Howard Leibovich

The appellants, members of the Hells Angels, were convicted of extortion and extortion in association with a criminal organization after threatening a victim over an alleged debt while wearing club colours.

They appealed their convictions, arguing that the criminal organization provisions of the Criminal Code are unconstitutionally vague and overbroad.

The Court of Appeal dismissed the appeal, finding that the terms 'facilitation' and 'in association with' are well-understood and not impermissibly vague or overbroad.

The court also upheld the trial judge's finding that the appellants deliberately invoked their membership in the organization to inspire fear, and affirmed the sentence imposed.

The appellant appealed his convictions for two counts of second degree murder, seeking to strike his guilty pleas based on fresh evidence.

The Court of Appeal dismissed the appeal, finding the proposed fresh evidence incredulous, contrived, and unworthy of belief.

The Court concluded the pleas were fully informed and voluntary, and that the appellant was manipulative and attempting to deceive the court.

The appellant was convicted of first degree murder after shooting his former friend and business partner.

On appeal, he argued the trial judge erred by excluding evidence of the deceased's propensity for violence and habit of carrying a gun, and by failing to instruct the jury on self-defence and provocation.

The Court of Appeal dismissed the appeal, finding the trial judge reasonably concluded the excluded evidence's prejudicial effect outweighed its probative value, and correctly determined there was no air of reality to the defences of self-defence or provocation.

On a ministerial reference concerning a 1972 murder conviction, the court considered whether previously undisclosed police information about a potentially exculpatory alibi and witness statements, and new expert reports about false confessions, were admissible as fresh evidence.

The majority held that the alibi-related material and related witness information were admissible under the Palmer framework because they could reasonably have affected the verdict, although the Crown's non-disclosure did not render the 1972 trial unfair under the disclosure standards then prevailing.

The majority rejected the recent expert reports as not truly fresh, finding that their substance had already been before the jury through trial experts.

Treating the matter as an appeal, the majority quashed the conviction and ordered a new trial; one judge dissented on the first question and would have refused admission of the fresh evidence.

The appellant pleaded guilty in 1989 to break and enter and assault, serving eight months in jail.

Almost twenty years later, fresh evidence revealed that another individual committed the offences.

The appellant appealed his conviction with the consent of the Crown.

The Court of Appeal admitted the fresh evidence, set aside the guilty pleas, and entered acquittals, noting the dangers of mistaken eyewitness identification and the court's discretion to set aside a guilty plea in the interests of justice to prevent a miscarriage of justice.

The Crown appealed the sentence imposed on the respondent after the trial judge terminated a dangerous offender application and sentenced him to a conventional term.

The trial judge had excluded a psychiatric assessment report based on perceived power imbalances, lack of independence, and late disclosure of materials.

The Court of Appeal found the trial judge erred in excluding the report, as there was no evidence of collaboration between the Crown and the assessing psychiatrist, and the respondent suffered no prejudice from the late disclosure.

Given the complete record and the respondent's high risk of violent reoffending, the Court of Appeal declared the respondent a dangerous offender and imposed an indeterminate sentence.

The appellant appealed his dangerous offender designation.

The Crown conceded that the appeal should be allowed and a new dangerous offender proceeding ordered because the trial judge did not have the benefit of R. v. Johnson and failed to consider the Long Term Offender provisions in the Criminal Code.

The Court of Appeal allowed the appeal and ordered a new dangerous offender proceeding.

The appellant appealed his conviction for second degree murder and his sentence of life imprisonment with a 15-year period of parole ineligibility.

He argued the trial judge erred by excluding evidence of the deceased's propensity for violence, misdirecting the jury on after-the-fact conduct regarding intent, and misdirecting the jury on self-defence.

The Court of Appeal dismissed the conviction appeal, finding no errors in the trial judge's evidentiary rulings or jury instructions.

The sentence appeal was also dismissed, as the trial judge properly considered the appellant's prior record, the senseless nature of the killing, and the jury's recommendation.

The appellant appealed his convictions for sexual interference, sexual exploitation, and sexual assault.

The sole issue at trial was credibility.

The Court of Appeal found that the trial judge made errors of fact and principle in assessing the appellant's credibility, specifically by mischaracterizing evidence elicited during cross-examination as a calculated attack on the complainant's character and by misapprehending the testimony of the appellant's mother.

The appeal was allowed, the convictions were set aside, and a new trial was ordered.

The 18-year-old appellant appealed his nine-year sentence for a brutal robbery of an elderly store clerk.

The Court of Appeal allowed the appeal, finding the sentence was just outside the range established in similar cases, particularly R. v. Borde.

The majority reduced the sentence to six years (effective eight years with pre-trial custody) to better reflect the principle of parity and the appellant's potential for rehabilitation.

MacPherson J.A. dissented, finding no error in the trial judge's sentence.

The appellant appealed his conviction by a jury.

The Court of Appeal found that the trial judge erred in his 'Oliver' instruction by failing to clarify that the caution applied only to the co-accused and not the appellant.

