Jennifer K. Penman

The defendant, O'Neal Spalding, pleaded guilty to manslaughter in relation to a fatal shooting during a planned home invasion robbery.

The Crown sought a 14-15 year sentence, while the defence sought 7 years or time served.

The court considered aggravating factors, including the planned armed home invasion, the defendant's leadership role, his criminal record, and the devastating victim impact.

Mitigating factors included the guilty plea, remorse, difficult background, experience of racism, mental health issues, and strong community support.

The court also addressed the impact of pre-sentence custody conditions, including lockdowns.

The court imposed a sentence of 9.5 years in custody, less 1449 days for pre-sentence credit, along with a DNA order, lifetime weapons prohibition, and a non-communication order.

The appellant, Rayon Williams, appealed his convictions for possession of controlled substances for the purpose of trafficking, raising three grounds: errors in finding no ss. 9 and 8 Charter breaches regarding his arrest and vehicle search, and an error in jury instruction concerning sunglasses found with the drugs.

The Court of Appeal dismissed the appeal, finding the trial judge correctly determined reasonable and probable grounds for the arrest and search based on corroborated confidential informant information and police investigation.

The court also found no error in the jury instruction, as the sunglasses issue was not central and lacked sufficient evidentiary support.

The appellant was convicted of two counts of first-degree murder after a retrial.

He appealed his conviction on three grounds: the application judge erred by dismissing the application to admit hearsay for a third-party suspect, the trial judge failed to give a sufficient corrective instruction regarding the Crown’s prejudicial closing argument, and the trial judge erred by charging the jury on party liability without factual foundation.

The Court of Appeal dismissed the appeal, finding no error in the application judge's hearsay ruling, the trial judge's handling of the Crown's closing, or the party liability instruction, which was found to have an evidentiary basis and was akin to co-principal liability.

A dissenting judge would have allowed the appeal on the party liability issue, arguing insufficient evidentiary foundation and inadequate jury instructions.

This ruling addresses the admissibility of hearsay statements made by a deceased victim, Alan Rutherford, identifying his assailant in a first-degree murder case.

The Crown sought to admit these statements as dying declarations and spontaneous utterances.

The defence challenged their reliability due to inconsistencies among witnesses and a minor factual error by the declarant.

The court found that the statements met the criteria for both traditional hearsay exceptions and the principled approach, concluding that the defence's objections went to the weight of the evidence rather than its threshold admissibility.

The Crown's application to admit the statements was granted.

This ruling addresses an application by an accused, charged with two counts of first-degree murder, to sit at counsel table during trial.

The court outlines twelve principles governing such applications, emphasizing a balance between the accused's right to a fair trial, the presumption of innocence, and courtroom security.

The court rejects the notion that the defence bears an onus to show exceptional circumstances.

Applying these principles, the court grants the application, permitting the accused to sit at counsel table, subject to being restrained by silent ankle shackles and appropriate security placement.

The appellant, Pierre Aragon, appealed his convictions for aggravated assault, assault with a weapon, possessing a weapon, and uttering a threat, and his indeterminate dangerous offender sentence.

The convictions stemmed from a 2012 beating of Fernando Fernandes, a Loners Motorcycle Club associate, by members of a rival group.

The Court of Appeal dismissed the conviction appeal, finding the recognition evidence and extrinsic discreditable conduct evidence properly admitted.

However, the Court allowed the sentence appeal, concluding that the sentencing judge erred in identifying aggravating factors and failed to provide sufficient reasons for several rulings, including the decision to recall witnesses and the constitutional challenge.

The sentence was set aside, and a new sentencing hearing was ordered before a different judge.

The appellants, Darko Stojanovski and Daniel Stojanovski, appealed their convictions for attempted murder and their 18-year sentences.

The central issues included the adequacy of jury instructions on party liability (aiding), the introduction of alternative Crown theories, the use of prior consistent statements for identification, and the appropriateness of the sentences.

The majority dismissed both the conviction and sentence appeals, finding the jury charge adequate and the sentences fit.

A dissenting judge would have allowed Darko's conviction appeal, arguing the jury instruction on the specific intent required for attempted murder by aiding was insufficient and misleading.

