Elise Sari Nakelsky

The Court of Appeal for Ontario allowed the conviction appeals of William McDonald (second-degree murder) and Thomas Lako (manslaughter) arising from the 2012 shooting death of Jonathan Zak.

The court found that the trial judge erred in admitting a hearsay police statement from a deceased witness for the truth of its contents and in failing to adequately caution the jury regarding discreditable conduct evidence.

The court ordered new trials for both appellants.

The appellant, Michael John William Ball, appealed his conviction for first-degree murder, challenging the trial judge's jury charge on two grounds: the standard of proof regarding the cause of death and the adequacy of the Vetrovec warning for an unsavoury witness.

He also argued that the trial judge erred in handling the jury's request to review expert evidence.

The Court of Appeal dismissed the appeal, finding no reversible errors.

The court concluded that the jury charge, when considered holistically, adequately equipped the jury, and the Vetrovec warning fulfilled its purpose.

Furthermore, the trial judge's decision to cease playback of expert testimony upon the jury's indication that their questions were resolved was deemed a reasonable exercise of discretion, as the reviewed evidence was uncontroversial and did not require further contextualization.

Paramedics Christopher Marchant and Steven Snively were convicted of failing to provide the necessaries of life to a shooting victim.

They appealed their convictions, arguing a flawed analytical approach, insufficient/contradictory reasons, and misapprehension of evidence by the trial judge.

The Crown sought leave to appeal their 18-month conditional sentences, requesting custodial terms.

The Court of Appeal dismissed both the conviction appeals and the Crown's sentence appeals, upholding the trial judge's findings that the paramedics' actions constituted a marked departure from the standard of care and that the conditional sentences were fit.

The Crown sought leave to appeal the nine-month imprisonment sentence and three years probation imposed on the respondent for assault causing bodily harm and uttering a threat.

The Crown argued the sentencing judge erred in principle by not properly considering denunciation and deterrence, and that the sentence was unfit.

The Court of Appeal granted leave but dismissed the appeal, finding no error in principle and concluding the sentence was not demonstrably unfit, despite being at the lower end for the offence.

The appellant, Michael Davani, appealed his conviction for murder, raising three grounds: improper cross-examination on prior discreditable conduct by co-accused's counsel, unfairness due to the trial judge's criticism and interjections, and an unbalanced jury charge.

The Court of Appeal dismissed the appeal, finding no error in the trial judge's application of the Pollock principles regarding bad character evidence, no inappropriate or excessive judicial interventions, and that the jury charge was fair and balanced when read as a whole.

The appellant, Loujack Café, appealed his convictions for four attempted murders and one aggravated assault, and the concurrent life sentence, stemming from violent random attacks in Hamilton.

The appeal raised three issues: undue delay under s. 11(b) of the Charter (R. v. Jordan), the trial judge's treatment of cross-count similar fact evidence, and the fitness of the sentence.

The Court of Appeal dismissed all grounds of appeal, finding no error in the trial judge's Jordan analysis, similar fact evidence rulings, or the imposed sentence.

Melissa Merritt and Christopher Fattore appealed their first-degree murder convictions.

Fattore's appeal, challenging the voluntariness of his confession, was dismissed as the court found no palpable and overriding error in the trial judge's decision.

Merritt's appeal, however, was allowed.

The Court of Appeal found that the trial judge erred in jury instructions regarding the use of a partially unintelligible "airport intercept statement" as an admission of guilt, and also misdirected the jury on the burden of proof concerning innocent explanations for "Walmart omissions" (after-the-fact conduct).

Consequently, Merritt's conviction was set aside, and a new trial was ordered for her.

The appellant appealed his convictions for sexual assault and related offences, his dangerous offender designation, and his indeterminate sentence.

The appeal challenged the fairness of the trial due to the complainant's detention as a material witness and the assessment of her credibility.

