Etai Hilzenrat

The appellant was convicted of five counts of possession of a controlled substance for the purpose of trafficking (fentanyl, morphine, oxycodone, hydromorphone, and methylphenidate) and one count of simple possession (buprenorphine), and sentenced to three years' imprisonment.

On appeal, she raised five grounds including errors in the directed verdict ruling, unreasonable verdict, refusal to consider sole possession by a co-accused, errors in the Charter s. 10(b) analysis, and fitness of sentence.

The Court of Appeal assumed without deciding that additional right-to-counsel breaches occurred but found the s. 24(2) balancing under Grant did not support exclusion, noting no systemic or deliberate disregard for Charter rights and a lack of causal connection between the breaches and the discovery of evidence.

The remaining conviction grounds were dismissed as attempts to parse the trial judge's reasons in search of error.

The conviction and sentence appeals were both dismissed.

The appellants, Floriano Sylvester Daponte and Vivian Lee Hamilton, appealed their joint convictions for drug trafficking and possession of proceeds of crime.

The convictions stemmed from a search of their farm property where a large quantity of drugs and cash were found.

The appellants argued the trial judge erred in assessing an alternative suspect (Mr. Colpaert), finding his access to the residence speculative, and improperly using their failure to testify.

The Court of Appeal dismissed Mr. Daponte's appeal, finding the evidence against him cogent and the trial judge's conclusions reasonable.

However, Ms. Hamilton's appeal was allowed, and acquittals were substituted, as there was insufficient evidence to infer her knowledge or control of the buried drugs, and her connection to the drive shed was tenuous.

The Crown sought to introduce prior discreditable conduct, specifically youth sexual assault allegations, against the accused, J.M., at trial.

The application was based on the allegations being relevant to proving the actus reus by establishing motive and a pattern of behaviour, including "grooming." The court dismissed the application, finding that the prejudicial effect of the dated and inflammatory youth allegations, particularly given a ten-year break in contact between the parties, outweighed their probative value.

The court emphasized the risk of moral and reasoning prejudice, including a "trial within a trial."

The appellant appealed her conviction for importing opium and sought leave to appeal her sentence.

The conviction appeal was based on alleged errors in jury instructions regarding the weight of opium evidence and the W.(D.) instruction.

The sentence appeal argued the amount of opium was not "substantial" and that a conditional sentence was appropriate.

The Court of Appeal dismissed both the conviction and sentence appeals, finding no errors in the trial judge's handling of evidence or jury instructions, and upholding the sentence as fit.

The Crown appealed a stay of proceedings granted to the respondents, Floriano Daponte and Vivian Hamilton, who were charged with drug and weapon offences.

The trial judge had found a s. 11(b) Charter right infringement based on a 30.5-month net delay, exceeding the 30-month Jordan ceiling.

The Crown argued that a 3-month delay caused by the respondents' certiorari application should have been deemed an exceptional circumstance and deducted, bringing the delay below the ceiling.

The Court of Appeal agreed, finding the trial judge erred by focusing on the Crown's position on only one count of the certiorari application.

With the deduction, the delay was 27.5 months, placing the onus on the respondents to show unreasonable delay.

The Court found the respondents failed to demonstrate that the case "markedly exceeded its reasonable time requirements" despite their diligence and some Crown disclosure issues and local resource shortages.

The appeal was allowed, and the stay set aside.

The defendants were jointly charged with trafficking in various drugs and possession of proceeds of crime after police executed a search warrant at their rural hobby farm.

Police found over $800,000 worth of drugs and $82,000 in cash buried in a drive shed, along with packaging materials and scales in the main residence.

The court found that the circumstantial evidence, including matching containers found in the residence and the drive shed, established beyond a reasonable doubt that the defendants had constructive and joint possession of the drugs and currency.

The defendants were found guilty of possession for the purpose of trafficking, simple possession, and possession of proceeds of crime.

The appellant appealed her conviction for three thefts at Shoppers Drug Mart and her sentence of six months imprisonment plus two years probation.

The trial judge had found her guilty based on witness identification and surveillance video evidence, and not guilty of two thefts from No Frills.

The appellant argued the trial judge provided inadequate reasons regarding identification, the commission of the offences, and her liability as a party to the thefts.

The Court of Appeal dismissed the conviction appeal, finding the trial judge's brief reasons were responsive to the issues raised and provided a sufficient basis for appellate review.

The court granted leave to appeal sentence and struck the victim surcharge requirement following the Supreme Court's decision in R. v. Boudreault, but otherwise upheld the sentence given the appellant's extensive criminal history.

The Crown applied under s. 714.2 of the Criminal Code to adduce evidence from a witness, Omar Ahmed, via video link, as he had been deported to Somalia after the first trial.

The Defence opposed, arguing that the witness should testify in person and that cross-examination via video link would be hampered.

The court ruled that s. 714.2 is mandatory and does not require all efforts to secure in-person testimony.

The Defence failed to satisfy the court that video link testimony would be contrary to fundamental justice principles, as video technology is regularly used and does not deprive an accused of a fair trial or the opportunity to confront a witness.

The application was granted, with conditions for video quality and process.

