Howard Piafsky

The appellant, Rapinder Bains, appealed convictions for drug-related offences, arguing that the trial judge erred by applying a less onerous standard for entrapment.

The Court of Appeal found no error in the trial judge’s approach, holding that it was open to the trial judge to infer from the Agreed Statement of Facts that the officer had the requisite subjective belief to proceed.

The appeal and the sentence appeal were both dismissed.

The appellant, Jason Heath, appealed his conviction for importing cocaine, arguing the trial judge erred in jury instructions on demeanour evidence and the right to silence, and failed to correct speculative Crown closing arguments.

The central issue at his trial was whether he was acting under duress.

The Court of Appeal dismissed the appeal, finding the trial judge's instructions were balanced and legally correct, particularly regarding the modified right to silence at borders under the Customs Act.

The court also found the Crown's closing arguments were permissible inferences from evidence, not speculation.

The applicant, Fitzroy Allen, sought bail pending appeal of his convictions for conspiracy to import cocaine, possession for the purpose of trafficking, and conspiracy to possess cocaine for the purpose of trafficking, for which he received a 7-year concurrent sentence.

The motion judge dismissed the application, finding that while the appeal was not frivolous and the applicant would surrender, his detention was necessary in the public interest.

The court balanced the enforceability of the judgment against the reviewability of the conviction, concluding that the seriousness of the crime and the weakness of the appeal grounds outweighed the reviewability interest, and a reasonable member of the public would lose confidence in the administration of justice if bail were granted.

The appellant, Joseph Grant-Stuart, appealed his conviction for importing cocaine and possessing it for the purpose of trafficking, and sought leave to appeal his nine-year sentence.

The conviction appeal argued errors in the trial judge's response to a jury question on reasonable doubt and improper Crown closing submissions.

The sentence appeal argued the sentence was unfit due to insufficient weight given to mitigating factors like age and health.

The Court of Appeal dismissed both the conviction and sentence appeals, finding no reversible error in the trial judge's jury instructions or the Crown's submissions, and that the sentence was fit and within the appropriate range for drug importing cases.

The appellants, Ting Lin and Shuhao Shi, appealed their convictions for unlawful possession of a Class A precursor (GBL) for producing a controlled substance (GHB) and unlawfully possessing ketamine for trafficking.

They also sought leave to appeal their sentences of six years imprisonment.

The primary ground of appeal was the trial judge's alleged error in failing to instruct the jury on the defence of honest but mistaken belief that their activities were authorized.

The Court of Appeal dismissed the appeals, holding that the Crown is not required to prove an accused's knowledge that their possession was unauthorized, as this would amount to proving knowledge of the law, contrary to s. 19 of the Criminal Code and s. 48(2) of the Controlled Drugs and Substances Act.

The court found no air of reality to the mistake of fact defence based on the evidence.

Leave to appeal sentences was granted, but the appeals were dismissed as the sentences were not demonstrably unfit.

The applicant, charged with offences under the Security of Information Act for allegedly attempting to communicate safeguarded information to a foreign entity, brought an application to stay the proceedings due to unreasonable delay under s. 11(b) of the Charter.

The prosecution had been ongoing for over eight years, complicated by extensive litigation over national security privilege under s. 38 of the Canada Evidence Act regarding a CSIS warrant.

The court applied the Jordan framework, calculating the total delay and subtracting defence delay and discrete exceptional events, including the time taken for the national security litigation and the COVID-19 pandemic.

The court found that the remaining delay of over 40 months significantly exceeded the 30-month presumptive ceiling and that the case was not particularly complex.

Consequently, the court held that the applicant's s. 11(b) rights were breached and ordered a stay of proceedings.

The applicant, charged under the Security of Information Act, brought a motion to exclude evidence obtained from an undercover operation pursuant to s. 24(2) of the Charter.

The applicant argued that the evidence was derived from a CSIS wiretap warrant that violated his s. 8 Charter rights due to a lack of candour by the affiant.

The court assumed a s. 8 breach had occurred but applied the Grant factors and concluded that the breach was not at the most serious end of the scale, the impact on the applicant's rights was diminished by several factors, and society's interest in adjudicating the serious national security charges on their merits was exceptionally high.

The motion to exclude the evidence was dismissed.

The Crown appealed the acquittal of the respondent, Francis Norman, on charges of drug trafficking and breach of probation.

Norman had conceded smuggling drugs into a correctional centre but claimed duress due to threats against him and his brother by another inmate.

The trial judge found an air of reality to the duress defence and that the Crown failed to disprove it.

The Crown argued the trial judge erred in finding an air of reality to the "no safe avenue of escape" element, given Norman's opportunities to seek help.

The Court of Appeal dismissed the appeal, finding no error in the trial judge's application of the modified objective standard for duress, considering the specific circumstances of the prison environment and the threats to the respondent and his brother.

The applicant, charged under the Security of Information Act, brought an application for a stay of proceedings under s. 38.14 of the Canada Evidence Act.

He argued that his right to a fair trial was compromised because relevant information in a CSIS wiretap affidavit was withheld from him due to an Attorney General's certificate, preventing him from making full answer and defence on a s. 24(2) Charter application.