The accused, M.J.I., sought a detention review under s. 525 of the Criminal Code, arguing that the initial detention order was inappropriate, the proposed release plan was strengthened, and the COVID-19 pandemic constituted a material change in circumstances.

The court found no error in the initial detention and deemed the revised release plan insufficient on its own.

However, considering the accused's serious injuries, restricted mobility, asthma, and increased vulnerability to COVID-19 in custody, the court determined that his continued detention was not necessary to maintain public confidence in the administration of justice.

M.J.I. was ordered released on house arrest with three sureties and electronic monitoring, subject to specific conditions.

The applicant sought to exclude evidence (a loaded handgun, ammunition, and illegal drugs) found during a vehicle search incident to arrest and a subsequent strip search at the police station, alleging violations of section 8 of the Canadian Charter of Rights and Freedoms.

The court dismissed the application, finding both the vehicle search (justified as incident to arrest and an inventory search) and the strip search (justified as incident to arrest and for custodial safety) were lawful.

The court also upheld the validity of the telewarrants used for a later search of the vehicle, finding the grounds for their issuance and the resort to the telewarrant process were reasonable.

The accused, Abdirisaq Yabarow, facing a charge of second-degree murder, brought a motion seeking to admit an exculpatory statement he made to an acquaintance, Mohamed Khalinle, or to compel the Crown to lead this statement as part of its case.

The statement included a claim of self-defence.

The court considered the established exceptions to the rule against self-serving statements, including mixed statements and spontaneous statements.

The court found that the Khalinle statement did not qualify as a mixed statement because it was separate from other inculpatory statements adduced by the Crown, lacking a sufficient nexus.

It also did not meet the criteria for a spontaneous statement, as it was made after ample time for consideration and not upon confrontation with an accusation.

Consequently, the court ruled the exculpatory statement inadmissible at the instance of the accused and refused to compel the Crown to lead it, affirming the Crown's discretion in calling witnesses and the principle against self-serving evidence.

The accused, Abdirizaq Yabarow, was charged with second-degree murder.

The Crown brought an application to determine the voluntariness and admissibility of two statements made by the accused.

The first statement was made to paramedics and police on October 4, 2017, when the accused was perceived as a victim seeking help for injuries.

The second statement was made to homicide detectives on October 6, 2017, following his arrest for murder.

The court found that the paramedics were not persons in authority and that the first statement was voluntary and admissible.

Regarding the second statement, the court determined it was voluntary and admissible up to the point where the accused expressed confusion and requested a rest, but any statements made thereafter were inadmissible as police questioning should have ceased at that juncture.

The court declined to exercise its discretion to exclude the voluntary portions of either statement.

In a second-degree murder trial, the Crown applied to admit three graphic autopsy photographs of the deceased.

The defence opposed, citing prejudicial effect and proposing alternatives such as limiting the number of photographs or presenting them in black and white.

The court applied the balancing test of probative value versus prejudicial effect, finding the photographs highly relevant to central issues including intent, self-defence, and a potential third-party suspect theory.

The court emphasized that modern juries are capable of dispassionate evaluation and concluded that the significant probative value of the photographs strongly outweighed any potential prejudicial effect.

The court declined to exercise its discretion to limit the photographs, as doing so would undermine their evidentiary purpose.

The Crown's application was granted, allowing the introduction of all three full-colour autopsy photographs.

The accused, charged with second-degree murder, brought an application to quash a search warrant and production order related to his electronic devices (cell phone and tablet) and to exclude evidence under s. 24(1) and (2) of the Canadian Charter of Rights and Freedoms.

The application challenged the facial and subfacial validity of the orders, alleging a lack of reasonable grounds, overbreadth, material non-disclosure in the supporting information, and improper execution of the warrant outside the authorized time period.

The court dismissed the application, finding that reasonable grounds for the orders existed, there was no material non-disclosure that vitiated the authorizations, and the forensic examination of the devices was not required to be completed within the search and seizure period stipulated in the warrant, but rather was governed by the Criminal Code's detention regime.

