Emily E. Marrocco

The Crown appealed the respondent's acquittal on a charge of intimidation by blocking or obstructing a highway under s. 423(1)(g) of the Criminal Code, arising from his leadership role in the 'Freedom Convoy' protests in Ottawa.

The trial judge had acquitted the respondent on the basis that the offence required proof of threats or violence and an intent to intimidate individuals when occurring in the context of a political protest.

The Court of Appeal allowed the appeal, holding that the trial judge erred in law by reading in elements not found in the text of the provision and by treating the political protest context as a defence to otherwise criminal conduct.

The Court substituted a conviction, finding that the respondent's conduct in blocking highways to compel the government to change its COVID-19 policies satisfied all elements of the offence.

The appellant appealed his convictions for four counts of sexual assault and his 11-year sentence.

He argued that expert evidence on the neurobiology of trauma was improperly admitted and that similar fact evidence was erroneously used across counts.

The Court of Appeal found that while the expert evidence was admitted in error, the error was harmless due to robust jury instructions, applying the curative proviso.

The court also upheld the trial judge's admission of similar fact evidence.

A motion to introduce fresh evidence regarding the appellant's deteriorating health was dismissed, as it would not have altered the proportionate sentence.

The appeal was dismissed.

The appellant appealed his convictions for human trafficking and related offences, arguing the application judge erred in dismissing his s. 11(b) Charter application for unreasonable delay.

The application judge found the net delay of 32.3 months exceeded the presumptive Jordan ceiling but was justified by the exceptional complexity of the case and the Crown's concrete plan to mitigate delay, which included preferring a direct indictment and streamlining counts.

The Court of Appeal upheld the application judge's findings, concluding that despite a minor calculation error regarding a bail adjournment, the overall delay was justified by the case's complexity.

The appellant was convicted of aggravated assault and weapons offences following a stabbing at a bar.

On appeal, he argued the trial judge erred in dismissing his s. 11(b) Charter application by improperly deducting pandemic-related delay, and in admitting a police officer's recognition evidence identifying him from video surveillance.

The Court of Appeal dismissed the appeal, finding no error in the trial judge's attribution of delay to the pandemic or in the application of the prior acquaintance test for the recognition evidence.

The appellant was convicted of second degree murder and manslaughter after shooting two men outside a nightclub.

He appealed his convictions and sentence, arguing that the trial judge erred by admitting evidence obtained in breach of his s. 8 Charter rights, misapprehending eyewitness testimony, improperly assessing the provocation defence, and refusing to grant a mistrial.

The Court of Appeal dismissed the conviction appeal, finding no reversible errors in the trial judge's rulings or assessment of the evidence.

The court also dismissed the sentence appeal, upholding the 18-year parole ineligibility period as proportionate.

The applicant, convicted of sexual offences against a minor and sentenced to seven years, sought bail pending his appeal.

The Crown conceded the appeal was not frivolous and there were no flight or public safety risks, but argued detention was necessary in the public interest.

The Court of Appeal found that the trial judge's failure to address material inconsistencies in the complainant's evidence regarding her post-offence contact with the applicant raised significant reviewability concerns.

Balancing enforceability and reviewability, the court concluded that the reviewability interest overshadowed the enforceability interest, and granted bail pending appeal.

The appellant appealed his conviction for sexual assault and extortion, raising two grounds: (1) whether the application judge erred in dismissing a s. 11(b) Charter application regarding trial delay following a mistrial, and (2) whether the Crown's improper question about child pornography rendered the retrial unfair.

The Court of Appeal held that mistrials do not reset the Jordan clock but must be assessed within the Jordan framework as potential discrete exceptional circumstances.

The mistrial in this case was found to be a discrete exceptional circumstance arising from a shared misunderstanding of law regarding the materiality of dates in the indictment.

The Crown's improper question was adequately remedied by timely and forceful corrective instructions from the trial judge.

The appeal was dismissed.

