Frank Au

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.

The appellant was convicted of aggravated assault after stabbing a neighbour during a physical altercation on her driveway.

The fight was instigated by the neighbours over noise from a leaf blower.

The appellant claimed she acted in self-defence to protect her husband, who was involved in the melee.

The trial judge rejected the self-defence claim, finding that the victim was not applying force or engaged with the husband at the moment of the stabbing.

The Court of Appeal dismissed the appeal, holding that the trial judge properly applied the law of self-defence and did not impermissibly weigh the appellant's response to a nicety.

The appellant sought leave to appeal a summary conviction appeal decision that set aside a stay of proceedings granted for a section 8 Charter breach.

The breach occurred when the appellant was videotaped using the toilet in a police holding cell.

The Court of Appeal denied leave to appeal, noting that the police force had since changed its policy to protect prisoner privacy, and a stay of proceedings is only appropriate in the clearest of cases.

The court found no clear error in the summary conviction appeal judge's decision and determined the issue no longer had significance to the administration of justice generally.

The appellant was convicted of possession of an imitation weapon for a purpose dangerous to the public peace and use of an imitation firearm while committing an indictable offence.

On appeal, the appellant argued that the weapons dangerous offence could not serve as the predicate offence for the use of an imitation firearm charge.

The Court of Appeal agreed, finding that the use of the imitation weapon did not facilitate the commission of the predicate offence, which was complete when the appellant took possession of the weapon with the requisite intent.

The conviction under s. 85(2) was set aside, but the appeal was otherwise dismissed.

The appellant appealed a disposition of the Ontario Review Board, arguing that the decision not to transfer him from a Medium Secure Unit to a General Unit was unreasonable and that the Board failed to recognize a treatment impasse.

The Court of Appeal dismissed the appeal, finding the Board's conclusions reasonable based on evidence that the appellant refused to cooperate with programs and continued to demonstrate delusions.

The Court noted the upcoming annual review would assess any progress or need for an independent assessment.

Five criminal appeals arising from a major gang investigation challenged informer-privilege procedures, wiretap authorizations, general warrants, covert searches, no-knock take-down warrants, a warrantless vehicle search, jury instructions, and expert opinion evidence.

The court held that an ex parte, in camera first-stage informer privilege hearing was proper, that Criminal Code ss. 186(1.1) and 487.01 were constitutionally valid, and that the wiretap authorizations and general warrants were lawfully issued and executed.

Although one warrantless vehicle search was conducted in an unreasonable manner and one aspect of the conspiracy jury charge was erroneous, the evidence was properly admitted under s. 24(2) and the charge error caused no substantial wrong.

All convictions were upheld and all appeals were dismissed.

The applicant, convicted of historical sexual assault against his daughters and sentenced to eight years' imprisonment, applied for bail pending appeal.

He argued his appeal had merit based on his hearing impairment preventing a fair trial and alleged collusion between the complainants.

The Court of Appeal dismissed the application, finding the grounds of appeal arguable but weak, and concluding that the public interest favoured the continued enforcement of the sentence.

The appellant appealed a jury conviction for first degree murder arising from the fatal stabbing of a teenager during a group robbery incident.

The principal issue was whether the evidence could support constructive first degree murder under s. 231(5)(e) of the Criminal Code on the basis of actual or attempted unlawful confinement, including events in a catwalk, the ensuing chase, and a bear hug immediately preceding the stabbing.

The court held that the evidence was capable of supporting at least attempted unlawful confinement, that the restraint was distinct from the killing, and that the jury charge disclosed no reversible error.

Additional complaints concerning jurisdiction, prior discreditable conduct, victim good character evidence, exculpatory instructions, and hearsay rulings were rejected.

The appeal was dismissed.

The appellant appealed his conviction for aggravated assault, arguing the trial judge erred by allowing part of the proceedings to be translated simultaneously rather than consecutively.

The Court of Appeal dismissed the appeal, finding the trial judge reasonably concluded the interpreter was competent to perform both simultaneous and consecutive interpretation, and that simultaneous interpretation met the constitutional requirement of contemporaneity.

