Erin Dann

The Director of Public Prosecutions sought leave to intervene in an appeal by the provincial Crown of an Ontario Review Board decision granting an absolute discharge to the respondent, who was previously found NCR for a national security offence.

The motion judge dismissed the intervention application, finding the DPP's proposed factum argued the factual merits rather than confining itself to legal issues, and that allowing the intervention would prejudice the respondent.

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.

In a conviction appeal, the appellant sought production of a post-Hason Crown communication, plus a list of cases reviewed by the prosecution service concerning a forensic psychiatric expert and reasons for selection.

The court applied the two-step appellate production framework requiring a reasonable possibility the materials could assist a fresh-evidence motion and a reasonable possibility of eventual admissibility as fresh evidence.

It held the request was speculative, case-specific concerns from prior proceedings did not establish relevance in this record, and the requested internal review rationale was privileged.

The court further held that any standalone direction, divorced from justification, would not satisfy the relevance threshold.

The production motion was dismissed.

The appellant appealed his second-degree murder conviction, arguing the trial judge erred in finding a breach of the rule in Browne v. Dunn and in giving a restrictive corrective instruction.

The trial judge had instructed the jury that they could not find a key Crown witness fabricated her evidence about the appellant's confession because defence counsel did not explicitly put that suggestion to her in cross-examination.

The Court of Appeal allowed the appeal, finding no breach of the rule occurred as the tenor of the cross-examination made the defence's position clear.

Furthermore, the corrective instruction erroneously usurped the jury's function by prohibiting them from considering whether the witness fabricated the confession.

The curative proviso was not applied, and a new trial was ordered.

The appellant appealed his conviction for possession of fentanyl for the purpose of trafficking.

He challenged the trial judge's dismissal of his Charter application seeking to exclude evidence obtained from a search of his person and vehicle.

The appellant argued that the police used a false pretext of a seatbelt violation under the Highway Traffic Act to arbitrarily detain him and search for drugs in violation of sections 8 and 9 of the Charter.

The Court of Appeal upheld the trial judge's findings, concluding that the initial stop was lawful based on an actual seatbelt violation, and that the subsequent search was authorized under the Cannabis Control Act based on reasonable grounds to believe cannabis was in the vehicle.

The appeal was dismissed.

The appellant was convicted after a judge-alone trial of sexual assault contrary to s. 271 of the Criminal Code and sentenced to 38 months imprisonment.

On appeal, the appellant challenged the conviction on the basis that the trial judge convicted him on a theory different from that advanced by the Crown, denying him the right to make full answer and defence.

The appellant also sought leave to appeal the sentence, arguing that the trial judge erred in principle by treating his failure to address mental health issues as an aggravating factor and by failing to apply the totality principle.

The Court of Appeal dismissed the conviction appeal, finding that the trial judge's reasons addressed the case as presented by the Crown and that the conviction was based on the Crown's theory of sexual assault based on absence of subjective consent.

The Court granted leave to appeal the sentence but dismissed the sentence appeal, finding that while the trial judge made erroneous references, they had no material impact on the sentence imposed, which fell within the appropriate range for this type of offence.

Three appellants were convicted of first-degree murder in the 2018 shooting death of Nnamdi Ogba.

The appellants appealed on seven grounds, including challenges to jury instructions on modes of participation, admissibility of expert gang evidence, after-the-fact conduct evidence, firearm videos, W.(D.) instructions, Browne v. Dunn breaches, and jury roll compilation errors.

The Court of Appeal found that the jury instructions on modes of participation under sections 21(1)(b) and 21(2) of the Criminal Code were deficient and that there was no air of reality to section 21(2) liability.

The court allowed the appeals, set aside the convictions, and ordered a new trial.

The court upheld the admissibility of expert gang evidence and other evidentiary rulings.

In a sentencing appeal arising from guilty pleas to sexual assault, uttering threats, and unlawful confinement, the Court addressed whether anticipated completion time for institutional programming may be considered in fixing a fit sentence and when delay-related conduct can justify denying enhanced pre-sentence credit under s. 719(3.1) of the Criminal Code.

The Court held that programming and treatment timelines may be considered where supported by an adequate evidentiary record, provided the sentence remains proportionate to offence gravity and moral blameworthiness.

The Court further held that delay alone is insufficient to constitute wrongful conduct; conduct must be intended to frustrate the proper operation of the criminal justice system.

Applying the sentencing standard of review, the custodial term was upheld as fit, but the denial of enhanced credit for confinement in a mental health facility was varied because the offender’s delay-related conduct was materially linked to mental and cognitive impairment.

The appeal was allowed in part with additional enhanced credit awarded.

The Court of Appeal for Ontario allowed the conviction appeals of William McDonald (second-degree murder) and Thomas Lako (manslaughter) arising from the 2012 shooting death of Jonathan Zak.

The court found that the trial judge erred in admitting a hearsay police statement from a deceased witness for the truth of its contents and in failing to adequately caution the jury regarding discreditable conduct evidence.

The court ordered new trials for both appellants.

The appellant, Charles Kennedy, appealed his conviction for unlawful confinement, assault causing bodily harm, and sexual assault.

He sought the appointment of counsel under section 684 of the Criminal Code.

The Court of Appeal reviewed the trial judge’s findings and the legal standards for appointing counsel, ultimately dismissing the application on the basis that the grounds of appeal did not surpass the "arguability" threshold and were not legally complex enough to require appointed counsel.

The appellant, David Bynoe, appealed his sentence for firearms offences, assault, and uttering threats.

The Court of Appeal for Ontario granted leave to appeal but dismissed the sentence appeal, finding no error in the trial judge’s reasoning or exercise of discretion.

