Eric S. Neubauer

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 sought to exclude his statement to police under s. 24(2) of the Charter, alleging a violation of his s. 10(b) right to counsel of choice.

Upon arrest, the applicant repeatedly requested to speak with a specific lawyer.

After learning the chosen lawyer was a civil litigator and unavailable until later that day, the police officer presented the applicant with the option to speak to duty counsel or another lawyer, without advising him of his right to wait a reasonable time for his counsel of choice.

The court found this constituted a breach of s. 10(b), as the police improperly steered the applicant away from his chosen counsel.

Applying the Grant framework, the court concluded the breach was serious and impacted the applicant's protected interests, warranting the exclusion of the statement.

The accused brought an application seeking increased legal aid funding for defence counsel to cover the full estimated budget for a constitutional challenge.

The court dismissed the application, finding that while the state has a constitutional obligation to ensure fair trials for indigent accused, the accused's right to a fair trial (not a perfect trial) was not imperiled by the shortfall of approximately $3,000 between the legal aid budget and the defence budget.

The court acknowledged the financial burden on defence counsel accepting legal aid certificates but held that absent evidence that no competent counsel would accept the certificate, the application must fail.

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 accused was charged with sexual assault and sought to raise the defence of extreme intoxication akin to automatism.

He brought an application seeking an order that s. 33.1 of the Criminal Code, which bars this defence for general intent offences involving violence, is of no force and effect.

The court held that it was bound by a prior Superior Court decision that had declared s. 33.1 unconstitutional pursuant to s. 52(1) of the Constitution Act.

In the alternative, the court found that s. 33.1 violates ss. 7 and 11(d) of the Charter and is not saved by s. 1.

The application was granted, allowing the accused to advance the defence at trial.

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 convictions for sexual assault and entering a dwelling house arising from an incident in which he entered a neighbour's apartment and engaged in non-consensual sexual touching.

The appeal alleged that the trial judge rejected the defence evidence based on speculation, applied uneven scrutiny to the complainant and the appellant, and misapprehended material evidence.

The court held that the trial judge's credibility analysis was grounded in the evidence and common sense, that no impermissible uneven scrutiny was demonstrated, and that the alleged errors were rejections of the defence evidence rather than material misapprehensions.

The appeal was dismissed.

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.

The appellant was convicted by jury of second degree murder in the shooting death of a drug dealer.

He appealed on two grounds: (1) that the trial judge erred in rejecting evidence regarding an alternate suspect, and (2) that the trial judge erred in instructing the jury on party liability through aiding.

The Court of Appeal upheld the conviction, finding that the trial judge properly excluded the alternate suspect evidence as lacking sufficient probative value, and that while references to aiding may have been unnecessary, the jury charge read as a whole would not have misled the jury regarding the requirement that the appellant be a principal or joint principal with the requisite mental state.

The defendant, a personal support worker, was tried on charges of assault and possession of methamphetamine arising from events on July 8, 2015.

The defendant was caring for an elderly, bedridden complainant when she went into medical distress and was hospitalized for three days.

The Crown alleged the defendant assaulted the complainant while intoxicated on illicit drugs.

The trial involved multiple adjournments and procedural complexities, including a commission evidence hearing and a Khelawan application regarding the complainant's videotaped statement.

The defendant was found guilty of both offences, though the assault conviction was limited to the act of aggressively pulling up the complainant's disposable underwear, rather than the alleged hair-pulling and punching.

A young person was charged with assault, criminal harassment, and sexual assault of a complainant.

The defence brought a motion under section 278 of the Criminal Code seeking production of diary excerpts from the complainant.

The Crown had mistakenly disclosed the diary excerpts to the defence.

The court applied the framework from R. v. Shearing to determine that once the information had already been produced, the section 278 regime for compelled production of third-party records was no longer applicable.

The court dismissed the section 278 application but ordered re-disclosure of the excerpts pursuant to the Crown's Stinchcombe disclosure obligations, without prejudice to the Crown raising admissibility objections based on probative value versus prejudicial effect.

Mandeep Punia was charged with second-degree murder and Skinder Punia with accessory after the fact to murder.

The jury found Mandeep guilty of manslaughter and Skinder guilty of accessory to manslaughter.

This decision provides the judge's reasons for several trial rulings: (a) the effect of a registrar's error during peremptory challenges in jury selection, which was deemed procedural and saved by s. 643(3) of the Criminal Code; (b) the refusal to issue a Vetrovec warning for a crucial Crown witness (Supinder Litt) due to her non-unsavoury character, though a strong caution was given; (c) the refusal to give a Bero instruction regarding incomplete police recordings, as no deliberate failure to preserve evidence was found, but the jury was instructed that reasonable doubt could arise from the absence of evidence; and (d) the decision to leave the defence of provocation with the jury for Mandeep, finding an "air of reality" to the subjective element based on the totality of evidence, despite the defence not actively advancing it.

In a murder trial, the Crown sought a ruling on the admissibility of a 911 call purportedly made by a central Crown witness.

The Crown argued the call was admissible as the best evidence of the event and to rebut recent fabrication.

The defence argued the recording lacked context and amounted to improper oath-helping.

The court ruled the 911 call-back was inadmissible at this stage, finding it devoid of material information and that its admission would serve solely to bolster the witness's credibility before it was attacked, thereby offending the rule against oath-helping.

The Crown brought a pre-trial motion to admit four out-of-court statements made by a witness, Kulwant Litt, for the truth of their contents under the principled exception to the hearsay rule (a K.G.B. application).

The witness, who is the father of one accused and father-in-law of the other, had previously confessed to his son (acting as a police agent) and the police about the accused's involvement in a murder and the subsequent disposal of the body, but later recanted.

The court found that necessity was established by the recantation and that threshold reliability was met through a combination of procedural reliability (the witness was available for cross-examination and the statements were recorded) and substantive reliability (confirmatory physical evidence and lack of motive to lie at the time).

The statements were ruled admissible.

During a jury trial for second-degree murder and accessory after the fact, the accused brought a motion seeking further disclosure relating to certified translations of Punjabi-language recordings and interviews relied upon by the Crown.

The defence identified material discrepancies between police, Crown-certified, and defence-certified translations of a key intercepted conversation and sought documentation relating to the commissioning, preparation, and certification of translations.

The court found that the requested materials had a sufficient nexus to the reliability of the translations relevant to a proposed s. 9 Canada Evidence Act application under R. v. K.G.B. The judge ordered limited disclosure of communications, requests, drafts, and information concerning the preparation and certification of specific transcripts prepared by a particular translator.

Broader disclosure requests were withdrawn without prejudice.

During a jury trial for second‑degree murder and accessory after the fact, the Crown sought a preliminary ruling regarding disputed Punjabi-to-English translations of intercepted communications.

The Crown requested that the court appoint a neutral third‑party translator to resolve discrepancies between the Crown and defence transcripts or, alternatively, determine that the Crown translation was accurate before addressing a defence disclosure application.

The court declined to order a court-appointed translator, emphasizing that calling its own witnesses should occur only rarely and with extreme caution.

Given material discrepancies between translations and incomplete argument on the defence disclosure application, the court directed that submissions continue on the defence request for further disclosure relating to the translations.