Howard Leibovich

The appellant appealed his convictions and sentence for break and enter, theft, and mischief following guilty pleas.

The Court of Appeal found that the trial judge ought to have made further inquiries into the basis for the plea regarding a July 8 break-in, as the police had no evidence other than the appellant's equivocal statement and inability to remember the event.

The conviction for the July 8 charge was vacated, and the sentence was correspondingly reduced by six months.

The appeal was otherwise dismissed, with the court noting the appellant's lengthy record justified the remaining sentence.

The appellant appealed his conviction and sentence, including a twenty-year period of parole ineligibility, for an unprovoked shooting.

He argued the trial judge erred in a Corbett application and failed to instruct the jury on the use of previous consistent statements.

The Court of Appeal dismissed the appeal, finding no reviewable error in the Corbett ruling and applying the curative proviso regarding the jury instructions due to the overwhelming case against the appellant.

The twenty-year parole ineligibility period was upheld given the appellant's serious criminal record and the fact he was on parole for manslaughter at the time of the offence.

The appellant, a public school teacher, was convicted of sexual assault, sexual exploitation, sexual assault with a weapon, and uttering death threats against a former student.

He appealed his convictions, alleging errors in the jury instructions regarding reasonable doubt, the Vetrovec warning, and his failure to testify, as well as the admission of the complainant's videotaped statement.

The appellant also sought to introduce fresh evidence and argued he received ineffective assistance of counsel because his trial lawyer allegedly prevented him from testifying.

The Crown appealed the four-year sentence as manifestly unfit.

The Court of Appeal dismissed all appeals, finding no reversible errors in the trial judge's instructions, rejecting the fresh evidence and ineffective assistance claims, and deferring to the trial judge's sentence.

The appellant appealed his conviction for first degree murder of his ex-wife.

The Crown's case was circumstantial, relying on motive, eyewitness identification, DNA evidence under the victim's fingernails, and after-the-fact conduct including flight.

The appellant argued the trial judge erred in his instructions on eyewitness identification, hearsay evidence of the victim's statements, discreditable conduct, collateral evidence, consciousness of innocence, and the admission of autopsy photographs.

The Court of Appeal found no reversible errors, noting the trial judge's charge was fair and balanced, and dismissed the appeal.

The appellant appealed his conviction for second degree murder, arguing that the trial judge erred in admitting post-hypnosis identification evidence, failed to properly instruct the jury on eyewitness identification and alibi evidence, and delivered an unbalanced charge that favoured the Crown.

The Court of Appeal found that while the post-hypnosis evidence was properly admitted, the trial judge committed serious errors in his jury instructions regarding the frailties of the identification evidence and the requirements for finding a fabricated alibi.

Furthermore, the jury charge lacked fairness and balance, compromising the appellant's right to a fair trial.

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

The appellant appealed his conviction for three counts of assault causing bodily harm by the discharge of a firearm arising from a nightclub shooting.

At trial, the primary defence was identity, but on appeal, the appellant solely argued the issue of self-defence.

The Court of Appeal dismissed the appeal, finding that based on the trial judge's findings of fact, the defence of self-defence under sections 34(2) or 37 of the Criminal Code could not assist the appellant.

The appellant appealed his convictions for sexual assault and unlawful confinement, as well as his designation as a dangerous offender.

He argued the trial judge erred by admitting out-of-court statements from a child witness, misdirecting the jury on unanimity, and refusing a mistrial.

The Court of Appeal found the child's statements were improperly admitted as the Crown failed to establish necessity, leading to the quashing of the unlawful confinement convictions.

However, the sexual assault conviction was upheld by applying the curative proviso.

The court dismissed the appeal regarding jury unanimity and the dangerous offender designation, affirming the indeterminate sentence.

The Crown appealed the acquittals of two inmates charged with second-degree murder following the fatal stabbing of a fellow inmate at Kingston Penitentiary.

The trial judge acquitted the accused on the basis of self-defence under s. 34(2) of the Criminal Code.

The Crown argued the trial judge erred in finding an air of reality to the self-defence claim and in assessing its subjective elements, specifically by finding that words alone could constitute an assault.

The Court of Appeal dismissed the appeal, holding that the victim's words, considered in the context of his aggressive conduct and history of violence, were sufficient to constitute an assault, and that the trial judge properly inferred the accused's subjective state of mind from the circumstantial evidence.

The appellant appealed his dangerous offender designation and indefinite sentence for sexual assault upon a child.

The sole issue was whether the sentencing judge erred in finding that the long-term offender amendments to the Criminal Code, which came into force after the appellant's conviction but before his sentencing hearing, did not operate retrospectively.

The Crown conceded that, based on the Supreme Court of Canada's decision in R. v. Johnson, the legislation applies retrospectively.

The Court of Appeal allowed the appeal, set aside the dangerous offender designation, and ordered a new sentencing hearing.

The appellant was convicted of second degree murder for killing his ex-girlfriend.

He appealed the conviction on several grounds, including the admission of post-offence conduct, similar fact evidence, and hypnotically enhanced testimony from a witness.