The applicant sought an order directing a court reporter to produce appeal transcripts at the copy rate of $0.55 per page, rather than the original rate of $3.75 per page, because the transcripts had already been produced for the trial.

The court granted the motion, applying the Court Services Division policy that balances access to justice with fair compensation for court reporters, and ordered that the copy rate applies to previously transcribed portions.

The appellant, a property owner, confronted two trespassers poaching fish from his private pond.

He fired a shotgun and held one trespasser at gunpoint.

He was convicted of assault with a weapon and using a firearm while committing an indictable offence.

On appeal, he argued the trial judge erred in instructing the jury on the defence of property, that the Kienapple rule barred multiple convictions, and that the mandatory minimum one-year sentence for the firearm offence violated s. 12 of the Charter.

The Court of Appeal dismissed the appeal, finding no error in the jury charge, that Kienapple did not apply because the offences had distinguishing elements, and that the mandatory minimum sentence was not grossly disproportionate.

The appellant, convicted of second degree murder and other offences, applied for an order under s. 684 of the Criminal Code appointing counsel for his appeal.

The appellant was indigent and had been denied legal aid.

The court dismissed the application, finding that the appellant failed to establish any arguable grounds of appeal.

The evidence against the appellant at trial, including DNA and video surveillance, was overwhelming, and the proposed grounds regarding expert evidence, jury instructions, and the defence of provocation lacked merit.

The appellant sought appellate relief after a lower court refused to grant a declaration that the Crown has a general post-trial and post-appeal duty to preserve evidence for the lifetime of an offender convicted of a life-imprisonment indictable offence.

The application below had been grounded in the loss of autopsy photographs said to be potentially relevant to a miscarriage of justice review under s. 696.1 of the Criminal Code, but the appellant accepted on appeal that no Charter breach had been established from their loss.

The Court of Appeal held there was no basis to entertain the appeal because the appellant advanced a new declaratory theory not supported by the record and not adjudicated below.

The appeal was dismissed, with no costs.

The appellant appealed convictions for prolonged sexual abuse of his stepdaughter and appealed sentence, seeking to rely on fresh Gladue evidence.

The court held there was no reviewable error in the trial judge’s application of the credibility principles in W.D. and dismissed the conviction appeal.

Although the Crown consented to admission of the fresh Gladue report, the court found the appellant’s claim to Gladue consideration weak, the report speculative on causation, and the offences so serious that Aboriginal background did not materially affect sentence fitness.

Both conviction and sentence appeals were dismissed.

The Crown appealed the dismissal of its application for certiorari and mandamus after a preliminary inquiry judge discharged the respondents on first degree murder and committed them for second degree murder.

The Court of Appeal upheld the finding that there was no evidence of planning and deliberation.

However, the Court found the preliminary inquiry judge exceeded his jurisdiction by determining whether the victim was unlawfully confined to the degree required for constructive first degree murder under s. 231(5)(e), rather than leaving that question to the jury.

The appeal was allowed and the matter remitted to the preliminary inquiry judge.

In a criminal appeal concerning workplace computer privacy, the Court held that an employee may retain a reasonable, though diminished, expectation of privacy in personal information stored on an employer-issued laptop where personal use is permitted or reasonably expected.

The police breached section 8 by conducting warrantless searches of computer data received from a school board, because the employer's authority to search for workplace purposes did not transfer to police for criminal investigation.

The majority concluded exclusion under section 24(2) was not warranted after balancing police conduct, privacy impact, and trial truth-seeking interests.

The appeal was allowed and a new trial order remained in place.

A dissent would have excluded the evidence due to serious disregard of warrant requirements.

The applicant, convicted of first-degree murder in 1984, sought a declaration that section 7 of the Charter requires the Crown to preserve all Stinchcombe disclosure material for the lifetime of the offender.

She alleged her section 7 rights were violated because autopsy photographs from her trial were lost or destroyed.

The court dismissed the application, finding that even if a post-appeal duty to preserve evidence exists, the loss of the photographs was adequately explained given the passage of time and lack of retention policies in the 1980s.

Furthermore, the applicant suffered no prejudice as the photographs would not have assisted in demonstrating her innocence.