Furthermore, given the frailties in the evidence of two witnesses who could be viewed as accomplices, the trial judge should have cautioned the jury to proceed with care before acting on their evidence to convict the appellant.

The combined errors warranted a new trial, particularly as the Crown's case was not overwhelming.

The appeal was allowed and a new trial ordered.

The appellant appealed his conviction for sexual assault, arguing the trial judge erred regarding the complainant's capacity to consent and competency to testify.

The Court of Appeal dismissed the appeal, holding that capacity to consent and competency to testify are distinct issues.

The court found that even if the trial judge erred on capacity, she accepted the complainant's version of events, which indicated no consent.

Furthermore, the appellant's own testimony showed he failed to take reasonable steps to ascertain consent.

The Crown moved for an order permitting it to file an extended factum and appointing amicus curiae in an appeal.

The respondent opposed the appointment of amicus and argued he had been deprived of his trial files.

The Court of Appeal granted the Crown's motion, allowing an extended factum of 42 pages for both parties, and appointed amicus curiae due to the complexity of the record.

The Court also directed that the respondent be provided with his files and scheduled a case management hearing to set timelines for the appeal.

The Crown appealed the trial judge's decision to dismiss a dangerous offender application and instead designate the respondent as a long-term offender.

The trial judge had found that the statutory criteria for a dangerous offender were met but concluded the Crown had to prove beyond a reasonable doubt that there was no reasonable possibility of eventual control of the risk the respondent presented in the community.

The Court of Appeal held that the trial judge erred in imposing this burden of proof on the Crown.

The issue of whether the public threat can be reduced to an acceptable level through long-term offender provisions does not require either party to satisfy a burden of proof, but is a matter of judicial discretion based on the whole of the evidence.

The appeal was allowed and a new dangerous offender hearing was ordered because the trial judge failed to make necessary findings of fact.

The appellant appealed his conviction for dangerous driving, arguing that his driving was the result of unexpectedly falling asleep due to sleep apnea.

The Court of Appeal upheld the trial judge's rejection of this non-blameworthy explanation, noting the weak expert evidence and the appellant's lack of history of falling asleep unexpectedly.

The court also dismissed procedural arguments regarding the trial judge's conduct.

However, based on a Crown concession, a clerical conviction for dangerous driving simpliciter was quashed.

The appellant was convicted of second degree murder.

At trial, the Crown relied on the testimony of a witness whose memory of seeing the appellant near the crime scene was refreshed through hypnosis, as well as similar fact evidence from a former girlfriend.

The Supreme Court of Canada allowed the appeal and ordered a new trial, holding that post-hypnosis evidence is presumptively inadmissible because it does not meet the reliability requirements for novel scientific evidence.

The Court also found that the similar fact evidence lacked sufficient probative value to outweigh its prejudicial effect, and the curative proviso could not be applied.

The Crown appealed the dismissal of a dangerous and long-term offender application and the sentence imposed for aggravated assault.

The sentencing judge had ruled that a dangerous offender designation required the predicate offence to warrant a minimum two-year sentence, similar to the long-term offender provision.

The Court of Appeal held this was an error of law, as the dangerous offender provision contains no such requirement.

The Court allowed the appeal, set aside the sentence, designated the respondent a long-term offender, and imposed a sentence of time served plus a further period of community supervision.

The appellant appealed his dangerous offender designation and indeterminate sentence.

The Court of Appeal allowed the appeal and ordered a new hearing because the trial judge failed to consider the long-term offender provisions, as required by the subsequent Supreme Court of Canada decision in R. v. Johnson.

Additionally, the trial judge and expert witnesses had relied on findings from prior convictions that were later set aside by the Court of Appeal.

Although the dangerous offender finding was not unreasonable based solely on the predicate offences, the failure to consider the long-term offender provisions and the reliance on overturned convictions necessitated a new hearing.

The appellant pleaded guilty to kidnapping, assault with a weapon, and failing to comply with a probation order.

He was sentenced to three years' imprisonment, credited with pre-sentence custody, and designated a long-term offender with an eight-year supervision period.

He appealed the long-term offender designation and the length of the sentence and supervision period.

The Court of Appeal dismissed the appeal, finding no error in the sentencing judge's conclusion that the appellant's past behaviour constituted the necessary pattern for the designation, and holding that the sentence, while at the high end, was not erroneous.

The appellant, who had nine prior convictions for impaired driving, was sentenced to four and a half years' imprisonment for his tenth conviction.

The sentencing judge initially failed to specify whether the sentence was concurrent or consecutive to the three and a half year sentence the appellant was already serving.

After the warrant of committal was signed, the judge clarified that the sentence was consecutive.

On appeal, the appellant argued the judge was functus officio and that the consecutive sentence violated the totality principle.

The Court of Appeal dismissed the appeal, holding that the judge had jurisdiction to clarify her manifest intention without reconsidering the sentence, and that the consecutive sentence was fit given the paramount need to protect the public from a repeat offender.