Howard L. Krongold

The appellant appealed his conviction for attempted murder and his designation as a dangerous offender.

He argued the trial judge failed to adequately scrutinize a police officer's testimony regarding the sound of a dry-fired handgun and reversed the onus of proof regarding his intent to kill.

The Court of Appeal dismissed the conviction appeal, finding the trial judge properly assessed the evidence and did not reverse the burden of proof.

The sentence appeal regarding the dangerous offender designation was also dismissed.

The appellant appealed his sentence, arguing the sentencing judge erred in applying the Truth in Sentencing Act to preclude 2:1 credit and in requiring a causal connection between his Aboriginal background and the offence during the Gladue analysis.

The Crown conceded these errors.

The Court of Appeal agreed that the sentencing judge would have given 2:1 credit for pre-trial custody but for the statutory error.

The appeal was allowed, and the appellant's pre-trial custody credit was increased by 17 months.

The Crown appealed a 19-month sentence imposed on the respondent, arguing it was demonstrably unfit and disproportionate to the gravity of the harm.

The Court of Appeal dismissed the appeal, finding that while the sentence was lenient, the trial judge had carefully considered all aggravating and mitigating factors, and the sentence did not amount to a marked departure from the acceptable range.

The appellant challenged convictions for internet luring and related sexual offences arising from online communications and a subsequent sexual encounter with a child complainant, arguing that he honestly but mistakenly believed the complainant was 14 and had taken sufficient steps to ascertain age.

The court held that the statutory mistake-of-age defence under ss. 172.1(4) and 150.1(4) required an objective, contextual assessment of whether a reasonable person would have taken further steps, particularly in light of numerous red flags and the complainant's mother's explicit warning that the complainant was underage.

The court found that a single initial inquiry and later reliance on the complainant's online representations were insufficient.

The appellant's sentence appeal also failed because the sentencing judge had expressly treated the lengthy and strict bail conditions as mitigating, and the global sentence of 23 months' incarceration followed by probation was fit given the grooming conduct and possession of child pornography.

The Crown brought an application for certiorari and mandamus to overturn a preliminary inquiry judge's decision to discharge the respondents on charges of first degree murder and commit them on second degree murder.

The Crown argued the judge committed jurisdictional error by weighing competing inferences, usurping the role of the trier of fact, and failing to consider the whole of the evidence regarding planning and deliberation and unlawful confinement.

The Superior Court dismissed the application, finding the preliminary inquiry judge correctly applied the test for committal and did not commit any jurisdictional error in concluding there was insufficient evidence for a properly instructed jury to return a verdict of first degree murder.

The appellant appealed his convictions and sentence.

Based on the joint position of the parties, the Court of Appeal set aside the conviction on count one and ordered a new trial.

The Crown conceded that the 18-month custodial sentence for the remaining convictions was unfit.

The Court substituted an 18-month conditional sentence, noting the appellant's employment, support for his mother, and compliance with bail conditions.

The appellant appealed his conviction for second degree murder, arguing the trial judge erred in her jury instructions regarding collusion between Crown witnesses, fabrication of alibi evidence, motive to lie, and exclusive motive to kill.

The Crown cross-appealed the sentence, seeking to increase the 13-year parole ineligibility period to 15 years.

The Court of Appeal dismissed both appeals, finding no errors in the jury instructions and concluding the trial judge engaged in a comprehensive and fair assessment of the sentencing factors.

The respondents were convicted of second degree murder after shooting the victim, who died a month later from a blood clot.

The victim had ingested cocaine shortly before death, raising a causation issue.

The trial judge failed to instruct the jury on the included offence of attempted murder.

The Supreme Court of Canada held that this was an error of law and declined to apply the curative proviso under s. 686(1)(b)(iii) of the Criminal Code, as the error could not be confidently dismissed as harmless.

The Crown's appeal was dismissed, upholding the Court of Appeal's order for a new trial.

The respondent and his partner engaged in consensual erotic asphyxiation.

The partner consented in advance to being choked into unconsciousness and to the sexual activity that would occur while she was unconscious.

The trial judge convicted the respondent of sexual assault, finding that a person cannot legally consent to sexual activity while unconscious.

The Court of Appeal overturned the conviction.

The Supreme Court of Canada allowed the Crown's appeal and restored the conviction, holding that the Criminal Code requires a conscious, operating mind throughout the sexual activity to provide valid consent, and advance consent to unconscious sexual activity is not recognized in law.