It also contested the dangerous offender designation, arguing errors in defining "pattern" of behaviour and reliance on disputed facts, and the indeterminate sentence, asserting the trial judge erred by presuming indeterminate detention.

The Court of Appeal dismissed the conviction appeal, finding no miscarriage of justice or error in credibility assessment.

It upheld the dangerous offender designation.

While acknowledging the trial judge's error in principle regarding the indeterminate sentence by presuming it and conflating the designation and sentencing stages, the Court of Appeal re-sentenced the appellant and ultimately imposed the same indeterminate sentence, concluding that no lesser measure would adequately protect the public given the appellant's extensive criminal history, low prospects for treatability, and manageability issues, despite mitigating factors related to systemic anti-Black racism.

The Crown appealed the acquittal of the respondent on a charge of second-degree murder, raising three grounds: a breach of jury secrecy during a juror inquiry, errors in a s. 8 Charter analysis and subsequent s. 24(2) exclusion of evidence, and errors in excluding hearsay evidence.

The Court of Appeal dismissed the appeal, finding no reversible error in the trial judge's handling of the jury inquiry, upholding the application judge's decision to exclude evidence under the Charter, and affirming the exclusion of hearsay statements due to reliability concerns.

The appellant, Andrew Cowan, appealed his conviction for second-degree murder.

The appeal was based on two primary grounds: inadequate disclosure by Crown counsel regarding the extent of his friendship with the trial judge, and the trial judge's post-conviction social interactions with the prosecution team.

The Court of Appeal found that the Crown's failure to fully disclose the nature of his relationship with the trial judge, including a prior agreement not to appear on the same cases, constituted a miscarriage of justice.

Additionally, the trial judge's decision to meet for drinks and dinner with the prosecution team immediately after the jury's verdict, and before sentencing, created a reasonable apprehension of bias.

The Court allowed the appeal and ordered a new trial.

Michele Fiorilli appealed his convictions for four counts of fraud related to two series of real estate transactions, arguing ineffective assistance of trial counsel.

The transactions involved fraudulently obtained mortgage funds from the Royal Bank of Canada (RBC), with losses ultimately borne by the Canada Mortgage and Housing Corporation (CMHC).

The appellant alleged counsel prevented him from testifying, lost crucial evidence, failed to raise a defence theory, failed to pursue disclosure, and incompetently discredited witnesses.

The Court of Appeal dismissed the appeal, finding that the appellant failed to establish the factual, performance, or prejudice components of the ineffective assistance of counsel test.

The appellant appealed his conviction for first-degree murder, alleging errors in the trial judge's jury instructions concerning planning and deliberation and after-the-fact conduct.

The Court of Appeal dismissed the appeal, finding that the trial judge's instructions were legally sound and appropriately tailored to the jury's questions regarding the timing of planning and deliberation.

The court also affirmed that after-the-fact conduct is admissible circumstantial evidence that can be used to determine intent and distinguish between levels of culpability, including supporting an inference of planning and deliberation, provided proper cautions are given.

An appellant, convicted in 1998 of administering a noxious substance to her child based on flawed Motherisk Drug Testing Laboratory (MDTL) hair analysis, successfully reopened her conviction appeal.

Fresh evidence, in the form of two Ministry of the Attorney General reports (2015, 2018) detailing the unreliability of MDTL testing, was admitted.

The Court of Appeal found that without the discredited MDTL evidence, the appellant would not have been convicted.

The conviction for administering cocaine and the stayed conviction for criminal negligence were set aside, and acquittals were entered.

The court also lifted a publication ban on the appellant's name at her request, acknowledging the wrongful conviction and allowing for public correction.

The appellant, James McCullough, appealed his convictions for first-degree murder and committing an indignity to a human body.

He admitted to killing and dismembering the victim but claimed it was a reaction to a sexual advance and not planned or deliberate.

