Emily E. Marrocco

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 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 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 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, 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.

The appellant was convicted of second-degree murder and appealed on the grounds that the Criminal Code's provocation provisions were unconstitutional and that the trial judge erred in jury instructions on provocation.

The Court of Appeal dismissed the constitutional challenge, affirming its reasoning in a companion case.

The court also dismissed the appeal regarding jury instructions, holding that the trial judge correctly instructed the jury on the elements of assault and self-defence as they relate to the definition of provocation under section 232(2) of the Criminal Code, which requires the provocative act to constitute an indictable offence.

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, R.S., appealed his conviction for sexual exploitation and his sentence.

The conviction appeal challenged the trial judge's decision to allow the Crown to amend the indictment to include "position of trust" and the reliance on circumstantial evidence to establish a trust relationship.

The sentence appeal contested the lifetime Sexual Offender Information Registration Act (SOIRA) order and the mandatory victim fine surcharge.

The Court of Appeal dismissed the conviction appeal, finding no irreparable prejudice from the indictment amendment and no error in the trial judge's assessment of the trust relationship.

The Court allowed the sentence appeal, varying the SOIRA order to 20 years and setting aside the victim fine surcharge, as conceded by the Crown.

The appellants, U.K. and R.P., appealed their convictions for sexual assault, arguing the trial judge erred in jury instructions regarding fabrication as post-offence conduct and the application of the W.(D.) principles.

The Court of Appeal found that the trial judge erred by instructing the jury on fabrication of trial evidence without independent evidence, and by providing a deficient fabrication instruction that failed to distinguish between disbelieved and fabricated evidence, explain independent evidence, or require consideration of alternative explanations.

Furthermore, the trial judge erred in the W.(D.) instruction by conflating the appellants' evidence and treating defence evidence as an all-or-nothing proposition.

These errors were deemed prejudicial, going to the heart of credibility assessment and the burden of proof.

The court declined to apply the curative proviso.

The appellant appealed his sentence for child abduction contrary to a parenting order and disobeying a court order.

He argued the sentencing judge erred in applying the R. v. Proulx analysis for a conditional sentence, treated an essential element of the offence as an aggravating factor, failed to account for R. v. Duncan credit for onerous presentence custody conditions, and imposed a demonstrably unfit sentence.

The Court of Appeal dismissed the appeal, upholding the custodial sentence, finding no reversible error in the sentencing judge's approach to deterrence, denunciation, and the application of presentence credit principles, despite acknowledging a minor error regarding aggravating factors.

The appellant appealed his conviction for sexual assault with a weapon, sexual assault causing bodily harm, and sexual assault, and sought leave to appeal his five-year sentence.

The appeal challenged the trial judge's credibility and reliability findings, arguing they were flawed and inconsistent, particularly regarding the complainant's capacity to consent and alleged motive to fabricate due to a herpes diagnosis.

The Court of Appeal dismissed the appeal, upholding the trial judge's credibility findings and finding ample evidentiary support for the conclusion that the complainant lacked the capacity to consent.

Leave to appeal sentence was also denied as no error in principle was asserted.

The appellant, Christian Walters, appealed his convictions for unauthorized possession of a firearm, possession of a loaded restricted firearm, possession of a restricted weapon without a licence, possession of prohibited devices, careless storage of a firearm, and unlawful possession of cocaine, as well as his sentence of 38 months' imprisonment.

The convictions stemmed from items found during a search warrant execution at an apartment he frequented.

The trial judge found Walters had knowledge and control of the items based on circumstantial evidence, including his association with a shooting suspect and the location of his personal items near the seized contraband.

The Court of Appeal dismissed the conviction appeal, finding the trial judge's reasoning on possession was sound and the verdicts were not unreasonable, nor inconsistent with the co-accused's acquittal.

The sentence appeal was also dismissed, as the court found the sentence was appropriate given the serious nature of the offences involving both firearms and drugs, and the appellant's moral culpability.

This is an appeal from convictions for sexual interference, invitation to sexual touching, and sexual exploitation, and from the imposed sentence.

The convictions stemmed from the appellant's prolonged sexual abuse of his stepdaughter.

The conviction appeal, based on the trial judge's credibility assessments, was dismissed as the appellate court found no error in the trial judge's reasoning regarding the appellant's evidence.

The sentence appeal was allowed because the trial judge applied incorrect sentencing legislation that was not in force at the time of the offences.

The Court of Appeal re-sentenced the appellant, substituting a global sentence of nine years for the sexual offences, running concurrently, with a 90-day consecutive sentence for a breach of conditions offence.

The appellant appealed his convictions for assault, aggravated assault, assault causing bodily harm, and uttering threats to property, as well as his dangerous offender designation and indeterminate sentence.

The appeal raised issues regarding the trial judge's use of prior consistent statements, explanation of the complainant's conduct (Stockholm Syndrome), burden of proof, and reliance on the "ring of truth." The appellant also challenged the dangerous offender finding, arguing the trial judge failed to consider treatability and intractability at the designation phase and misapprehended expert evidence regarding recidivism and "burnout." The Court of Appeal dismissed all appeals, finding no reversible error in the conviction or the dangerous offender designation and sentence.

The appellant was convicted of assault with a weapon, possession of a weapon, break and enter, and theft.

Identity was the primary issue at trial.

The trial judge found the appellant guilty, rejecting his explanation for his whereabouts as fabricated.

The Court of Appeal allowed the conviction appeal, finding that the trial judge erred by drawing an inference of guilt from a finding of fabrication without independent evidence.

The convictions were set aside, and a new trial was ordered on all charges.

The sentence appeal was not addressed.

The appellant appealed his convictions related to a firebombing, arguing the trial judge erred in relying on circumstantial evidence.

The prosecution's case relied heavily on electronic messages sent via TextNow, SMS, and Facebook, as well as a blurry surveillance video and a stolen van.

The Court of Appeal found the trial judge erred by failing to recognize the inherent fallibility of the electronic messages, improperly relying on worthless video identification evidence, and inadequately addressing the timeline of the stolen van.

The appeal was allowed, the convictions were set aside, and a new trial was ordered.

The appellant, Andrew Bielli, appealed his conviction for possession of proceeds of crime for the benefit of a criminal organization.

The case centered on a police ruse designed to search the appellant and his vehicle without disclosing the true nature of the investigation, leading to the seizure of evidence.

The application judge found breaches of the appellant's Charter rights under ss. 10(a) and 10(b) but admitted the evidence under s. 24(2), finding no s. 8 or s. 9 breach and police good faith.

The Court of Appeal found that the application judge erred in concluding there was a de facto arrest, thus finding a s. 8 breach.

The Court also found errors in the s. 24(2) analysis, particularly regarding the police's good faith and reliance on prior case law, as the Charter violations were planned and deliberate.

The Court concluded that the impugned evidence should be excluded under s. 24(2) of the Charter.