During a homicide trial, the Crown applied to have the jury instructed on party liability for murder under s. 21(2) of the Criminal Code, arguing that the accused could be found guilty as an aider or abettor even if he was not the principal shooter.

The trial judge dismissed the application, finding that the evidence only supported the theory that the accused was the principal.

There was no evidence that the accused provided actual assistance or intended to help or encourage someone else to commit the offence.

The Crown applied to admit the hearsay statements and prior trial testimony of a witness, Ali Abdul-Hussein, who failed to appear for the accused's murder trial.

The witness had previously given a sworn video statement implicating the accused but recanted at the first trial, claiming he lied to secure a plea deal.

The court dismissed the application, finding that the evidence was inadmissible under s. 715(1) of the Criminal Code because the accused was denied a full opportunity to cross-examine the witness at the first trial.

Furthermore, the statements did not meet the threshold reliability requirement under the principled exception to the hearsay rule due to the witness's history of lying and the lack of independent corroborating evidence.

The Crown brought an application to admit the videotaped police statement of an unavailable witness under the principled exception to the hearsay rule in a first-degree murder re-trial.

The witness, who had been subpoenaed, failed to appear.

The court found that while the statement met the necessity criterion and threshold reliability through corroborating evidence, its admission would severely impact trial fairness.

The statement lacked spontaneity, having been guided by police theories, and the inability of the defence to cross-examine the witness rendered the statement's prejudicial effect disproportionate to its probative value.

The application was dismissed.

The Crown sought to admit hearsay statements of a deported witness, Omar Ahmed, and his prior transcript testimony in a re-trial for first-degree murder.

The Respondent objected on grounds of necessity and reliability.

The court found that while necessity was met due to Ahmed's deportation, threshold reliability was not established due to his criminal background, inconsistencies in prior testimony, and the Respondent's lack of full opportunity to cross-examine him in a fair trial setting.

The court also exercised its residual discretion to exclude the evidence to protect the Respondent's constitutional right to a fair trial, given the prior conviction was overturned due to a miscarriage of justice.

The applicant, charged with first-degree murder, sought to exclude 104 private communications intercepted under six wiretap authorizations, arguing violations of section 8 and 24(2) of the Charter.

The applicant alleged that the affiant failed to make full, frank, and fair disclosure in the Information to Obtain (ITO) for the first authorization, leading to invalidity of all subsequent authorizations.

The court reviewed the ITO for probable cause and investigative necessity, finding that despite some errors and omissions by the affiant, they were not intentional or grossly negligent and did not seriously distort the assessment of witness credibility.

The court concluded that the issuing justice had a sufficient basis to grant the authorizations, as probable cause and investigative necessity were established.

The motion to exclude the wiretap evidence was dismissed.

The Applicant, charged with first-degree murder, sought to exclude call detail records obtained via search warrants, arguing violations of his s. 8 Charter rights.

The Applicant contended that the Informations to Obtain (ITOs) contained inaccuracies, lacked reasonable grounds to believe the records would afford evidence, and that police failed to file Reports to Justice as required by s. 489.1 of the Criminal Code.

The court found that while there were minor inaccuracies in the ITOs, they were made in good faith and, once excised, sufficient grounds remained for the warrants.

The court also found that the police's failure to file Reports to Justice constituted a s. 8 Charter breach but, following established jurisprudence, determined that this technical breach did not warrant the exclusion of evidence under s. 24(2) of the Charter, especially given the serious nature of the charge.

The application to exclude evidence was dismissed.

This decision addresses a voir dire application in a murder trial to determine the voluntariness and admissibility of three statements made by the accused to police.

The court found the August 22, 2006 telephone statement and the November 8, 2006 video statement to be voluntary and admissible.

Portions of the November 8, 2006 surreptitiously audio-recorded statement were deemed admissible, specifically those relating to the murder investigation, while police opinions and commentary on unrelated criminal investigations were excluded due to prejudicial effect outweighing probative value.

The court rejected arguments that the accused was induced, misled about his status or the use of the interview, or that the statements' prejudicial effect outweighed their probative value.

An extradition judge considered whether the statutory test for committal under s. 29(1)(a) of the Extradition Act was met for a person sought by the United States on drug conspiracy charges.

The requesting state relied on certified Records of the Case and supplementary records containing wiretap interceptions, evidence of large drug seizures in the United States, and a search of the respondent’s residence revealing significant cash proceeds.

The court applied the double criminality principle and the prima facie standard applicable at extradition hearings.

Finding sufficient admissible evidence that could justify committal for trial in Canada for conspiracy to traffic in Schedule I and II substances under the Controlled Drugs and Substances Act, and being satisfied as to identity, the court ordered committal to await surrender.

The appellant was convicted of drug trafficking and possessing proceeds of crime after the trial judge discharged two jurors during deliberations.

The jury had reported a stalemate, with ten voting to convict and two to acquit.

Following complaints from other jurors, the trial judge conducted extensive inquiries into the two dissenting jurors' conduct and ultimately discharged them.

The Court of Appeal held that the trial judge's inquiries improperly probed the content of the deliberations, undermining jury secrecy.

The discharge of the two holdout jurors created an appearance of unfairness, resulting in an unfair trial.

The convictions were set aside and a new trial was ordered.