Gabriel Gross-Stein

The accused was charged with four serious offences: conspiracy to commit weapons trafficking, offer to transfer a firearm, conspiracy to commit extortion, and conspiracy to commit robbery.

The Crown's case relied almost entirely on intercepted private communications from Project RX between the accused and an alleged co-conspirator.

The accused testified in his own defence and made significant admissions regarding discussions about illegal activities.

The court found that while the accused engaged in discussions about these crimes, the Crown failed to prove the essential element of agreement required for conspiracy charges.

The court distinguished between mere discussion and negotiation versus a true meeting of the minds.

The court also applied the mutuality of object doctrine to the weapons trafficking charge, finding that a simple buy-sell agreement does not constitute a conspiracy to traffic firearms.

The accused was acquitted on all four counts.

The accused applied under s. 278.3 of the Criminal Code for production of counselling records from a sexual assault centre relating to the complainant.

The prosecution intended to call expert evidence regarding delayed memory recall, and the defence argued that the counselling process may have revived, refreshed, or shaped the complainant’s memories.

The court held that testimony at the preliminary inquiry suggesting counselling played a role in the emergence of additional memories met the threshold of likely relevance.

Given that the case turned largely on the complainant’s credibility and the reliability of recovered memories, judicial review of the records was necessary in the interests of justice to permit full answer and defence.

The appellant was convicted of kidnapping and sexually assaulting a 12-year-old girl, designated a dangerous offender, and given an indeterminate sentence.

On appeal, he argued the trial judge misapprehended eyewitness identification, cell tower, and DNA evidence, and erred in rejecting a determinate sentence with long-term supervision.

The Court of Appeal dismissed the conviction appeal, finding no material misapprehension of evidence and noting the overwhelming case against the appellant.

The sentence appeal was also dismissed, as the trial judge reasonably concluded the appellant's risk could not be managed in the community.

The court sentenced the offender after jury convictions for incest and sexual assault against his daughter, committed repeatedly over approximately two and a half years.

The abuse began when the victim was a teenager brought from Jamaica to Canada against her wishes, and it resulted in two pregnancies and two children, both confirmed by DNA testing.

Applying the sentencing principles in the Criminal Code and the appellate authorities on prolonged sexual abuse of children by adults in positions of trust, the court held that denunciation and deterrence were the dominant objectives and that the case fell at the high end of the sentencing range.

A sentence of 10 years for incest and 6 years for sexual assault, concurrent, was imposed, with 6 months' credit for pre-sentence custody, together with DNA, weapons prohibition, SOIRA, and non-communication orders.

The appellant appealed his convictions for ten offences, including attempted aggravated assault and discharge of a firearm, arising from an incident at an auto repair shop.

He argued the trial judge erred in instructing the jury on eyewitness identification, the presumption of possession for a driver, and attempted murder.

The Court of Appeal dismissed the appeal, finding the identification charge adequate, applying the curative proviso to a minor error regarding possession, and upholding the attempted murder instruction based on the appellant's conduct.

The appellant was convicted of second degree murder following a shooting that occurred during a drug transaction.

On appeal, the appellant argued that the trial judge erred in responding to a jury question by failing to instruct the jury on the defence of a third party under former s. 37 of the Criminal Code, and by inadequately addressing the mens rea component of the question.

The Court of Appeal dismissed the appeal.

The court found there was no air of reality to the proportionality requirement of s. 37, as shooting the victim in the core to defend a third party who was not in immediate peril constituted excessive force.

The court also held that the trial judge's instruction on mens rea was correct and comprehensive.

The appellant, an inmate, fatally stabbed a fellow inmate and was convicted of first-degree murder.

At trial, the appellant claimed self-defence and testified to three prior incidents that were never put to the Crown's witnesses during cross-examination.

The trial judge ruled that defence counsel breached the rule in Browne v. Dunn and remedied the breach with a jury instruction rather than recalling the witnesses.

The Court of Appeal dismissed the appeal, finding that the trial judge was entitled to find a breach of the rule and that the jury instruction was a reasonable and proper remedy in the circumstances.

The appellant appealed his convictions for impaired care or control and driving with excess alcohol.

He argued the trial judge erred in dismissing his s. 11(b) Charter application for unreasonable delay, in exhibiting a reasonable apprehension of bias by preparing reasons before hearing submissions, in failing to exclude breath readings due to a s. 2(a) Charter breach involving the removal of his turban, and in rejecting his evidence of bolus drinking.

The Superior Court of Justice allowed the appeal, finding the trial judge erred in his s. 11(b) analysis, his s. 2(a) analysis, and his credibility findings regarding the appellant's bolus drinking defence.

A new trial was ordered on both counts.

The appellant was convicted of second-degree murder.

On appeal, he argued the trial judge erred by permitting the Crown to cross-examine a recanting witness on a prior inconsistent police statement under s. 9(2) of the Canada Evidence Act, and that the Crown's closing address improperly invited the jury to use the statement for its truth.

He also challenged the adequacy of the Vetrovec warning regarding the Crown's key witness.

The Court of Appeal dismissed the appeal, finding the limited cross-examination served the ends of justice, the jury was properly instructed on the use of the statement, and the Vetrovec warning adequately cautioned the jury while properly identifying independent confirmatory evidence.

The accused applied to exclude recordings of telephone conversations made while he was an inmate in a federal penitentiary, arguing that the interception violated his s. 8 Charter right to be free from unreasonable search or seizure.

The calls had been recorded by correctional authorities and later seized by police pursuant to a search warrant.

The court held that the accused failed to establish a reasonable expectation of privacy in the communications, given institutional policies, warning signs, and signed acknowledgments indicating calls could be monitored or recorded.

The presence of a third party on the calls further undermined any claim of privacy.

As a result, the court found no Charter breach and declined to exclude the evidence.