Eric S. Neubauer

The appellant, Justin Aghayere Omoragbon, sought leave to appeal his 26-month sentence for breaking and entering a dwelling-house.

He argued that the sentencing judge erred by not accepting the 18-month sentence proposed by the Crown and later adopted by the defence.

The Court of Appeal found that there was no joint submission on sentence, no violation of the principles in R. v. Nahanee or R. v. Anthony-Cook, and that the sentencing judge properly considered the mitigating factors and the appellant’s circumstances.

Leave to appeal was granted, but the appeal was dismissed.

The applicant sought bail pending his appeal of convictions and a 78-month sentence for serious offences involving intimate partner violence committed while on release.

The Crown conceded the appeal was not frivolous but opposed release on public interest grounds.

The court applied the Oland framework, balancing the reviewability interest against the enforceability interest.

Although the applicant raised an arguable ground of appeal regarding restrictions on cross-examination, the court found the enforceability interest predominated due to the gravity of the offences, the breach of a prior release order, and residual public safety concerns.

The application for bail pending appeal was dismissed.

The appellant failed to surrender to the detention centre as required by his release conditions for his appeal.

Despite efforts to confirm his surrender, no information was received.

The Court of Appeal for Ontario dismissed the appeal as abandoned due to the appellant's non-compliance with release conditions and issued a bench warrant.

The appellant was convicted of sexual assault based on a 1983 incident, with identity being the central issue.

The complainant identified the appellant by voice, not sight.

The appeal argued that the trial judge erred by failing to provide an adequate eye-witness identification caution and an insufficient voice identification caution.

The Court of Appeal found that both cautions were essential given the frailties in the identification evidence, including the historical nature of the allegations and the complainant's limited observation.

The court concluded that the errors were not harmless and could have affected the verdict.

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

The Crown appealed a decision by the Summary Conviction Appeal Court (SCAC) that had allowed the respondent's appeal of his "over 80" and impaired driving convictions, ordering a new trial and excluding breathalyzer results.

The SCAC found errors in the trial judge's s. 10(b) Charter compliance findings and the adequacy of reasons for the impaired driving conviction.

The Court of Appeal allowed the Crown's appeal, finding no s. 10(b) breach by the police and that the trial judge's reasons were adequate.

The "over 80" conviction was restored, and the stay on the impaired driving charge was maintained.

This decision concerns the sentencing of the defendant for manslaughter, to which he pleaded guilty.

The offence involved the fatal assault of his intimate partner, who was vulnerable due to drug and alcohol consumption.

The assault was brutal and prolonged, resulting in blunt force trauma and internal injuries.

Aggravating factors included the domestic context, victim vulnerability, the vicious nature of the assault, the defendant's failure to summon immediate medical aid, and prior abuse.

Mitigating factors included the guilty plea, sincere remorse, youthful first offender status, harsh pre-sentence custody conditions, rehabilitative efforts, and strong family support.

The court balanced these factors, imposing a sentence of eight years in jail, less pre-sentence custody credit.

The appellant, J.N., appealed convictions for sexual assault and sexual interference.

The Court of Appeal allowed the appeal, quashed the convictions, and ordered a new trial, finding that the trial judge's reasons were insufficient for meaningful appellate review.

Specifically, the trial judge failed to adequately address the complainant's prior inconsistent allegation and other material inconsistencies in her evidence, which were central to her credibility and reliability.

The appellant appealed his conviction for drug trafficking, possession of proceeds of crime, and possession for the purpose of trafficking, arguing the trial judge gave deficient jury instructions regarding eyewitness identification, voice identification, and circumstantial evidence (Villaroman caution).

The Court of Appeal found that the trial judge did err in failing to provide these cautions.

However, the court applied the curative proviso under s. 686(1)(b)(iii) of the Criminal Code, finding that the evidence against the appellant was overwhelming, making a conviction inevitable despite the errors.

The appeal was dismissed.

The appellant appealed his summary convictions for breach of recognizance and resisting a peace officer, arguing the trial judge erred in dismissing his Charter applications.

The appeal judge found that the trial judge erred in law by placing the onus on the defence to establish a section 8 Charter breach for a warrantless search.

The appeal judge concluded that the police violated the appellant's section 8 rights by seizing his wallet to obtain identification for a CPIC check during an investigative detention.

Applying section 24(2) of the Charter, the court excluded the identity evidence, allowed the appeal, set aside the convictions, and entered acquittals.

The appellant, C.G., appealed his convictions for sexual assault, sexual interference, invitation to sexual touching, and breach of recognizance.

The Court of Appeal found that the trial judge made three fundamental errors: an inadequate analysis of "inadvertent collusion" concerning defence witnesses, a failure to analyze crucial competing exculpatory evidence (e.g., creaky floors, light sleepers, appellant's work schedule), and an improper application of the principles from R. v. W. (D.) by not explaining why the exculpatory evidence failed to raise a reasonable doubt.

The trial judge also erred by relying on a stereotype about sex offenders taking "incredible risks" without proper evidentiary foundation.

