasonable doubt that Tsegazab did not act in self-defence.

Tsegazab was acquitted of murder but convicted of the firearms charge.

Consequently, Bryan was acquitted of being an accessory after the fact.

The appellant, Ricardo Francis, appealed his convictions for possessing a loaded firearm and possession of drugs for trafficking, and his seven-year sentence.

The convictions arose from vehicle and strip searches conducted after his arrest on an outstanding warrant.

The Court of Appeal dismissed the conviction appeal, finding the searches lawful under s. 8 of the Charter.

However, the Court granted leave to appeal the sentence, finding that the trial judge erred in principle by failing to adequately consider the principle of restraint for a youthful, first-time offender.

The sentence was varied from seven years to five years imprisonment.

Le requérant, reconnu coupable de possession d'héroïne en vue d'en faire le trafic, a contesté la validité constitutionnelle du paragraphe 5(2) de la Loi réglementant certaines drogues et autres substances.

Il alléguait que la disposition violait les articles 7 et 15 de la Charte canadienne des droits et libertés en criminalisant les « bons samaritains » qui tentent de fournir un approvisionnement sécuritaire aux toxicomanes.

La Cour a rejeté la requête, concluant que la loi ne crée pas de discrimination fondée sur la dépendance et que l'atteinte au droit à la liberté n'est ni d'une portée excessive ni totalement disproportionnée par rapport aux objectifs de santé et de sécurité publiques de l'État.

The applicant, charged with two counts of first-degree murder and two firearms offences following a nightclub shooting, brought a motion for directed verdicts at the close of the Crown's case.

The applicant argued there was no evidence of planning and deliberation for the intended target, and no basis for liability regarding the unintended victims.

The court agreed there was insufficient evidence of planning and deliberation, directing verdicts of second-degree murder on the homicide counts.

However, the court found sufficient evidence of co-principal liability and transferred intent to leave the charges relating to the unintended victims to the jury.

The appellant appealed his conviction for the first degree murder of his wife.

He argued the trial judge erred by not leaving the partial defence of provocation with the jury, and by leaving first degree murder based on planning and deliberation and constructive murder with the jury.

The Court of Appeal found no error regarding provocation or planning and deliberation.

However, the Court held the trial judge erred in leaving constructive murder for the jury, as the murder was completed before the subsequent unlawful confinement of a witness, breaking the required causal connection.

A new trial was ordered for the first degree murder charge.