Howard J. Borenstein

The appellant challenged convictions for trafficking and conspiracy to traffic in heroin arising from two undercover drug transactions supported by surveillance, intercepted telephone conversations, and undercover officer evidence.

The court held that the circumstantial evidence compellingly established knowledge and participation in the conspiracy, and rejected arguments that the trial judge failed to identify the evidentiary basis for conviction or reversed the burden of proof.

Applying the co-conspirator evidence framework, the court found no basis to interfere with the convictions.

However, the court allowed the sentence appeal and reduced the custodial term from eleven years to eight years, placing the appellant at the lower end of the accepted range.

The appellant appealed an 18-month custodial sentence imposed after a guilty plea to misappropriating more than $204,000 from her employer over approximately three years.

The court held that the proposed fresh evidence concerning post-arrest mental and physical health was not fresh evidence because it merely restated what had already been attributed to the doctor at trial.

While emphasizing the significant breach of trust, the extensive and repeated nature of the misconduct, and the absence of restitution, the court concluded the sentencing judge erred by treating lack of remorse as an aggravating factor rather than simply not a mitigating one.

Leave to appeal was granted, the appeal was allowed, and the sentence was reduced to 12 months in custody.

Criminal conviction appeal arising from a taxi robbery prosecution in which the police obtained an inculpatory statement by threatening to "trash" the accused's mother's home during execution of a search warrant.

The court held that police conduct rendering a statement involuntary at common law infringes s. 7 of the Charter, and that the resulting oral statement and diagram were conscriptive evidence that had to be excluded under s. 24(2).

The court exercised its discretion to allow the accused to advance the Charter argument for the first time on appeal because voluntariness had been fully litigated at trial and the record was complete.

The court further held that the St. Lawrence rule must be modified to recognize a discretion to exclude involuntary confessions despite confirmation by real evidence, with admission justified only in highly exceptional circumstances.

Without the confession, the remaining evidence could not support conviction, so the convictions were quashed and acquittals entered.