The appellant, Clayton Williams, appealed his conviction and indeterminate sentence for offences arising from two break and enters, one involving the sexual assault of a 13-year-old girl.

The Court of Appeal rejected arguments that the verdict was unreasonable, that the search warrant was invalid, and that a determinate sentence with long-term supervision was more appropriate.

The court found the trial judge’s factual findings and risk assessment reasonable and dismissed the appeal.

The appellant was convicted of sexual assault following a home invasion at a university residence and sentenced to nine years' imprisonment.

On appeal, he argued the trial judge erred in jury selection, misdirected the jury on reasonable doubt, and that the verdict was unreasonable.

He also appealed his sentence, arguing the trial judge misapprehended an expert opinion on his likelihood of re-offending.

The Court of Appeal dismissed the conviction appeal, finding no errors in the trial judge's jury screening or instructions, and upheld the sentence as eminently fit given the gravity of the offence and the appellant's extensive criminal record.

The appellant appealed his convictions for assault, assault with a weapon, and unlawful confinement against his former domestic partner.

He argued the trial judge erred by dismissing his s. 11(b) Charter application, failing to screen a juror for bias under s. 632 of the Criminal Code, refusing a mistrial after the complainant mentioned he had been in jail, and inadequately instructing the jury on discreditable conduct.

The Court of Appeal dismissed the appeal, finding that the trial judge properly deducted pandemic-related delay, the jury selection process did not result in prejudice, the mid-trial instruction cured any prejudice from the jail reference, and the jury instructions on discreditable conduct were adequate.

The appellant appealed his first-degree murder conviction for a shooting in a bar, arguing the trial judge erred in finding he was the shooter.

The Crown's case relied on circumstantial evidence, including security video footage and a lay witness who identified an encounter with the appellant on the video.

The Court of Appeal held that the trial judge did not err in admitting the lay witness's testimony identifying the event and the appellant in the video, as it fell within exceptions to the lay opinion evidence rule.

The Court also found the trial judge adequately addressed evidentiary deficiencies and that the verdict was reasonable based on a meticulous video tracing exercise.

The appeal was dismissed.

The applicant, C.G., sought release on bail pending his conviction appeal for two counts of sexual assault, for which he is serving a six-year custodial sentence.

The Crown opposed the application.

The court applied the three-part test under section 679(3) of the Criminal Code, requiring the applicant to establish that the appeal is not frivolous, he will surrender into custody, and his detention is not necessary in the public interest.

While the "not frivolous" threshold was met, the applicant failed to satisfy the court that he would surrender, given his history of non-compliance with immigration orders and the increased incentive to abscond due to potential removal from Canada and the lengthy sentence.

Furthermore, the court found that the applicant's detention was necessary in the public interest, concluding that the enforceability of the judgment outweighed reviewability due to the gravity of the sexual offence, the breach of trust involved, and the perceived weakness of the appeal grounds.

Consequently, the motion for release on bail was dismissed.

The applicant, convicted of sexual assault and sentenced to 11 years' imprisonment, sought a panel review of a decision denying him bail pending appeal under s. 680 of the Criminal Code.

He argued the bail judge erred in assessing his medical evidence, misunderstanding his release plan, and undervaluing the strength of his appeal.

The motions judge found no arguable material errors of fact or law in the bail judge's decision, concluding that the applicant remained a flight risk and that his detention was necessary in the public interest.

The application for a panel review was dismissed.

The appellant, Asim Shabbir, appealed his conviction for sexual assault, alleging fundamental errors in the trial judge's jury instructions.

The grounds of appeal included the failure to provide a "Villaroman" instruction regarding circumstantial evidence (specifically, the complainant's alleged drugging), inadequate instructions on assessing evidence inconsistencies, and a "Laboucan" error concerning the accused's credibility.

The Court of Appeal for Ontario dismissed the appeal, finding that the jury instructions, when read as a whole and in context, were functionally adequate.

The court noted the defence counsel's failure to object to the instructions at trial and that closing submissions could address certain gaps.

