Howard Krongold

The appellant challenged convictions for internet luring and related sexual offences arising from online communications and a subsequent sexual encounter with a child complainant, arguing that he honestly but mistakenly believed the complainant was 14 and had taken sufficient steps to ascertain age.

The court held that the statutory mistake-of-age defence under ss. 172.1(4) and 150.1(4) required an objective, contextual assessment of whether a reasonable person would have taken further steps, particularly in light of numerous red flags and the complainant's mother's explicit warning that the complainant was underage.

The court found that a single initial inquiry and later reliance on the complainant's online representations were insufficient.

The appellant's sentence appeal also failed because the sentencing judge had expressly treated the lengthy and strict bail conditions as mitigating, and the global sentence of 23 months' incarceration followed by probation was fit given the grooming conduct and possession of child pornography.

The appellant appealed his conviction for trafficking crack cocaine.

The sole issue at trial was identity.

The trial judge was unable to identify the appellant from surveillance photographs but relied on the opinions of police officers who identified the appellant in court.

The Court of Appeal held that the trial judge erred in relying on the officers' opinions, as they had no special knowledge or advantage over the judge in comparing the photographs to the appellant.

The in-dock identification was inherently frail, and the verdict could not be supported by the evidence.

The appeal was allowed and the conviction quashed.

The appellant appealed a conviction for refusing to provide a breath sample contrary to the Criminal Code.

The appellant argued that the trial judge erred in dismissing a Charter s. 10(b) claim relating to the right to counsel and in finding that the appellant refused to provide a breath sample.

The appeal court held that the trial judge’s reasons did not sufficiently explain the basis for concluding that the appellant made an unequivocal refusal, which is required for conviction.

On the evidence, the court could not identify a clear refusal prior to the charge.

The conviction was therefore set aside and a new trial ordered before a different judge.

The Crown brought an application for certiorari and mandamus to overturn a preliminary inquiry judge's decision to discharge the respondents on charges of first degree murder and commit them on second degree murder.

The Crown argued the judge committed jurisdictional error by weighing competing inferences, usurping the role of the trier of fact, and failing to consider the whole of the evidence regarding planning and deliberation and unlawful confinement.

The Superior Court dismissed the application, finding the preliminary inquiry judge correctly applied the test for committal and did not commit any jurisdictional error in concluding there was insufficient evidence for a properly instructed jury to return a verdict of first degree murder.

The appellant appealed his convictions and sentence.

Based on the joint position of the parties, the Court of Appeal set aside the conviction on count one and ordered a new trial.

The Crown conceded that the 18-month custodial sentence for the remaining convictions was unfit.

The Court substituted an 18-month conditional sentence, noting the appellant's employment, support for his mother, and compliance with bail conditions.

The appellant appealed his conviction for second degree murder, arguing the trial judge erred in her jury instructions regarding collusion between Crown witnesses, fabrication of alibi evidence, motive to lie, and exclusive motive to kill.

The Crown cross-appealed the sentence, seeking to increase the 13-year parole ineligibility period to 15 years.

The Court of Appeal dismissed both appeals, finding no errors in the jury instructions and concluding the trial judge engaged in a comprehensive and fair assessment of the sentencing factors.

The Court held that under s. 16(3) of the Canada Evidence Act, an adult witness with mental disabilities is competent if they can communicate evidence and promise to tell the truth.

Requiring abstract understanding of truth-telling obligations was rejected.

The acquittal was set aside and a new trial ordered.

The appellant appealed a conviction for fraud.

The Court of Appeal dismissed the appeal, finding it unnecessary to decide if the conduct amounted to theft by conversion.

The Court held that making use of funds while being wilfully blind to their source constitutes dishonesty, satisfying the elements of fraud.

The appellant appealed his sentence of just over 5 years imprisonment for a brutal, planned beating of a victim who had spoken to the police.

The Court of Appeal found that the trial judge erred in applying amendments to s. 719 of the Criminal Code, as the offence was committed before the amendments came into force.

However, applying the principles in R. v. Rezaie, the Court concluded the sentence was fit given the severity of the offence and the appellant's record of violence.

The appeal was dismissed.

The respondents were convicted of second degree murder after shooting the victim, who died a month later from a blood clot.

The victim had ingested cocaine shortly before death, raising a causation issue.

The trial judge failed to instruct the jury on the included offence of attempted murder.

The Supreme Court of Canada held that this was an error of law and declined to apply the curative proviso under s. 686(1)(b)(iii) of the Criminal Code, as the error could not be confidently dismissed as harmless.

The Crown's appeal was dismissed, upholding the Court of Appeal's order for a new trial.