The court addressed arguments regarding the use of lack of acceptance of responsibility as an aggravating factor, the failure to allow the appellant to speak before sentencing, and the reasonableness of the custodial sentence for assault and uttering threats.

The court found that while the appellant should have been allowed to address the court, there was no basis to conclude this would have affected the sentence.

The accused appealed a finding of not criminally responsible on account of mental disorder (NCRMD), arguing procedural unfairness and insufficient reasons from the trial judge.

The Crown conceded the trial judge's reasons were inadequate.

The Court of Appeal allowed the appeal, set aside the NCRMD finding, and ordered a new trial, emphasizing the critical importance of procedural fairness in NCRMD cases due to the significant deprivations of liberty involved.

The appellant, J.G., appealed verdicts of not criminally responsible (NCR) on account of mental disorder, entered in 2005 when he was 16.

The appeal, consented to by the Crown, was based on fresh evidence indicating the appellant, who has significant intellectual disabilities, did not understand the consequences of an NCR verdict at the time.

The Court of Appeal found the process leading to the NCR findings unfair and a miscarriage of justice.

The court allowed the appeal, set aside the NCR verdicts, substituted findings of guilt for the original offences, and imposed a concurrent sentence of one day, with execution stayed.

The accused, Benjamin Shearer, pleaded guilty to trafficking in fentanyl, possession of fentanyl, and carrying a concealed weapon.

The Crown sought a custodial sentence of two years less a day, while the defence proposed an 18-month conditional sentence.

The court considered the seriousness of fentanyl trafficking and the opioid epidemic, along with the accused's background as a youthful first offender with a long-standing opioid addiction and significant rehabilitative efforts since his arrest.

The court also ruled on the admissibility and necessary redactions of community impact statements.

Applying the principles of proportionality, denunciation, deterrence, and rehabilitation, the court imposed a 20-month conditional sentence for trafficking in fentanyl, a time-served sentence for simple possession, and a concurrent 6-month conditional sentence for carrying a concealed weapon, followed by two years of probation.

The appellant appealed his conviction for sexual assault, arguing the trial judge misapplied the W.(D.) analysis, misapprehended his evidence, and erred in assessing the complainant's reliability given her intoxication and memory gaps.

The Superior Court of Justice dismissed the appeal, finding that the trial judge properly applied the credibility assessment principles, correctly understood the appellant's evidence as untruthful rather than a mistaken belief, and appropriately evaluated the complainant's reliability against the totality of the evidence.

Police responding to a domestic violence call arrested the accused in the basement of his home and, incident to that arrest, conducted a visual clearing search of an adjoining basement living room, discovering methamphetamine in plain view.

The majority held that the common law standard for search incident to arrest must be modified where the area searched is outside the arrested person's physical control at the time of arrest: the police must have reasonable suspicion of a safety risk, and the search must be conducted in a manner tailored to the heightened privacy interests in a home.

Applying that standard, the majority found no breach of s. 8 of the Charter and dismissed the appeal.

The dissent (Karakatsanis, Brown and Martin JJ.) would have required reasonable suspicion of an imminent threat and found the standard unmet, favouring exclusion of the evidence under s. 24(2).

Côté J. agreed with the dissent on the standard and the s. 8 breach but would not exclude the evidence under s. 24(2).

The appellant, found not criminally responsible by reason of mental disorder, appealed the Ontario Review Board's decision to continue a conditional discharge.

The appellant argued that the Board's conclusion that he remained a significant threat to public safety lacked evidentiary support, particularly concerning the link between substance use and mental decompensation or medication non-compliance.

The Court of Appeal found that the Board's decision was reasonable and supported by the expert opinion of the appellant's treatment team, which was based on years of experience.

The appeal was dismissed.

Sentencing decision following convictions for attempted procurement of a child for sexual services, child luring, invitation to sexual touching, and possession of child pornography for the purpose of distribution arising from online communications with a 15-year-old complainant.

The court applied the rule against multiple convictions to stay overlapping possession and sexually explicit material counts, and held the applicable one-year mandatory minimum sentences unconstitutional and inapplicable, relying on prior appellate and trial authorities and principles of judicial comity.

In fixing sentence, the court emphasized denunciation and deterrence for sexual offences against children, weighed significant aggravating factors including grooming, graphic communications, actual harm, and the complainant’s age, and gave meaningful mitigation for the offender’s failed attempt to procure, collateral immigration consequences, pandemic custody conditions, and more than four years on stringent bail without internet access.

A global sentence of three and a half years’ imprisonment was imposed with ancillary SOIRA, DNA, no-contact, employment, and tailored internet conditions.

The accused was charged with several offences, including sexual assault and child luring.

During the investigation, police impersonated the 15-year-old complainant using her phone to communicate with the accused and capture his messages without a warrant.

Upon his arrest, police conducted a warrantless search of his cell phone, taking screenshots of all messages across multiple applications.

The court found that the accused had a reasonable expectation of privacy in his messages to the complainant, and that the warrantless undercover operation violated his s. 8 Charter rights.

The court also found the search of his phone incident to arrest was overly broad and violated s. 8.

Applying s. 24(2) of the Charter, the court excluded the evidence obtained from the undercover operation and the search incident to arrest.

The appellant appealed his sentence of two years less a day for drug trafficking and related offences.

The Court of Appeal found the trial judge erred in principle by treating the appellant's conduct of his defence as an aggravating factor and by failing to consider collateral immigration consequences.

Admitting fresh evidence of the appellant's acceptance into a residential treatment program and considering his severe PTSD from being a child soldier in Sierra Leone, the Court allowed the appeal and substituted a conditional sentence of two years less a day.