The court also found no error in the instruction regarding separate consideration of co-accused.

The appellant, Trayvon Boreland-Goode, appealed his convictions for possessing a loaded prohibited firearm and possessing a firearm contrary to a prohibition order.

The appeal raised two grounds: the trial judge's handling of a juror's note regarding another juror's influence during deliberations, and the reliability of a Crown witness's testimony concerning vehicle ownership.

The Court of Appeal dismissed the appeal, finding no error in the trial judge's decision to take the verdict without explicitly responding to the juror's note, as it did not involve a legal misapprehension and the verdict indicated the jury had resolved its internal difficulties.

The court also found the second ground of appeal, regarding the witness's memory of dates, to be without merit, as the crucial evidence of vehicle resale to the appellant was uncontradicted and supported the finding of constructive possession.

The applicant, an 83-year-old man convicted of multiple counts of sexual assault and sentenced to 11 years' imprisonment, applied for bail pending his appeal.

The court found that while the appeal was not frivolous due to an arguable ground regarding the admission of expert evidence, the applicant failed to establish that he would surrender into custody.

The court noted the applicant's significant resources, history of non-compliance with court orders, and the unsuitability of his proposed surety.

Furthermore, the court held that the applicant's detention was necessary in the public interest to maintain confidence in the administration of justice, given the gravity of the offences and the weakness of the remaining grounds of appeal.

The application for bail was dismissed.

The appellant appealed his conviction for robbery with a firearm and his 7-year mandatory minimum sentence.

The conviction appeal grounds included inadequate jury instructions on eyewitness identification (including recognition and in-dock ID), insufficient caution on after-the-fact conduct, and inflammatory Crown closing remarks.

The sentence appeal grounds challenged the finding that the unrecovered gun was a "firearm" and the imposition of a consecutive sentence.

The Court of Appeal dismissed both the conviction and sentence appeals, finding no reversible errors given the trial context and the evidence.

The appellant, A.B., appealed his conviction for sexual assault, arguing errors in the trial judge's jury charge regarding prior inconsistent statements, demeanour evidence, and wilful blindness/recklessness.

The Court of Appeal dismissed the first two grounds but found that the trial judge erred in instructing the jury on the mens rea requirement for sexual assault, specifically regarding recklessness and wilful blindness.

The trial judge's instruction incorrectly suggested an objective standard ("should have inquired") rather than the required subjective standard of knowledge.

The court found this error was not harmless, especially given the jury's acquittal on other counts, suggesting a potential reasoning error based on what a reasonable person ought to have known.

The appeal was allowed, and a new trial was ordered.

The appellant, Elias Gibb, appealed his conviction for second-degree murder, raising three grounds: the constitutionality of the Criminal Code's provocation provision (s. 232(2)), the trial judge's failure to provide a free-standing instruction on intoxication's impact on mens rea for murder, and an error in the W.D. instruction for co-accused.

The Court of Appeal dismissed the constitutional challenge based on a companion case.

Regarding intoxication, the court found no error, noting the defence strategically chose to integrate intoxication into the provocation defence rather than seeking a separate instruction.

The court also found that while the W.D. instruction was imperfect in its wording, it did not lead to an unfair verdict when read in context, as the jury was otherwise properly instructed on separate verdicts for each accused.

The appeal was dismissed.

The appellant, Sukhchain Brar, appealed his conviction for first-degree murder of his wife, Gurpreet Brar.

He admitted the killing but sought a manslaughter conviction based on lack of mens rea or provocation.

The appeal raised constitutional challenges to s. 232(2) of the Criminal Code, which defines the partial defence of provocation, arguing it infringes s. 7 of the Charter by being arbitrary and overbroad.

The Court of Appeal dismissed the constitutional challenge, finding the purpose of the amendment was to limit provocation to serious unlawful conduct, not just to address "honour killings." The court also dismissed other non-constitutional grounds of appeal related to jury instructions on provocation, cultural/religious motive, ante-mortem statements, and after-the-fact conduct.