The appeal raised two main issues: the trial judge's failure to instruct the jury on post-offence conduct and the admission of evidence regarding his desire to commit cannibalism and rap lyrics.

The Court of Appeal dismissed the appeal, finding no error in the trial judge's handling of post-offence conduct evidence, as it was relevant to planning and deliberation and alternative explanations were presented to the jury.

The court also upheld the admission of the cannibalism ideation and rap lyrics, finding their probative value on issues of motive, intention, and planning outweighed their prejudicial effect, especially with proper limiting instructions.

The appellant was convicted of first degree murder in the death of George Washington Burnett.

The appellant appealed on the grounds that the trial judge erred in his instructions on the elements of second degree and first degree murder, and in his instructions regarding after-the-fact conduct evidence.

The Court of Appeal dismissed the appeal, finding that the trial judge's instructions on planning and deliberation were properly tailored to the live issues at trial, that the after-the-fact conduct evidence was admissible and relevant to planning and deliberation, and that the jury was adequately instructed on the limited use of such evidence.

Crown appeal of sentence for three counts of attempted murder, one count of arson causing damage to property, and one count of possession of incendiary materials.

The accused set fire to his girlfriend's home with the intent to kill her and her two young children (ages 7 and 1) after she asked him to move out.

The seven-year-old suffered severe burns resulting in permanent scarring and loss of functionality in her hands and feet.

The trial judge imposed a sentence of 11 years concurrent on each attempted murder count.

The Crown appealed, seeking a life sentence or elevated sentence.

The Court of Appeal found the sentence demonstrably unfit and increased it to 20 years concurrent on each attempted murder count.

The appellant was convicted of second degree murder in connection with a home invasion robbery in Minden, Ontario.

The appellant and three co-accused drove from Scarborough to commit the robbery, which resulted in the death of Ryan Kennedy.

The appellant struck Kennedy in the jaw with the butt of a pellet gun after Kennedy had already been struck twice on the head with a baseball bat by a co-accused.

The appellant appealed on two grounds: first, that there was insufficient evidence that his blow was a significant contributing cause of death, and second, that a statement by the trial Crown in closing argument caused a miscarriage of justice.

The Court of Appeal dismissed the appeal, finding that the jury's verdict was reasonable and that any improper Crown statement did not materially influence the verdict.

The Crown appealed the sentence imposed on the respondent following conviction on four counts of sexual interference and four counts of sexual assault.

The trial judge stayed the sexual assault charges and imposed a total sentence of two and a half years.

The Crown argued the sentence was manifestly unfit and sought a sentence of five years.

The appellate court found that while the sentence could have been higher, it was not manifestly inadequate given the totality of circumstances, including the respondent's age and status as a first offender.

Leave to appeal was granted but the appeal was dismissed.

Two members of the YBK (Young Buck Killers) criminal organization appealed their convictions for gang-related offences including trafficking in firearms and drugs.

The appellants challenged the trial judge's jury instructions on trafficking charges, territorial jurisdiction, and hearsay evidence.

The Court of Appeal upheld all convictions, finding no misdirection on the trafficking charges, no jurisdictional error as the offences had meaningful connections to Ontario, and no error in the admission of hearsay evidence.

The applicant's leave to appeal sentence was granted but the sentence of 13 years' imprisonment was upheld as proportionate to the serious offences committed in furtherance of a violent criminal organization.

The appellant was convicted of first-degree murder in the shooting death of Jonathan Chambers on March 7, 2007, north of Barrie.

The Crown's case relied heavily on evidence from three accomplices who had entered into plea agreements: Tafari Williams, Terrence Walker, and Gregory Millar.

The appellant appealed on grounds that the trial judge improperly relied on evidence from Walker and Millar to confirm Williams' testimony despite potential tainting, and that the trial judge misapprehended certain evidence.

The Court of Appeal dismissed the appeal, finding that the trial judge properly applied the Vetrovec principles and that any errors in misapprehension were not material to the conviction.