Ian R. Smith

During a trial for first-degree murder, the court held a pre-charge discussion to determine whether the lesser included offences of manslaughter and second-degree murder should be left to the jury.

The Crown argued that neither should be left, while the defence argued both should be available.

Applying the air of reality test, the court found no evidentiary foundation for manslaughter, as the forensic evidence indicated a targeted killing with no signs of a fight gone wrong.

However, the court found a gasping air of reality to second-degree murder, as a properly instructed jury could find the accused had the intent to kill but have a reasonable doubt regarding planning and deliberation.

Consequently, second-degree murder was left to the jury, but manslaughter was not.

Four appellants appealed their convictions for various offences arising from a large-scale credit card fraud and money laundering scheme operating over several years.

The appellants were convicted of fraud over $5,000, participation in a criminal organization, identity theft, possession of property obtained by crime, and money laundering.

The appellants raised multiple grounds of appeal, including challenges to the single transaction rule, sufficiency of reasons, and the legal test for criminal organization.

The Court of Appeal dismissed most appeals but quashed certain convictions against one appellant that were entered without being charged, and corrected typographical errors in the trial judgment.

The appellant appealed his conviction for aggravated assault and his designation as a dangerous offender.

The conviction was based on the appellant's assault of a bar patron with a pool cue, causing serious and permanent injuries.

The appellant challenged the trial judge's acceptance of the bar owner's identification evidence and the trial judge's conclusion that the appellant admitted to the assault.

The appellant also challenged the dangerous offender designation, arguing that the two incidents relied upon did not constitute a sufficient pattern of repetitive or persistent aggressive behaviour.

The Court of Appeal dismissed both the conviction appeal and the sentence appeal, finding no error in the trial judge's findings of fact or application of law.

The appellant appealed his convictions for robbery with a firearm and possession of a restricted firearm.

He raised two grounds of appeal: (1) that the trial judge erred in finding his statement voluntary, arguing police threatened to charge his girlfriend with possession of the gun in exchange for his cooperation; and (2) that the trial judge erred in refusing to exclude evidence resulting from a section 8 Charter breach under section 24(2) of the Charter.

The Court of Appeal upheld the trial judge's credibility findings regarding the voluntariness of the statement and found no error in the trial judge's balanced application of the three-prong test from R. v. Grant in determining admissibility of the evidence.

The conviction appeal was dismissed.

The appellant appealed both conviction and sentence for drug importation.

The appellant challenged the jury selection process as unrepresentative, argued he was prejudiced by the jury's lack of knowledge of his custodial status during trial, and contended the police failed to properly investigate matters raised in his defence.

The Court of Appeal rejected all grounds of appeal regarding conviction.

The appellant also argued his 13-year sentence (less 2 years 3 months pre-sentence custody credit) for importing 1.98 kg of street-ready heroin was unduly harsh.

The court found no error in the trial judge's sentencing determination and dismissed the sentence appeal.

The appellant appealed his conviction for possession of cocaine for the purpose of trafficking and possession of proceeds of crime, and sought leave to appeal his sentence of five years' imprisonment less nine months' credit for restrictive bail conditions.

The appeal raised four grounds challenging the trial judge's disposition of a Garofoli application regarding the legality of a search warrant: whether the ITO established reasonable and probable grounds for a firearm offence, whether the trial judge erred in refusing leave to cross-examine the ITO affiant, whether the conditions for a telewarrant were satisfied, and whether the CI's information was sufficiently corroborated.

The Court of Appeal dismissed both the conviction appeal and the sentence appeal.

The appellant appealed a sentence imposed by the trial judge for aggravated sexual assault, sexual interference, assault with a weapon, assault, and uttering a death threat.

The central issue was whether the trial judge had jurisdiction to issue a new Warrant of Committal four months after sentencing to correct a mathematical error in converting the sentence from years to months.

The trial judge had imposed a global sentence of 6.5 years but the Warrant of Committal incorrectly stated 66 months.

The Court of Appeal upheld the trial judge's authority to correct the error, finding that the judge's intention was manifest and that no reconsideration of the sentence was required.

The moving party, a dental surgeon, sought a stay of the revocation of his licence pending his appeal of a Discipline Committee decision finding him guilty of professional misconduct and sexual abuse of a patient.

The court applied the three-part test for a stay.

The court found that while there were weak but arguable grounds regarding the existence of a doctor-patient relationship at the time of one incident, the overwhelming evidence of subsequent sexual abuse made a finding of misconduct and a period of suspension inevitable.

As the moving party would not suffer irreparable harm by beginning to serve an inevitable suspension, the motion for a stay was dismissed.

The appellant appealed his conviction for first-degree murder, which was largely based on a confession obtained during a 'Mr. Big' undercover operation.

During the retrial, the Crown introduced highly prejudicial bad character evidence regarding a separate, severed murder charge.

The Court of Appeal found that the trial judge's charge to the jury was deficient, particularly regarding motive and confirmatory evidence, and failed to present the defence's position fairly.

The appeal was allowed and a new trial was ordered.

The appellant appealed his convictions for first-degree murder and attempted murder.

Representing himself, he argued through amici curiae that the trial judge erred by refusing to allow him to call three witnesses and by inadequately charging the jury on a potentially exculpatory statement.

The Court of Appeal dismissed the appeal, finding the trial judge properly exercised his gatekeeper function regarding the witnesses, as the appellant refused to explain their relevance.

