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.

The appellant was convicted of second degree murder after striking the victim with his truck during an altercation.

On appeal, the appellant argued the trial judge erred in instructing the jury on the defence of accident, the use of after-the-fact conduct, and the fault element for murder.

The Court of Appeal agreed, finding the errors compromised the jury's ability to determine the fault element.

The Court dismissed the appeal from conviction but substituted a conviction for manslaughter and imposed a sentence of time served, as jointly proposed by the parties.

The appellant was convicted of first degree murder, sexual assault causing bodily harm, and kidnapping of an eight-year-old child.

On appeal, he argued the trial judge erred in his instructions on post-offence conduct, in admitting a portion of the co-accused's videotaped statement for the truth of its contents, and in failing to give a Vetrovec warning regarding the co-accused's testimony.

The Court of Appeal dismissed the appeal, finding no evidential foundation for an accessory after the fact defence, that the videotaped statement met threshold reliability, and that the trial judge properly exercised his discretion to omit a Vetrovec warning at the tactical request of defence counsel.

During an appeal involving allegations of ineffective assistance of counsel, the appellant's trial counsel retained his own lawyers.

Trial counsel's lawyers inadvertently disclosed a letter between trial counsel and themselves to the appellant's appeal counsel.

Trial counsel brought a motion for the return of the document, asserting solicitor-client privilege.

The Court of Appeal granted the motion, finding that the letter was privileged, the inadvertent disclosure did not constitute a waiver, and the innocence at stake exception did not apply to abrogate the privilege.

The appellant pled guilty to possession of stolen property, attempted break and enter, and break and enter, receiving a 42-month sentence and a lifetime weapons prohibition under s. 109(3) of the Criminal Code.

He appealed the weapons prohibition, arguing there was no violence used, threatened, or attempted.

The Court of Appeal found that the appellant's actions, which he admitted scared the victims, constituted an implied threat of violence.

The appeal was dismissed, but the prohibition was varied to 10 years at the Crown's request.

The appellant appealed his conviction, arguing that the trial judge erred in drawing an inference of knowledge from circumstantial evidence and reversed the onus of proof.

The appellant also sought to tender fresh evidence.

The Court of Appeal dismissed the appeal, finding that the circumstantial evidence pointed to only one rational conclusion and the trial judge did not reverse the onus of proof.

The court declined to admit the fresh evidence due to the lack of a motion and its irrelevance.

The appellant pleaded guilty to manslaughter in 1992 in connection with the death of her stepdaughter, largely based on the pathology evidence of Dr. Charles Smith.

Decades later, fresh expert evidence unanimously discredited Dr. Smith's findings regarding the cause and mechanism of death.

The Court of Appeal admitted the fresh evidence, finding that the original guilty plea was uninformed and the conviction unreasonable.

The appeal was allowed, the conviction was set aside, and an acquittal was entered.

The appellant appealed his conviction for first-degree murder, arguing the trial judge erred in instructing the jury on unlawful confinement as a basis for first-degree murder, and in relating the evidence of his intoxication and cocaine withdrawal to the requisite intent for murder.

The Court of Appeal dismissed the appeal, finding that the initial restraint of the victim was a distinct act from the subsequent killing, and that the trial judge's instructions on intent and the evidence were adequate.

The appellant pleaded guilty to aggravated assault after inflicting a life-threatening stab wound to the victim's neck and was sentenced to two years less a day imprisonment, plus 7 months of pre-sentence custody credit.

She appealed the sentence, arguing the sentencing judge erred in stating he could not go lower.

The Court of Appeal dismissed the appeal, finding the judge meant a lower sentence was inappropriate, not legally prohibited, and that the sentence was fit given the serious nature of the offence and the appellant's prior conviction for a similar offence.

The appellant appealed his convictions for assault and assault with a weapon, as well as his designation as a dangerous offender and indeterminate sentence.

He argued the trial judge failed to address inconsistencies in the complainants' evidence and that the predicate offences did not form a pattern with his prior sexual assault convictions.

The Court of Appeal dismissed the conviction appeal, finding the trial judge's reasons adequate.

The sentence appeal was also dismissed, as the court found a clear pattern of the appellant using violence to achieve sexual objectives and an inability to control his impulses.

The appellant was convicted of assault following a confrontation with her landlord.

The trial judge resolved conflicting accounts by relying on the appellant's prior convictions for assault and the lack of criminal records for the complainant and her family.

The summary conviction appeal judge dismissed the appeal.

The Court of Appeal granted leave and allowed the appeal, finding that the trial judge improperly used the prior convictions to infer a propensity to commit assault rather than for assessing credibility.

The conviction was set aside and a new trial ordered.

The appellant appealed his conviction for first degree murder, arguing the trial judge made several errors in his charge to the jury regarding the requisite intent for murder.

The appellant admitted to causing the victim's death but claimed he lacked the intent for murder due to intoxication and the minimal force used.

The Court of Appeal found that the trial judge erred by failing to link the 'common sense inference' of intent to the specific manner of death (venal asphyxiation) and by improperly applying the thin skull principle to the issue of intent rather than causation.

These errors compromised the defence, rendering the trial unfair.

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

The appellant and a co-accused were jointly tried for first-degree murder.

The co-accused advanced a cut-throat defence and adduced highly prejudicial bad character evidence against the appellant, including statements that the appellant had killed before.

The appellant was convicted and the co-accused was acquitted.

On appeal, the appellant argued the bad character evidence was inadmissible and the jury instructions regarding its use were inadequate.

The Court of Appeal held that the evidence was admissible but found the trial judge erred by failing to provide adequate positive and negative instructions on how the jury could use it.

However, the Court applied the curative proviso, concluding that the evidence of the appellant's participation in the murder was so overwhelming that a properly instructed jury would inevitably have convicted him.

The appeal was dismissed.

The appellant appealed his conviction for sexual assault, arguing the trial judge failed to properly analyze inconsistencies in the complainant's testimony, erred in finding the assault was not consensual, and rendered an unreasonable verdict.

The Court of Appeal dismissed the appeal, finding the trial judge committed no error in his analysis of the inconsistencies, properly accepted the complainant's evidence which was confirmed by her friends, and reasonably rendered the verdict.

The appellant was convicted of impaired driving causing death and dangerous driving causing death after striking and killing a pedestrian while driving at a high rate of speed in a residential neighbourhood.

He was sentenced to five years' imprisonment and a ten-year driving prohibition.

On appeal, the appellant argued the trial judge erred in finding causation without determining the victim's exact location, misapprehended evidence, failed to give credit for strict pre-trial bail conditions, and imposed an unfit sentence.

The Court of Appeal dismissed the appeal, finding no errors in the trial judge's factual findings or exercise of discretion, and concluding that the five-year sentence was not a substantial and marked departure from sentences customarily imposed for similar offences.

The appellant appealed his designation as a dangerous offender, arguing he should have been designated a long-term offender.

The Court of Appeal dismissed the appeal, finding the sentencing judge did not err in concluding there was no reasonable possibility of successful treatment to control the risk the appellant posed in the community.