The court found that while the judicial editing process was fair, the Attorney General's unreviewable redactions of relevant information adversely affected trial fairness by precluding a subfacial challenge to the warrant.

Instead of a stay, the court fashioned a lesser remedy, declaring a s. 8 Charter breach and directing that the reviewing judge assume the affidavit contained false or misleading information.

The Crown brought an application for a sealing order and to hold part of the proceedings in camera regarding charges under the Security of Information Act.

The charges stemmed from intercepted telephone calls to a foreign embassy.

The Crown sought to prevent public disclosure of a redacted CSIS affidavit and warrant, arguing it would injure Canada's international relations.

Applying the Dagenais/Mentuck test, the court found that the orders were necessary to prevent a serious risk to the proper administration of justice and that the salutary effects outweighed the deleterious effects on the open court principle.

The application was granted.

The appellant appealed her conviction for attempting to possess heroin for the purpose of trafficking and her sentence of 9 years imprisonment (less 36 days credit for pre-trial custody).

The conviction arose from the appellant's pickup of a shipment containing 3.3 kilograms of heroin that had been intercepted at Pearson International Airport and replaced with a control sample by police.

The appellant challenged the conviction on grounds of misapprehension of evidence and unreasonableness of verdict, and sought sentence reduction based on alleged errors in principle.

The Court of Appeal dismissed both appeals, finding the trial judge's findings of fact and sentencing decision to be reasonable and fit.

The appellant was acquitted of importing cocaine but convicted of conspiracy to import cocaine and possession of cocaine for the purpose of trafficking in connection with a 112-kilogram cocaine shipment from Guyana.

He was sentenced to 17 years concurrent on each count.

On appeal, the appellant challenged the legal basis for the conspiracy conviction, the admissibility of overheard utterances, and the fitness of the sentence.

The Court of Appeal dismissed the conviction appeal but granted leave to appeal sentence and reduced it to 15 years concurrent, finding the trial judge erred in treating the appellant's level of participation as equal to that of the primary importer.

The appellant was convicted of possession of crack cocaine and fentanyl for the purpose of trafficking following two field strip searches conducted by police in a motel room.

The appellant appealed on the ground that the strip searches violated his Charter rights under section 8.

The Court of Appeal found that both strip searches violated the appellant's section 8 rights because they were conducted in the field rather than at a police station, and the Crown failed to establish exigent circumstances justifying the field searches.

However, the Court of Appeal did not exclude the evidence under section 24(2) of the Charter, finding that admission of the evidence would not bring the administration of justice into disrepute.

The appeal was dismissed.

The Crown appealed an acquittal on drug charges.

The trial judge had acquitted the accused on the basis that there was no forensic evidence connecting the accused to illicit items in a safe, concluding that the accused lacked the requisite knowledge of the presence of drugs.

The Court of Appeal held that this was an error of law, as constructive possession can be proven by circumstantial evidence without forensic evidence.

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

Crown appeal from an acquittal on a charge of possession of narcotics for the purpose of trafficking.

The trial judge erred in law by confining his analysis to exclusive possession and failing to consider joint possession as an alternative issue raised by the facts and submissions of trial counsel.

The Court of Appeal allowed the appeal, set aside the acquittal, and ordered a new trial.

The applicant, charged with attempting to communicate safeguarded information and preparatory acts under the Security of Information Act, brought a motion challenging the constitutionality of s. 22(1)(c) of the Act.

He argued that the provision violates s. 7 of the Charter by being unconstitutionally overbroad unless interpreted to require an objectively reasonable possibility of committing the underlying offence.

The court dismissed the application, finding that the provision does not cast an unconstitutionally wide net, as the Attorney General's consent is required for prosecution and the de minimis threshold would insulate an accused from guilt based on mere criminal ideation.

The appellant was convicted of possession of controlled substances and possession for the purpose of trafficking based on evidence seized from his residence and vehicle pursuant to search warrants.

The central fact in the Information to Obtain (ITO) supporting the warrants was false: the police believed the appellant had sent a text message setting up a drug transaction, but it was actually sent by an employee.

The trial judge dismissed the appellant's Charter s. 8 application.

On appeal, the Court of Appeal found the search warrants invalid, as the false information was the central basis for the residence search, and the remaining evidence was insufficient.

The court also found the warrant overbroad and the execution improper.

Applying s. 24(2) of the Charter, the court excluded the evidence and set aside the convictions.

The applicant sought costs against the Crown under s. 24(1) of the Charter, alleging misconduct for failing to disclose a police report related to officer misconduct.

The Crown brought a motion to summarily dismiss the costs application.

The court found no evidence of mala fides or intentional suppression of evidence by the Crown.

At most, the Crown made a good faith error in judgment regarding the relevance of the report.

The court concluded that the costs application had no reasonable prospect of success and granted the Crown's motion to dismiss it.

The Court allowed the appeal, set aside the conviction, and ordered a new trial because errors in assessing the defence and credibility caused a miscarriage of justice.