The appellant appealed her conviction on the basis that the trial judge erred in assessing eyewitness identification evidence.

The Court of Appeal found that the trial judge failed to distinguish the relative probative value of multiple identifications by a police officer, failed to consider a relevant physical description discrepancy despite a Crown admission, and failed to caution himself on the generic weaknesses of eyewitness identification.

The appeal was allowed and a new trial ordered.

The appellant was convicted of possession of cocaine for the purpose of trafficking and possession of a loaded prohibited firearm after police found drugs and a gun in his apartment while he was asleep on the balcony.

On appeal, the Court of Appeal found that the trial judge committed two reversible errors.

First, the trial judge improperly reversed the burden of proof by holding that the appellant was legally deemed to be in possession of the contraband by virtue of his tenancy.

Second, the trial judge improperly devalued the appellant's credibility by misapprehending evidence to find a breach of the rule in Browne v. Dunn and by incorrectly concluding he was fed answers during examination-in-chief.

The appeal was allowed and a new trial ordered.

The respondent and his partner engaged in consensual erotic asphyxiation.

The partner consented in advance to being choked into unconsciousness and to the sexual activity that would occur while she was unconscious.

The trial judge convicted the respondent of sexual assault, finding that a person cannot legally consent to sexual activity while unconscious.

The Court of Appeal overturned the conviction.

The Supreme Court of Canada allowed the Crown's appeal and restored the conviction, holding that the Criminal Code requires a conscious, operating mind throughout the sexual activity to provide valid consent, and advance consent to unconscious sexual activity is not recognized in law.

The Crown appealed the respondent's acquittal for being an occupant in a motor vehicle knowing there was a firearm.

The trial judge found the respondent was in the car in an honest attempt to prevent her intoxicated boyfriend from doing something stupid.

The Court of Appeal found no reversible error given this blameless purpose and dismissed the appeal.

The Crown appealed the sentence imposed on the respondent for possession for the purpose of trafficking in slightly more than a pound of cocaine.

The Court of Appeal noted that the normal range for a first-time offender in such cases is 5 to 8 years, and the sentence imposed fell below this norm.

However, due to unusual circumstances involving fairness concerns regarding how the respondent was persuaded to plead and litigation risks, the court declined to intervene and dismissed the appeal.

The appellant appealed his convictions on the basis that the trial judge provided inadequate reasons.

The Court of Appeal agreed, noting that the trial judge gave only conclusory reasons for rejecting the appellant's evidence and made no comments about the complainant's evidence on Counts 1 and 2.

The appeal was allowed and a new trial was ordered on Counts 1, 2, 4, and 5.

The appellant appealed his conviction, arguing that the trial judge failed to provide an adequate review of the evidence and failed to provide a balanced charge to the jury.

The Court of Appeal dismissed the appeal, finding that while the trial judge could have provided a fuller explanation of the evidence, the charge was adequate in the circumstances and the jury would have understood the defence advanced.

The appellant appealed his conviction for sexual assault and his one-year custodial sentence.

The conviction arose from the sexual assault of a seriously intoxicated 16-year-old girl.

The appellant argued the trial judge erred in assessing the complainant's credibility, relying on confirmatory evidence, misapprehending communication evidence, and drawing an adverse inference regarding an uncalled witness.

The Court of Appeal dismissed the conviction appeal, finding no errors in the trial judge's careful scrutiny of the evidence.

The sentence appeal was also dismissed, as a custodial sentence was entirely appropriate given the vulnerability of the young victim.

The appellants were convicted of second degree murder after the victim, whom they had shot, died a month later from a pulmonary embolism.

At trial, the defence argued that the embolism was caused by the victim's ingestion of cocaine shortly before his death, not the gunshot wounds.

The trial judge instructed the jury to acquit if they had a reasonable doubt about causation, declining to leave attempted murder as a possible verdict.

The Court of Appeal held that section 660 of the Criminal Code applies to murder charges, meaning attempted murder is an available verdict if the full offence is not proved.

The majority concluded that the failure to instruct the jury on attempted murder was a reversible error and declined to apply the curative proviso, ordering a new trial.

The appellant was convicted of aggravated assault after allegedly slashing the victim's face.

The victim gave an unsworn audio-taped statement to the police identifying the appellant as the assailant, but left the country the next day and could not be located for trial.

The trial judge admitted the statement under the principled exception to the hearsay rule, finding necessity and reliability.

On appeal, the Court of Appeal found that the trial judge erred in concluding that no benefit would be served by cross-examining the victim, given evidence of possible animus, unsavoury character, and suspicious departure.

The appeal was allowed and a new trial ordered.