Frank Au

The appellant appealed his conviction for breaking and entering a dwelling house and committing a sexual assault.

He argued the trial judge erred in assessing credibility and reliability, and in appreciating the elements of the offence.

The Court of Appeal dismissed the appeal, finding no error in the trial judge's credibility assessments, which attract great deference, and concluding that the finding of no permission to enter supported the conviction.

The appellant was convicted of first degree murder after discharging his trial counsel near the end of the Crown's case.

The trial judge refused the appellant's request for a lengthy adjournment to retain his former preliminary inquiry counsel, finding the request was a sham designed to secure a 'mouthpiece' who would follow unethical instructions.

The trial judge then appointed the discharged trial counsel as amicus curiae.

On appeal, the Court of Appeal upheld the trial judge's discretionary decisions, finding no error in the refusal of the adjournment or the appointment of former counsel as amicus curiae.

In a Charter application brought by a person convicted of first degree murder seeking a declaration that evidence in homicide cases must be preserved for the lifetime of the offender, the respondent Attorney General moved to strike portions of affidavit evidence and parts of the amended notice of application and constitutional question.

The impugned affidavits contained second‑hand information about other alleged wrongful conviction investigations and lost evidence.

The court held the affidavit material could remain in the record for the limited purpose of illustrating the types of evidence that may be lost post‑conviction, but not to prove the truth of the allegations in those other cases.

However, paragraphs in the amended notice of application and notice of constitutional question relying on alleged loss of evidence in other cases were struck because the applicant lacked standing to advance constitutional claims based on those matters.

The motion was therefore granted in part.

The applicant sought to reopen his sentence appeal, which had been dismissed as abandoned in March 2010.

The Court of Appeal refused the application, noting that the applicant had abandoned the appeal with the benefit of legal advice and a considered basis at the time.

The court held that subsequent doubts did not overcome the interest in finality, and there was no miscarriage of justice.

The appellant appealed his conviction, arguing that the trial judge failed to consider the violation of his s. 10(b) Charter right to counsel when assessing whether his s. 8 right was violated during the collection of a DNA sample.

He also argued that the s. 10(b) breach tainted his consent to provide the sample.

The Court of Appeal dismissed the appeal, finding that the trial judge implicitly considered the s. 10(b) violation under s. 24(2).

Furthermore, the appellant's signed waiver and consent, obtained after a reiteration of his right to counsel, broke the connection between the earlier s. 10(b) breach and the giving of the DNA sample.

The appellant appealed his designation as a dangerous offender and the resulting indeterminate sentence.

He argued the sentencing judge misapprehended evidence regarding his willingness to take Lupron to control his risk of reoffending, and improperly admitted expert reply psychiatric evidence.

The Court of Appeal dismissed the appeal, finding the sentencing judge's factual conclusions were supported by the record and the expert evidence was admitted on consent.

The appellant appealed his convictions for sexual touching and sexual assault against his son.

At trial, the Crown was permitted to lead similar fact evidence of an incident that had been the subject of a prior trial ending in a 'judicial stay' when the complainant refused to testify.

The Court of Appeal held that the prior judicial stay was the functional equivalent of an acquittal, and therefore the doctrines of issue estoppel and abuse of process precluded the Crown from leading the evidence.

The appeal was allowed and a new trial ordered.

The appellant was convicted of possession of a stolen tractor found in a cube van in his backyard.

At trial, the judge excluded utterances made by a third party found at the scene, ruling them inadmissible hearsay.

On appeal, the Court of Appeal held that the trial judge erred because the statements were not adduced for the truth of their contents, but simply to prove they were made, which could support an alternative suspect theory.

The appeal was allowed, the conviction quashed, and a new trial ordered.

The appellant was convicted of second degree murder for the brutal beating death of his wife and sentenced to life imprisonment with 15 years of parole ineligibility.

On appeal, he argued the trial judge erred in admitting a statement to police, failing to correct Crown closing arguments, and failing to properly instruct the jury on post-offence conduct and mens rea.

He also appealed the 15-year parole ineligibility period.

The Court of Appeal dismissed both the conviction and sentence appeals, finding no reversible errors in the trial judge's rulings or jury instructions, and upholding the sentence due to the severe aggravating factors of the offence.

The appellant appealed his conviction, arguing the trial judge misapplied the burden of proof and applied different standards in assessing credibility.

The Court of Appeal dismissed the appeal, finding the trial judge's brief reasons adequately demonstrated the basis for conviction by relying on corroborating evidence, including a 'will' and sibling testimony, to believe the complainant and disbelieve the appellant.

The appellant pled guilty to breaching a court order and was sentenced to 18 months imprisonment.

The trial judge gave no credit for 42 days of pre-sentence custody.

