Emily E. Marrocco

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, a manual osteopathy practitioner, appealed his convictions for sexual assault, sexual interference, and invitation to sexual touching.

He argued that his right to a trial within a reasonable time under s. 11(b) of the Charter was breached and that the trial judge misapprehended his evidence.

The Court of Appeal found that while the trial judge erred in treating delay related to Bill C-75 as an exceptional circumstance, she correctly deducted the delay caused by the COVID-19 pandemic.

After deducting the COVID-19 delay, the total delay fell below the 18-month presumptive ceiling.

The court also found no misapprehension of evidence.

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 20 of his 53 convictions for internet-based child exploitation offences, arguing that the trial judge relied on statutory presumptions of belief in age that were subsequently declared unconstitutional.

The Court of Appeal agreed, declaring the presumptions in ss. 171.1(3) and 172.2(3) of the Criminal Code unconstitutional and finding the trial judge relied on them to convict.

The court declined to apply the curative proviso and ordered a new trial on the 20 counts.

The global sentence of 11 years was maintained, though specific illegal concurrent sentences were varied.

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 offender pled guilty to two counts of knowingly transferring a firearm after using his Possession and Acquisition Licence to purchase and sell handguns for profit.

The Crown sought a five-year sentence, while the offender sought a conditional sentence, arguing the mandatory minimum was unconstitutional.

The court found that a conditional sentence would not adequately address the principles of denunciation and deterrence given the gravity of firearms trafficking.

After weighing the offender's lack of a criminal record, guilty plea, and systemic factors against the seriousness of the offence, the court imposed a sentence of four years in custody.

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.

The Ontario Court of Appeal addressed two appeals concerning the Ontario Review Board's (ORB) jurisdiction to conduct disposition review hearings by videoconference without the accused's consent during the COVID-19 pandemic.

The applicant, found not criminally responsible (NCR), objected to a virtual hearing.

The ORB proceeded without consent and subsequently ordered her detention.

The Superior Court quashed the ORB's jurisdictional ruling via certiorari.

The Court of Appeal dismissed the Crown's appeal of the certiorari order, affirming that the ORB lacked statutory authority under the Criminal Code to compel virtual attendance without consent.

It also allowed the applicant's appeal of the detention order, finding it void due to the ORB's violation of procedural rules (Rule 43.03(5) of the Criminal Proceedings Rules) by proceeding while a certiorari application was pending.

The court emphasized that the Criminal Code implies a right to physical presence unless consent is given for virtual attendance, and that the pandemic does not justify exceeding statutory jurisdiction.

The Crown appealed a demonstrably unfit 18-month sentence for sexual assault and breach of probation, arguing it failed to adequately address denunciation and deterrence given the accused's high moral blameworthiness and prior sexual assault conviction.

The Court of Appeal found the original sentence disproportionate but, considering fresh evidence of the accused's rehabilitation, varied the sentence to increase the probation period from two to three years instead of imposing further incarceration.

The appellant, previously found NCRMD for assault with a weapon and robbery, appealed a conditional discharge disposition by the Ontario Review Board.

The appellant argued the Board failed to fulfill its inquisitorial role and improperly shifted the burden of proof regarding whether he posed a significant threat to public safety.

The Court of Appeal dismissed the appeal, finding the Board had sufficient evidence to make an informed decision and did not shift the burden of proof, as its concerns about the appellant's stability were amply supported by psychiatric evidence.

The appellant appealed his sentence, arguing that the continuing pandemic should affect sentencing principles.

The Court of Appeal dismissed the appeal as moot because the appellant had already served his custodial sentence.

The Court declined to consider the pandemic's effect on sentencing principles, noting it had recently opined on the issue in another case.

The appellant, previously found not criminally responsible for uttering a death threat, appealed a disposition of the Ontario Review Board ordering his continued detention at a secure forensic unit.

The appellant argued the Board failed to properly assess the likelihood and seriousness of potential future harm under the Winko test.

The Court of Appeal dismissed the appeal, finding the Board reasonably relied on expert evidence detailing the appellant's recent clinical deterioration, substance abuse, and threatening behaviour to conclude he remained a significant threat to public safety.

The appellant, who had a lengthy history of violent offences against intimate partners, was convicted of attempted murder and choking.

The sentencing judge designated him a dangerous offender and imposed an indeterminate sentence, finding no reasonable expectation that a lesser measure would adequately protect the public.

On appeal, the appellant argued the judge improperly presumed an indeterminate sentence was required and failed to adequately consider treatment options.

The Court of Appeal dismissed the appeal, holding that the sentencing judge engaged in a rigorous, individualized assessment of the evidence and properly concluded that the appellant's risk could not be managed in the community.