The Crown cross-appealed the sentence, seeking an increase in the 10-year parole ineligibility period.

The Court of Appeal dismissed both appeals, finding no reversible errors in the trial judge's evidentiary rulings or jury instructions, and upholding the sentence as fit and entitled to deference.

The respondent was convicted of multiple serious offences, including four counts of attempted murder, following a bank robbery where he shot three police officers and a civilian.

The trial judge imposed a total sentence of 14.5 years after credit for pre-sentence custody, rejecting a life sentence on the basis that it is reserved for the 'worst offence committed by the worst offender'.

The Crown appealed the sentence.

The Court of Appeal held that the trial judge erred in principle by rigidly applying the 'worst offence/worst offender' standard.

Given the extreme gravity of the offences, the respondent's extensive violent criminal record, and the need for denunciation and specific deterrence, the Court allowed the appeal and varied the sentences for the attempted murder convictions to life imprisonment.

The Crown brought an application to remove the appellant's counsel of record due to a conflict of interest.

The counsel had previously provided an opinion letter for a third party, whom the appellant now sought to implicate in the murder of the victim via fresh evidence on appeal.

The parties reached a resolution wherein independent counsel would handle the fresh evidence application and related grounds of appeal, ensuring no breach of duty to the former client while preserving the appellant's right to counsel of choice for the remainder of the appeal.

The Crown's application was withdrawn.

The appellant appealed his robbery conviction, arguing the trial judge erred in ruling his unrecorded confession to police was voluntary.

The Court of Appeal found that the trial judge failed to provide sufficient reasons for his credibility findings on the voir dire, particularly regarding the police officer's intent in entering the interview room and the appellant's claim of an inducement.

Applying the principles from Moore-MacFarlane and Sheppard, the Court held that the failure to analyze the conflicting evidence and explain the findings was an error of law.

The appeal was allowed and a new trial ordered.

The appellant appealed his conviction for uttering a threat, arguing the trial judge improperly relied on the victim's subjective fear.

The majority of the Court of Appeal dismissed the appeal, finding the trial judge correctly applied an objective analysis based on the words spoken, the appellant's intoxication, and his history of violence against the victim when drinking.

A dissenting judge would have allowed the appeal, concluding the words 'if you do not stop bugging me you will get it' did not objectively constitute a threat in the circumstances.

The appeal against an impaired driving conviction was abandoned and dismissed.

The appellant appealed his conviction, arguing that the trial judge failed to adequately assist him as a self-represented accused and erred in admitting similar fact evidence without a complete voir dire.

The Court of Appeal dismissed the appeal, finding that the trial judge went to considerable lengths to assist the appellant without improperly taking on the role of counsel.

The Court also upheld the admission of the similar fact evidence, noting there was no evidence of collusion and the incidents bore sufficient similarities to confirm the complainant's veracity.

The appellant appealed his youth court convictions for offences including forced sexual intercourse, forcible confinement, and assault with a weapon against his ex-girlfriend.

The Court of Appeal found that the trial judge made several fatal errors in assessing the evidence, including improperly excluding the appellant's spouse's testimony as hearsay, admitting highly prejudicial hearsay evidence from a police officer, and applying a double standard in assessing the credibility of the complainant versus the appellant.

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

The appellant was convicted of robbery and related offences following a second trial for a home invasion.

He appealed his convictions and his eight-year sentence, arguing that the trial judge provided inadequate jury instructions regarding his alibi defence, failed to give a sufficient Vetrovec warning for an accomplice and a perjured witness, and erred in instructions on identification and prior bad acts.

The Court of Appeal dismissed the appeal, finding the jury instructions were adequate, fair, and balanced, and that the sentence was fit given the circumstances of the offence and the appellant's record.

The appellant was charged with extortion, conspiracy to commit extortion, and threatening death.

At the preliminary inquiry, the judge discharged the appellant by drawing an inference that he was an innocent dupe who merely facilitated a meeting without knowing its purpose.

The Crown successfully applied for certiorari to quash the discharge.

On appeal, the Court of Appeal affirmed the motions judge's decision, holding that the preliminary hearing judge committed jurisdictional error by weighing competing inferences, which is the province of the trier of fact at trial.

The appellant, a Catholic priest, appealed his convictions for gross indecency and indecent assault relating to historical sexual abuse of a male complainant.

The appeal centered on the trial judge's reliance on expert evidence regarding delayed recall and recovered memory to explain discrepancies in the complainant's testimony, including the appellant's arrival date and the absence of a described birthmark.

The Court of Appeal found no error in the trial judge's use of the expert evidence, his assessment of the complainant's credibility, or his evaluation of the appellant's testimony.

The appeal was dismissed.

The appellant appealed his conviction, arguing the trial judge erred in assessing credibility and improperly used his after-the-fact conduct as positive evidence of guilt.

The Court of Appeal dismissed the appeal, finding the trial judge properly applied the W.(D.) principles, gave cogent reasons for disbelieving the appellant, and permissibly used the after-the-fact conduct as a factor in assessing overall credibility.