On summary conviction appeal, the judge granted 1:1 credit but refused 2:1 credit, reasoning that parole eligibility could not be considered for pre-sentence custody if it could not be considered for post-sentence custody.

The Court of Appeal held this was an error in principle, as pre-sentence custody does not count towards parole eligibility.

The appeal was allowed, and the appellant was granted 2:1 credit, reducing his sentence to 15 months.

The appellant sought leave to appeal from a summary conviction appeal court decision, arguing the trial judge committed a Harper error by failing to consider evidence suggesting his daughter was present during the alleged offences.

The Court of Appeal denied leave, finding no compelling basis to conclude the daughter was present, as both the appellant and the complainant agreed she was not.

The court held that the trial judge's failure to review every piece of evidence pointing to a different conclusion did not constitute a reversible error.

The appellant appealed his conviction for having care and control of a motor vehicle while over the legal limit, arguing the trial judge erred by failing to put him to his election under s. 536(2) of the Criminal Code.

The Court of Appeal found that while the formal election was never put to the appellant, his counsel's statements and subsequent actions in proceeding to a provincial court trial constituted a clear and unequivocal waiver of the procedural safeguard.

The appeal was dismissed.

The appellant appealed his dangerous offender designation, arguing the trial judge erred in relying on and misapprehending Correctional Services of Canada reports, and sought to introduce fresh expert evidence.

The Court of Appeal found the trial judge properly considered the institutional history and did not treat the reports as expert opinions.

The court declined to admit the fresh evidence under the Palmer test, noting the appellant continued to pose a serious risk to public safety.

The appeal was dismissed.

The appellant appealed his convictions, arguing that statements he made to police should have been excluded under s. 24(2) of the Charter due to a s. 10(b) breach.

The Court of Appeal agreed that the statements were taken in violation of s. 10(b).

However, the Court held that even if the statements were excluded, the verdicts would necessarily have been the same, as the appellant was the sole occupant of his own car, and a loaded gun was found on the back seat underneath his coat.

Leave to appeal was granted, but the appeal was dismissed.

The appellants were convicted of numerous firearms offences after police seized over 200 firearms and 20,000 rounds of ammunition from their home.

They appealed their convictions, arguing that the firearms legislation violated their constitutional right to possess firearms for self-defence.

The Court of Appeal dismissed the conviction appeals, confirming that Canadians do not have a constitutional right to bear arms.

The court also dismissed the sentence appeal, upholding the mandatory minimum sentences and the 18-month global sentence as fit and not constituting cruel and unusual punishment.

The Crown appealed the acquittal of the respondent on charges of attempted murder, conspiracy to commit murder, and counselling to commit murder.

The trial judge had excluded intercepted private communications under s. 24(2) of the Charter, finding that the police affiant and Crown agent acted improperly in obtaining the wiretap authorization.

The Court of Appeal allowed the appeal, holding that the trial judge exceeded his jurisdiction by excising correct information from the affidavit and erred in finding that the remaining information was insufficient.

The Court also found that the trial judge made palpable and overriding errors regarding the conduct of the police affiant and the legal duties of the Crown agent.

A new trial was ordered.

The accused was charged with sex-related offences.

At trial, the judge stayed the proceedings because a portion of the complainant's preliminary inquiry testimony was lost due to a defective recording tape, finding a breach of the accused's s. 7 Charter right to make full answer and defence.

The Crown appealed.

The Court of Appeal allowed the appeal, holding that the trial judge erred by applying the Carosella test instead of the La test for lost evidence.

Since the Crown provided a satisfactory explanation for the loss, the accused had to establish actual prejudice, which he failed to do given the availability of the complainant, full disclosure, and alternative means to explore inconsistencies.

The stay was set aside and a new trial ordered.

The appellant appealed his conviction, arguing that the search warrant should be quashed because the information to obtain it included irrelevant and improper references to the facts underlying his prior murder acquittal.

The Court of Appeal held that while the references were improper, their inclusion was not so flagrant as to amount to an abuse of the search warrant process.

After excising the impugned references, there remained an ample basis for granting the warrant, and no breach of section 8 of the Charter was found.

The appellant was convicted of five counts of indecent assault and one count of sexual assault involving adolescent male victims over a 10-year period.

He appealed the convictions, arguing the trial judge erred in admitting similar fact evidence across all counts and failed to provide adequate reasons for credibility findings.

He also appealed his 9.5-year global sentence.

The Court of Appeal dismissed the conviction appeal, finding the trial judge properly applied the test for similar fact evidence and that the credibility findings were supported by the record.

The sentence appeal was also dismissed, as the sentence fell within the accepted range for historical sexual abuse involving a position of trust.