The court also held that the trial judge adequately instructed the jury on the appellant's statement that the first shot was a mistake.

The Crown appealed a 90-day intermittent sentence imposed on the respondent for using an imitation firearm during a bank robbery, arguing it fell below the mandatory minimum of one year under s. 85(3) of the Criminal Code.

The respondent conceded the sentence was illegal.

The Court of Appeal imposed the mandatory minimum sentence of 12 months.

However, considering the respondent's youth, rehabilitation, restitution, and the time already served, the Court permanently stayed the execution of the sentence, declining to re-incarcerate him.

The appellant was convicted of second degree murder for the death of his domestic partner, whose body was never found.

The Crown's case relied heavily on the testimony of the appellant's sister, to whom he confessed and who helped him dispose of evidence.

On appeal, the appellant argued the verdict was unreasonable, the jury instructions were flawed regarding post-offence conduct, his confession, the lack of a Vetrovec warning, and the manslaughter charge, and that a mistrial should have been ordered due to prejudicial evidence.

The Court of Appeal dismissed the appeal, finding the verdict reasonable and the trial judge's instructions and mid-trial cautions adequate to ensure a fair trial.

The appellants were convicted of numerous fraud-related offences arising from a widespread credit and debit card skimming scheme operated through a storefront business.

Three of the appellants were also convicted of participating in and committing offences for the benefit of a criminal organization.

On appeal, they challenged the admission of wiretap evidence, the finding that they constituted a criminal organization, and various individual convictions.

The Court of Appeal dismissed the conviction appeals, finding the wiretap authorization was properly granted and the group met the statutory definition of a criminal organization.

The sentence appeals of the two principal offenders were dismissed, while the sentences of the two lesser offenders were varied in part.

The appellant, a fuel delivery truck driver, was convicted of fraud and theft based on GPS and machine-generated delivery records suggesting he delivered fuel to a third party instead of his employer's customers.

He appealed his convictions.

The Court of Appeal allowed the appeal and entered acquittals, finding the trial judge erred by failing to explain why potentially exculpatory signed delivery acknowledgements did not raise a reasonable doubt.

Furthermore, the Crown failed to prove that the GPS and delivery slip systems were time-synchronized, rendering the records unreliable.

The appellant appealed his sentence, seeking enhanced credit for pre-trial custody.

The sentencing judge had granted 1.5:1 credit for only some of the time served, noting poor facility conditions and loss of parole eligibility.

Applying the Supreme Court's decision in Summers, the Court of Appeal held that enhanced credit is the norm and varied the sentence to allow 1.5:1 credit for all time spent in pre-trial custody.

The appellant was convicted of multiple fraud-related offences arising from a credit and debit card scheme.

At trial, the Crown relied heavily on the testimony of four former co-accused who had previously pled guilty based on agreed statements of fact implicating the appellant.

When these witnesses recanted their statements at trial, the trial judge admitted their prior statements for the truth of their contents under the K.G.B. framework.

The appellant appealed, arguing the statements should not have been admitted and that the trial judge's Vetrovec warning was inadequate.

The Court of Appeal held that while the statements met the test for threshold reliability, the Vetrovec warning failed to adequately explain to the jury the witnesses' strong motives to lie in their prior statements to obtain lenient sentences.

The appeal was allowed and a new trial ordered.

The appellant appealed his convictions and 7.5-year sentence for four bank robberies and related firearms offences.

He argued the trial judge erred in accepting eyewitness identification from four bank tellers and recognition evidence from a police officer, citing discrepancies and flawed photo line-up procedures.

The Court of Appeal dismissed the conviction appeal, finding the trial judge properly applied the criteria for assessing photo identification evidence and was alive to the frailties of eyewitness testimony.

The sentence appeal was also dismissed, as the sentence was within the appropriate range and the trial judge did not err in applying the totality principle to the mandatory consecutive sentences.

The appellant appealed a firearm conviction and sentence arising from multiple firearm-related offences.

The court held that the evidentiary record did not establish knowledge that the firearm had been obtained by the commission of an offence, and therefore the conviction under s. 96(2) could not stand.

On sentence, the respondent conceded reassessment was required in light of appellate authority concerning firearm sentencing.

The court quashed the s. 96(2) conviction and reduced the firearm sentences, while imposing an eight-month consecutive sentence on the s. 117.01(3) count.

The Crown appealed a jury acquittal on a charge of second degree murder arising from a fatal stabbing in a motor vehicle, arguing that the trial judge improperly instructed the jury on reflex and voluntariness.

The Court of Appeal held there was no evidentiary foundation for a defence of involuntary reflex and that the impugned instruction was erroneous.

However, applying the governing standard for Crown appeals from acquittals, the court found no reasonable basis to conclude the error materially affected the verdict in light of the defence theory, the evidence, the overall charge, and the jury questions.

The appeal was therefore dismissed.

The respondent Board brought a motion for directions in advance of an appeal, seeking to redact personal and confidential information concerning the victim from both its Reasons and the Hearing Brief.

The appellant, who was found by the Board to have sexually assaulted the victim, opposed the redactions.

The Divisional Court held that the Board must provide an unredacted copy of its Reasons to ensure transparency and procedural fairness, but upheld the majority of the redactions in the Hearing Brief to protect the victim's privacy interests.