Howard Leibovich

The appellant appealed his conviction for first degree murder in the death of Ernesto Agsaulio.

The appellant had planned and deliberated the murder of his ex-wife Maria Ching.

When attempting to carry out this plan, Agsaulio intervened to prevent the appellant's entry into the house, and during the ensuing struggle, the appellant mortally wounded Agsaulio.

The trial judge instructed the jury that planning and deliberation regarding the murder of the intended victim (Ching) could elevate an unintended victim's murder (Agsaulio) to first degree murder if committed in the course of carrying out the plan.

The Court of Appeal found this instruction erroneous and substituted a conviction for second degree murder.

The appellant appealed his conviction for second-degree murder on three grounds: (1) whether the trial judge erred in refusing to put the defence of provocation to the jury; (2) whether the trial judge misdirected the jury on the use of evidence that the appellant did not apply the brakes immediately after striking the victim; and (3) whether the trial judge erred in failing to recuse Crown counsel for failing to disclose certain information communicated by a Crown witness.

The Court of Appeal dismissed all three grounds of appeal and upheld the conviction.

The appellant was convicted of second degree murder for stabbing the deceased 19 times during a fight.

The appellant had armed himself with a steak knife in anticipation of a confrontation and carried it openly as he approached the deceased.

When the deceased said "you're dead," the appellant responded "bring it . . . game on." The trial judge refused to instruct the jury on the partial defence of provocation.

The Court of Appeal upheld this decision, finding that the words "you're dead" did not cause the appellant to lose his power of self-control and act on the sudden, as required by the provocation defence.

The appellant's preparation for the confrontation and his state of readiness negated any element of surprise necessary for provocation.

A Toronto police officer was convicted of attempted murder for firing a second volley of six shots at a knife-wielding man lying on a streetcar floor, 5.5 seconds after an initial volley that had fatally wounded the victim.

The officer was acquitted of second-degree murder.

The Court of Appeal upheld the conviction and the six-year sentence, finding the verdicts were not inconsistent and that the mandatory minimum sentences for attempted murder with a firearm do not violate the Charter.

The court rejected the officer's constitutional challenges under sections 7 and 12 of the Charter and dismissed his application to adduce fresh evidence on appeal.

The appellant was convicted by two separate juries of two murders committed in January 2008.

On appeal, the appellant challenged four pre-trial evidentiary rulings: (1) the admissibility of his statements to police on April 15 and 16, 2008; (2) the admissibility of shotgun shells found during a lawful traffic stop on January 15, 2008; (3) the admissibility of a statement made on February 19, 2008 regarding ammunition; and (4) the admissibility of bad character evidence.

The Court of Appeal upheld all evidentiary rulings and dismissed the appeals.