Frank Au

The appellant, Jerome Derby, appealed his global sentence for firearm-related offences, including discharge of a firearm with intent to endanger life and possession of a firearm while prohibited.

He argued that the trial judge erred by imposing a consecutive sentence for possession while prohibited, having already considered this as an aggravating factor, which constituted double counting.

The Court of Appeal agreed, finding that the approach was erroneous and constituted double counting, and therefore allowed the appeal in part.

This is an appeal from a sentence of 22 years, less presentence custody, imposed for grave crimes.

The appellant also sought to set aside a Sex Offender Information Registration Act (SOIRA) order.

The Court of Appeal found the trial judge's reasons to be error-free and the sentence fit.

The court also determined that the application to set aside the SOIRA order was not properly before it, directing the appellant to the Superior Court of Justice for a Canadian Charter of Rights and Freedoms remedy.

The appeal was dismissed.

The appellant was convicted of several sexual offences.

During his trial, he was briefly excluded from the courtroom while counsel discussed the admissibility of questions about his prior sexual history.

The trial judge ruled in the appellant's favour, prohibiting the questions.

On appeal, the appellant argued this exclusion violated his right to be present at trial under s. 650(1) of the Criminal Code and ss. 7 and 11(d) of the Charter.

The Court of Appeal found a breach of s. 650(1) but applied the curative proviso under s. 686(1)(b)(iv) of the Criminal Code, concluding the appellant suffered no prejudice due to the brevity of the exclusion and the favourable ruling.

The court declined to apply a Charter analysis, finding the Criminal Code framework sufficient for non-egregious breaches.

The applicant brought an application for expanded access to the digital recording of his trial.

The court conducted a scheduling hearing and set the application to be heard on December 21, 2021, along with deadlines for written submissions.

The Crown appealed the acquittal of the respondent for second-degree murder, arguing the trial judge made errors of law in evaluating evidence, specifically regarding witness testimony, a formal admission about a substance trail, and speculation about blood evidence.

The Court of Appeal dismissed the appeal, finding no legal errors in the trial judge's analysis and reiterating that appellate review on a Crown appeal is limited to questions of law, not the reasonableness of an acquittal or reweighing of evidence.

The appellant appealed his conviction for first-degree murder, arguing the trial judge erred by refusing to grant an adjournment to retain new counsel after he discharged his trial lawyer mid-trial, and that the Crown's cross-examination and closing address rendered the trial unfair.

The Court of Appeal dismissed the appeal, finding the trial judge properly exercised her discretion to refuse a lengthy adjournment, as the discharge was an attempt to derail the trial, and the appointment of amicus curiae ensured trial fairness.

The Court also held that while some of the Crown's conduct was improper, the trial judge's corrective instructions neutralized any prejudice.

The appellant appealed his convictions for firearm-related offences (robbery, aggravated assault, prohibited possession) and sought leave to appeal his 9-year sentence.

The conviction appeal argued that the trial judge erred by not conducting a fulsome post-verdict inquiry into a juror's comments, leading to a reasonable apprehension of bias.

The Court of Appeal dismissed the conviction appeal, finding no error in the trial judge's determination that the record was sufficient and that the strong presumption of juror impartiality had not been rebutted.

The sentence appeal argued that the 9-year sentence was unfit and disproportionate to co-accused sentences.

The Court granted leave to appeal sentence but dismissed the appeal, finding the sentence fit given the seriousness of the home invasion, the appellant's role (shooting the victim, using a handgun, breach of prohibition), and the justified distinctions from co-accused who pleaded guilty and had lesser roles.

The appellant was convicted of second-degree murder following a home invasion and robbery where a co-perpetrator shot and killed the victim.

The appellant appealed his conviction, arguing the trial judge erred in instructing the jury on post-offence conduct, circumstantial evidence, and by failing to answer a withdrawn jury question regarding the mens rea for murder.

The Court of Appeal dismissed the appeal, finding no error in the jury instructions and concluding the trial judge appropriately accepted the jury's decision to withdraw their question after they resolved it themselves.

