Janelle Mercury Belton

Two appellants convicted of first degree murder following a home invasion robbery during which the victim was fatally shot appealed their convictions.

The first appellant, found to be the principal shooter, raised grounds including failure to consider defence of a third party, insufficient findings on forcible confinement, and reliance on inadmissible hearsay for identification.

The Court of Appeal dismissed his appeal, finding no air of reality to the defence, that the evidence supported his participation in forcible confinement as a joint principal, and that the identification evidence was not hearsay.

The second appellant successfully argued that the trial judge applied an objective rather than subjective mens rea standard under s. 21(2) of the Criminal Code for party liability for murder.

The Crown conceded the error.

The murder conviction was set aside and a conviction for manslaughter substituted, with a sentence equivalent to 12 years imposed.

The Ontario Court of Justice sentenced Marlon Johnson for possession of a loaded prohibited firearm, possession of a prohibited firearm knowing possession was unauthorized, and possession of a firearm contrary to a prohibition order.

The court carefully considered the gravity of the offences, the offender’s background including systemic anti-Black racism, and the principles of sentencing such as denunciation, deterrence, restraint, and proportionality.

The court found Mr. Johnson’s moral blameworthiness somewhat diminished due to social context factors but emphasized the serious public safety risks posed by the offences.

The sentence imposed was 35 months and 15 days for the primary offence, 24 months concurrent for the second, and 9 months consecutive for the prohibition breach, totaling 44 months and 15 days custody.

The defendant, Kelvon Clarke, was charged with possession of fentanyl for the purpose of trafficking and possession of proceeds of crime not exceeding $5,000.

Police executed a search warrant at an apartment, finding controlled substances and cash.

The Crown's case was circumstantial, relying on video evidence showing Clarke entering the building with a distinctive purple bag, which was later found in the apartment containing the bulk of the drugs.

The court found Clarke guilty, concluding that the only reasonable inference based on the totality of the evidence was his knowledge and control of the drugs, either through physical possession, constructive possession, joint possession, or aiding.

The applicants, Jide Animashaun and Marlon Johnson, challenged a search warrant for their cell phones and sought to exclude a firearm and cell phone data under s.24(2) of the Charter.

They argued the initial phone seizure was unlawful, the Information to Obtain (ITO) contained errors, the searches were conducted outside the authorized timeframe, and police conduct subverted the pre-authorization process.

The court found the initial seizure lawful, addressed errors in the ITO through excision and amplification, and determined the phone extractions were not outside the authorized timeframe.

The application was dismissed as no Charter violations were established.

The appellant, Elias Gibb, appealed his conviction for second-degree murder, raising three grounds: the constitutionality of the Criminal Code's provocation provision (s. 232(2)), the trial judge's failure to provide a free-standing instruction on intoxication's impact on mens rea for murder, and an error in the W.D. instruction for co-accused.

The Court of Appeal dismissed the constitutional challenge based on a companion case.

Regarding intoxication, the court found no error, noting the defence strategically chose to integrate intoxication into the provocation defence rather than seeking a separate instruction.

The court also found that while the W.D. instruction was imperfect in its wording, it did not lead to an unfair verdict when read in context, as the jury was otherwise properly instructed on separate verdicts for each accused.

The appeal was dismissed.

The applicant, J.C., sought bail pending appeal after being convicted of sexual assault, sexual interference, and accessing child pornography, and sentenced to 6.5 years' imprisonment.

The court applied the three-part test under s. 679(3) of the Criminal Code: whether the appeal is frivolous, whether the applicant will surrender into custody, and whether detention is necessary in the public interest.

While the appeal was deemed not frivolous and the surrender condition met, the court found that the public confidence ground was engaged due to the gravity of the offences and the lengthy sentence.

The applicant's grounds of appeal were assessed as weak, and the enforceability considerations strongly outweighed the reviewability factors.

The application for bail pending appeal was dismissed.

The applicant, charged with two counts of first-degree murder and one count of attempted murder, challenged a judicially authorized wiretap warrant, arguing it violated his s. 8 Charter rights due to alleged material omissions and misrepresentations in the Information to Obtain (ITO).

Specifically, he contended that the ITO failed to disclose his home address and house arrest status, which would have provided an innocent explanation for his mobile phone's location near the crime scenes.

The court dismissed the application, finding that the applicant's address was in fact present in the ITO, albeit not explicitly referenced in the mobile phone section, and that any omission was not deliberate.

The court concluded that even considering the omitted information, the totality of the evidence, particularly the coordinated movement and contact between the applicant's and a co-perpetrator's phones, provided sufficient grounds for the warrant's issuance.

The appellant appealed his five-year global sentence for drug and firearm offences, arguing the sentencing judge erred by exceeding the Crown's four-year proposal without notice or reasons.

The Court of Appeal held that a sentencing judge must notify counsel and provide clear reasons when intending to impose a sentence higher than the Crown's proposal, even in the absence of a joint submission.

Finding an error in principle that impacted the sentence, the Court allowed the appeal and substituted a four-year sentence.

The appellant was convicted of first degree murder in the shooting death of Keith Brissett.

On appeal, the appellant challenged the trial judge's jury instructions on four grounds: (1) the instruction on the use of a KGB statement containing hearsay evidence of motive; (2) the provision of Vetrovec warnings regarding two disreputable witnesses despite defence objection; (3) the handling of third party suspect evidence regarding Curtis Murray; and (4) the treatment of eyewitness evidence regarding the shooter's skin colour.

The Court of Appeal dismissed all grounds of appeal, finding the trial judge's instructions were legally sound and fair.

The appellant appealed his conviction on two counts of sexual assault against his step-granddaughter.

The trial judge found that the appellant sexually assaulted the complainant on multiple visits over a nine-year period, characterizing the assaults as part of an ongoing course of conduct.

The complainant acquiesced to the appellant's demands out of fear and therefore did not consent.

The appellant raised two grounds of appeal: that the trial judge reversed the burden of proof by drawing a negative inference from the absence of medical evidence regarding the appellant's physical capability, and that the trial judge failed to apply the third step of the W.(D) test.

The Court of Appeal dismissed both grounds and upheld the conviction.

The Crown appealed a 90-day intermittent sentence imposed following a guilty plea to production of marijuana and fraudulent consumption of electricity.

The sentencing judge imposed the minimal sentence based on personal views regarding the impending legalization of marijuana, without addressing proper sentencing principles.

The appellate court found the sentencing judge erred in principle by failing to provide adequate reasons and imposed an unfit sentence.

The court allowed the appeal and imposed an 18-month sentence with execution stayed, finding that specific deterrence and rehabilitation had been met and that re-incarceration would not be in the interests of justice.

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

The complainant, a child, testified at trial but became unresponsive during cross-examination and refused to answer defence counsel's questions.

The trial judge declined to declare a mistrial or grant a stay of proceedings, instead admitting the complainant's testimony from the preliminary inquiry and providing a cautionary jury instruction regarding the absence of cross-examination.

The appellant appealed on two grounds: (1) that the trial judge erred in not declaring a mistrial, and (2) that the trial judge erred in excluding expert evidence regarding false subjective memory in children.

The Court of Appeal upheld the conviction, finding that the trial judge properly exercised his discretion to balance the accused's right to make a full answer and defence with the special needs of a young witness in a sexual abuse case.