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

The appellant, M.R., appealed his conviction for sexual assault, arguing that the trial judge erred in assessing credibility and reliability, particularly concerning the DNA evidence, the complainant's level of intoxication, and the sufficiency of reasons.

He also alleged uneven scrutiny of the parties' evidence.

The Court of Appeal dismissed the appeal, finding that the trial judge's credibility and reliability assessments were well-grounded in the evidence and did not rely on speculation.

The court affirmed that the trial judge's reasons were sufficient and that the complainant's erratic post-assault behaviour was a reasonable inference of genuine traumatization, not cognitive impairment.

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 defendant was convicted of two counts of causing an accident resulting in bodily harm while having a blood alcohol concentration over 80.

The court considered sentencing principles, including denunciation and general deterrence, and the severe, life-changing injuries sustained by the two victims.

Despite mitigating factors such as genuine remorse and rehabilitation efforts, the court found that an intermittent sentence was insufficient.

The final sentence was 15 months incarceration, three years probation, and a three-year driving prohibition, aligning with the Crown's recommendation due to the judge's self-imposed restriction on exceeding the Crown's position without further submissions.

The appellant, M.J.H., appealed his conviction for sexual assault, arguing the trial judge failed to properly instruct the jury on the complainant's credibility, that the verdicts (guilty of sexual assault, not guilty of choking to overcome resistance) were inconsistent, and that the sexual assault verdict was unreasonable.

The Court of Appeal dismissed the appeal, finding the jury was adequately instructed on credibility, the verdicts were not inconsistent given the different elements of the offences, and the sexual assault conviction was supported by a reasonable view of the evidence.

Rima Mansour, a 51-year-old woman with no criminal record, sought a 90-day detention review after being detained on tertiary grounds for serious firearms importation and trafficking charges.

The court granted bail, finding that the COVID-19 pandemic constituted a material change in circumstances.

Despite the formidable Crown case and gravity of the offences, the applicant's vulnerability due to pre-existing health conditions, the risks of infection in a correctional facility, and the likely delay in trial proceedings outweighed the public interest in continued detention.

The proposed strict surety release plan was deemed sufficient to address secondary ground concerns.

The appellants, Jermaine Gager and Corey Leonard Smelie, appealed their murder convictions, with Mr. Smelie also seeking leave to appeal his sentence.

They raised several grounds, including errors in qualifying an expert witness on street gangs, inadequate jury instructions, erroneous dismissal of disclosure applications, inconsistent verdicts, and reasonable apprehension of bias by the trial judge.

The Court of Appeal dismissed all appeals, finding no reversible error in the trial judge's rulings or conduct, and affirmed the fitness of the sentence imposed on Mr. Smelie.

The appellant was convicted of drug offences arising from his participation in a conspiracy to import cocaine from Costa Rica to Toronto.

The conspiracy was thwarted and drugs were seized by Panamanian authorities.

The trial judge admitted laboratory evidence from Panamanian authorities obtained pursuant to a Mutual Legal Assistance Treaty request, which established that the seized substance was cocaine.

The appellant appealed, arguing that the trial judge misinterpreted section 36(1) of the Mutual Legal Assistance in Criminal Matters Act and that the provision was unconstitutional.

The Court of Appeal upheld the conviction, finding that section 36(1) properly permits the admission of foreign records containing hearsay and opinion evidence without requiring proof of necessity or threshold reliability, and declined to exercise its discretion to hear the constitutional challenge raised for the first time on appeal.

The applicant, charged with conspiracy to import and traffic firearms after 25 handguns were found in her vehicle's gas tank at a border crossing, sought a review of her detention order under ss. 520 and 525 of the Criminal Code.

She argued there were errors of law at the original bail hearing, a material change in circumstances including health issues, and presented a plan for house arrest.

The court dismissed the application, finding the Crown's case formidable and concluding that detention remained justified on the tertiary grounds to maintain confidence in the administration of justice given the gravity of the firearms offences.

The appellants were convicted by jury of aggravated assault following an attack on a victim in a parking lot in Barrie.

Both appellants conceded presence at the scene but disputed participation in the assault.

The appellants appealed on multiple grounds relating to jury instructions, including eyewitness identification evidence, aiding and abetting liability, jury questions, the definition of bodily harm, and self-defence.

The Court of Appeal found multiple errors in the trial judge's instructions, particularly regarding the inadequacy of the eyewitness identification caution given the specific frailties in the evidence, insufficient guidance on aiding and abetting, discouragement of jury questions, failure to define bodily harm, and reversal of the burden of proof on self-defence.

The court allowed the appeals and ordered a new trial.

The appellant appealed his conviction for sexual assault, arguing that the loss of a video recording of the complainant's statement violated his fair trial rights.

The Court of Appeal held that the trial judge's finding of no unacceptable negligence was reasonable and that the loss of the recording was not so prejudicial as to impair the appellant's fair trial rights.

The court found that contemporaneous and detailed police notes provided a sufficient substitute for the lost recording, and that the defence failed to demonstrate actual prejudice.