The appellant, Thanh Tung Phan, appealed his conviction for first-degree murder.

The appeal raised two main grounds: an alleged error in the disposition of a Garofoli application concerning the judicial authorization for surveillance and tracking, and an error in admitting evidence of a history of violence between rival gangs (Chin Pac and Asian Assassinz) to establish motive.

The Court of Appeal found no error in the Garofoli ruling, concluding that the authorizing justice had reasonable and probable grounds even after excising inaccurate information from the Information to Obtain (ITO).

The court also found no error in admitting the gang evidence, determining its probative value for narrative, animus, and motive outweighed its prejudicial effect, especially given the trial judge's careful instructions and the manner of admission.

The appellant was convicted by jury of six sexual offences involving two young female relatives.

On appeal, the appellant raised three grounds: (1) the admission of evidence across counts as similar fact evidence and the jury instruction on its use; (2) the trial judge's ruling preventing the appellant from referring to documents while testifying; and (3) the trial judge's inadvertent references to the appellant as "Mr. Guilty" during the jury charge.

The Court of Appeal dismissed all grounds of appeal, finding the similar fact evidence was properly admissible, the aide mémoire ruling was discretionary and reasonable, and the inadvertent misstatements were promptly corrected and caused no prejudice.

The appellant appealed her convictions for two counts of robbery with a firearm.

The appeal concerned the validity of "tower dump" production orders for cell phone records obtained from two cell phone towers near the site of a robbery.

The appellant challenged the production orders under section 8 of the Canadian Charter of Rights and Freedoms, arguing that an Information to Obtain contained material inaccuracies regarding witness statements about cell phone use by one of the perpetrators.

The motion judge denied the appellant's request for leave to cross-examine the affiant and dismissed the Charter application, finding that even after excising the inaccuracies, sufficient grounds remained to support the production orders.

The Court of Appeal upheld the motion judge's decision, finding no error in the application of the test for leave to cross-examine and no misapprehension of the evidence regarding the inference of cell phone use during the robbery.

The appellant appealed his convictions for luring, sexual exploitation, and making, possessing and accessing child pornography involving two complainants, as well as his 20-month custodial sentence.

The appeal was allowed on the basis that the application judge erred in dismissing the appellant's Charter s. 11(b) application regarding unreasonable delay.

The Court of Appeal found that the delay of approximately 43 months from charge to trial exceeded both the Jordan presumptive ceiling of 30 months and the Morin guideline of 14-18 months.

The court identified errors in the application judge's analysis, including: (1) incorrectly characterizing the adjournment of the exit judicial pre-trial as a discrete exceptional event; (2) inflating the neutral intake period for Crown disclosure to five months when only 2.5 months was appropriate; (3) treating institutional delay as neutral rather than attributable to the Crown; and (4) failing to consider inferred prejudice from the length of delay.

The court concluded that transitional exceptional circumstances did not justify the delay, and the proceedings were stayed.

The appellant appealed his sentence for manslaughter imposed following a guilty plea.

The appellant did not challenge the length of the sentence itself but argued that the trial judge erred in calculating the credit ratio for time spent in custody in the penitentiary following his initial murder conviction, before this court allowed his appeal and ordered a new trial.

The appellant sought 1.5:1 credit for this time.

The Court of Appeal found that even if an error occurred in the credit calculation, it did not impact the fitness of the sentence ultimately imposed.

The sentencing judge had determined that a net additional sentence of one year was appropriate to reflect proportionality and applicable sentencing objectives.

The appeal was dismissed.

An applicant convicted of first-degree murder sought bail pending appeal.

The applicant had been convicted along with a co-accused following a jury trial.

The Crown's case was entirely circumstantial, relying on email correspondence and financial motive.

The applicant had been discharged at the preliminary inquiry but was subsequently tried following a direct indictment.

The applicant proposed a stringent release plan including a $500,000 recognizance with three sureties, house arrest, and GPS electronic monitoring.

