Howard Leibovich

The appellant was convicted of sexual assault after a 12-year-old complainant identified him in a photo line-up 28 months after being attacked in her tent at night.

The Crown's case rested entirely on this identification.

The trial judge had excluded similar fact evidence of a prior sexual assault committed by the appellant.

On appeal, the Court of Appeal found the verdict unreasonable, as the identification evidence was too weak and the trial judge misapprehended the complainant's initial description.

The majority held that the trial judge did not err in excluding the similar fact evidence, as her assessment of its prejudicial effect versus probative value was entitled to deference.

The appeal was allowed and an acquittal entered.

The appellant appealed his conviction for sexual offences and his indeterminate sentence as a dangerous offender.

He argued the trial judge erred in a Corbett application by not excluding all prior convictions for sexual offences, and by failing to put the defence of extreme intoxication to the jury.

The Court of Appeal dismissed the conviction appeal, finding no error in the Corbett ruling and noting the lack of expert evidence to support a Daviault intoxication defence.

The sentence appeal was also dismissed, as the expert psychiatric evidence offered little hope for treatment, justifying the indeterminate sentence.

The appellant was convicted of kidnapping and sexual assault following a second jury trial.

The Crown's case relied entirely on the eyewitness identification of the two teenage complainants.

The appellant appealed, arguing the verdict was unreasonable.

The Court of Appeal allowed the appeal and entered acquittals, finding significant frailties in the identification evidence, including a mishandled photo lineup, discrepancies in descriptions, and potential contamination of testimony.

Furthermore, the timeline of events described by the complainants was irreconcilable, there was no forensic evidence linking the appellant to the crimes, and the appellant presented a corroborated alibi.

The Court concluded that no properly instructed jury, acting judicially, could have reasonably convicted the appellant on the totality of the evidence.

The appellants were convicted of first-degree murder after the victim was brutally beaten and robbed in an underground parking garage.

On appeal, they argued the trial judge erred by excluding out-of-court statements from a deceased third party who had confessed to the murder, by misdirecting the jury on reasonable doubt, and by misdirecting the jury on the elements of first-degree murder based on unlawful confinement.

The Court of Appeal dismissed the appeal, finding the third party's hearsay statements lacked threshold reliability, the reasonable doubt instruction was adequate, and unlawful confinement in the course of a robbery can provide the basis for first-degree murder under s. 231(5)(e) of the Criminal Code.

The accused appealed convictions for sexual assault, invitation to sexual touching, and possession of child pornography, challenging the admission of similar fact evidence, the finding that the assault was sexual in nature, and the refusal to exclude seized pornographic material under ss. 8 and 24(2) of the Charter.

The court held that the prior misconduct evidence was properly admitted, that the assault was objectively sexual in nature based on the words accompanying the force, and that the trial judge did not err in admitting the seized evidence despite an overbroad warrant paragraph.

On the Crown's sentence appeal, the court held that the dangerous offender finding was unchallenged and that the trial judge erred in imposing a determinate sentence without evidence that the offender could be rehabilitated within a fixed period.

The determinate sentence was set aside and replaced with an indeterminate sentence.

The appellant appealed his convictions for indecent assault male, sexual assault, and buggery, relating to historical allegations of abuse against a younger relative.

The primary issue on appeal was whether the pre-Lifchus jury charge on reasonable doubt substantially complied with the principles set out by the Supreme Court of Canada.

The Court of Appeal found that the trial judge's instructions, which told the jury that 'reasonable doubt' had no special legal meaning and could be determined using their everyday life experiences, failed to locate the standard above a balance of probabilities.

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

The Crown appealed an order transferring a 17-year-old charged with second degree murder from ordinary court to youth court under the Young Offenders Act.

The appeal turned on whether the respondent had shown likely rehabilitation within the seven-year dispositional period, given psychiatric evidence of schizophrenia and possible conduct disorder.

The court held that the youth court judge misconstrued and misapplied the psychiatric evidence by making a definitive finding excluding conduct disorder despite significant evidentiary gaps.

Because the respondent failed to establish likely rehabilitation within the statutory period, the transfer order was set aside and the matter was directed to remain in ordinary court.

The appellant appealed conviction and sentence, arguing error in the admission and use of a letter, improper reliance on sexual activity evidence as bad character evidence, and unfair cross-examination.

The court held that although the Crown had no basis to tender the letter in its case in chief, no prejudice resulted because the appellant would inevitably have testified and the letter could then have been used in cross-examination.

The court further found the trial judge used the impugned evidence only in assessing credibility and not for propensity reasoning.

The appeal was dismissed.

The appellant appealed his convictions for sexual assault and unlawful confinement to the Supreme Court of Canada.

The Court dismissed the appeal from the bench, adopting the reasons of the majority of the Court of Appeal.