The court granted bail pending appeal, finding that while the offence was serious, the applicant had demonstrated flawless bail compliance over three and a half years, there were no flight risks given the enhanced supervision plan, and the grounds of appeal regarding the reasonableness of the verdict clearly surpassed the "not frivolous" threshold.

A 16-year-old appellant was convicted of first-degree murder in the death of his 14-year-old cousin.

The appellant appealed his conviction, arguing that his statements to police were admitted in breach of section 146(2) of the Youth Criminal Justice Act (YCJA) and section 10(b) of the Canadian Charter of Rights and Freedoms.

The trial judge conducted a voir dire and admitted all statements.

The Court of Appeal found that the trial judge made two fatal legal errors: (1) he improperly shifted the burden of proof regarding detention from the Crown to the appellant, and (2) he erred in concluding that section 146(2) protections did not apply because the appellant's detention related to a different offence (obstruction of police) than the ultimate charge (first-degree murder).

The Court of Appeal held that the appellant was psychologically detained and entitled to the protections of section 146(2), which were not provided.

The statements were therefore improperly admitted, and the conviction was set aside with a new trial ordered.

The appellant, a police officer, appealed his conviction for dangerous driving causing bodily harm.

While responding to an emergency at high speed, he drove through a small town at 178 kmph in a 50 kmph zone, passed a construction zone and school, and collided with another vehicle.

Trial counsel conceded the actus reus and causation.

The central issue was whether the Crown proved beyond a reasonable doubt that the driving constituted a marked departure from the standard of care of a reasonable person in the appellant's circumstances.

The trial judge found it did, and the Court of Appeal upheld the conviction.

The appellant also sought leave to appeal sentence but was unsuccessful.

The appellant appealed both his conviction for home invasion entered on September 26, 2016 and his sentence imposed on February 13, 2017.

The Court of Appeal upheld both the conviction and sentence.

The court found that the trial judge's identification conclusion was amply supported by evidence, rejected claims of reasonable apprehension of bias based on the trial judge's prior representation of the appellant six years earlier, and determined that the sentence imposed was fit and, if anything, lenient for a home invasion offense.

The appellant was convicted of aggravated assault following a trial before a judge sitting without a jury.

The trial judge found that the appellant, a bar security head, had smashed the complainant's head against glass doors and punched him in the face, causing lacerations including one that severed the complainant's tear duct.

The appellant appealed his conviction, arguing the trial judge misapprehended evidence regarding causation.

The Crown appealed the sentence of suspended passing and three-year probation.

The Court of Appeal found the trial judge made critical errors regarding the essential link between the appellant's assault and the wounding injury, but determined the appellant was properly found guilty of the included offence of assault simpliciter.

The court substituted the verdict accordingly and affirmed the sentence.

The appellants Collins and Newton were convicted of murder and attempted murder following a five-week trial before a judge and jury.

Collins was found guilty of first degree murder and attempted murder; Newton was acquitted of first degree murder but convicted of second degree murder and attempted murder.

Both appealed their convictions.

The Court of Appeal found that the trial judge erred by failing to relate the evidence to the legal issues the jury had to decide, instead presenting evidence in a witness-by-witness format.

This error deprived the appellants of a fair trial.

The court rejected Newton's argument that his verdicts were unreasonable.

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

The appellant was convicted of human trafficking, receipt of material benefits, withholding documents to facilitate trafficking, assault, uttering a threat, and breach of undertaking.

He received a global sentence of five years on the trafficking charge with concurrent sentences on other offences, reduced by 757 days for pre-sentence custody.

On appeal, the conviction was upheld but the sentence was modified.

The court found the trial judge erred in applying different credit calculations for pre-conviction versus post-conviction custody, as the conditions in detention centres were identical.

The court granted leave to appeal sentence and allowed the appeal, crediting the appellant with 1033 days of pre-sentence custody, resulting in a remaining custodial sentence of two years and two months.