The Crown sought to admit utterances made by the accused, Najib Amin, during an undercover police operation in his first-degree murder trial.

The defence opposed admission, citing principles from R. v. Hart.

The court, applying the Hart factors as a framework, found the utterances admissible, concluding that their probative value outweighed any prejudicial effect and that police conduct did not constitute an abuse of process.

The ruling specifically addressed four categories of utterances, finding them all admissible with one requiring a specific instruction to mitigate prejudice.

The defendant, Courtney Salmon, was found guilty by a jury of human trafficking, receiving material benefit from human trafficking, procuring/exercising control, and receiving material benefit from sexual services for consideration.

The Crown sought a global sentence of ten years of incarceration, while the defence proposed five years.

The court applied sentencing principles, considered aggravating and mitigating factors, and utilized the "whole panoply of factors" from R. v. Tang and R. v. Miller to assess the seriousness of the human trafficking offences.

The court conditionally stayed counts for procuring/exercising control and receiving material benefit from sexual services under the Kienapple rule, finding a sufficient factual and legal nexus with the human trafficking charges.

A global sentence of six years of incarceration was imposed for the remaining counts, to be served concurrently.

The court also applied pre-trial custody credits, including additional credits for harsh conditions (Duncan) and strict bail (Downes).

Ancillary orders included a non-communication order, DNA sample, lifetime weapons prohibition, forfeiture of electronic devices, and 20 years registration under the Sex Offender Information Registration Act.

Appeal from conviction on five counts of sexual assault under s. 271 of the Criminal Code and one count of sexual exploitation under s. 153.

The appellant, a modeling agent, was convicted of sexual offences against three male models.

The jury was unable to reach a verdict on one count.

The appellant raised multiple grounds of appeal including failure to grant severance, failure to declare a mistrial, directed verdict applications, prior consistent statements, and Crown closing address issues.

The Court of Appeal dismissed all grounds of appeal and upheld the convictions.

The applicant, charged with second-degree murder, sought to exclude a videotaped statement made to police, alleging a breach of her s. 10(b) Charter right to consult counsel without delay.

The court found a minor s. 10(b) breach due to a police officer's general practice of not facilitating counsel contact at the hospital.

However, the court determined that the subsequent statement was not obtained as a consequence of the breach, as there was a "fresh start" after the applicant consulted duty counsel, and the applicant would have spoken to the police regardless.

Applying the Grant factors, the court concluded that the breach was minor, had no impact on the applicant's Charter-protected interests, and society's interest in a trial on the merits favored inclusion.

The statement was ruled admissible.

The accused pleaded guilty to four serious offences: making child pornography, possessing child pornography, sexual assault, and counselling a person under 16 to touch her with an object.

The offences involved her very young son and were discovered through international cooperation between American and Canadian authorities.

The Crown sought a long-term offender designation and a sentence of six to eight years.

The defence sought a five-year sentence with no long-term offender order.

The court imposed a six-year sentence (apportioned as 3.5 years for sexual assault concurrent with 3.5 years for invitation to sexual touching, 2.5 years consecutive for making child pornography, and 2 years concurrent for possession of child pornography) and declined to impose a long-term offender designation, finding the accused posed a low risk of reoffending based on psychiatric evidence.

At a preliminary inquiry, the Crown sought to introduce a video statement from witness Jason Cotterell, who did not testify, as an exception to the hearsay rule.

The Crown argued the statement met the criteria of necessity and threshold reliability.

The court found that while portions of the statement describing events after the robbery were sufficiently corroborated by video evidence and a recovered projectile to meet the threshold reliability test, the Crown failed to establish necessity.

The police did not make reasonable efforts to secure the witness's attendance, waiting two months before attempting service and failing to pursue available contact methods such as Instagram or the witness's known contacts.

The statement was ruled inadmissible.

The appellant appealed his conviction for aggravated assault, assault with a weapon, and possession of a weapon for a purpose dangerous to the public peace, as well as his sentence.

The offences occurred at a detention centre where the appellant and three co-accused attacked a fellow inmate in his cell.

The appellant argued the trial judge erred by drawing inferences to fill evidentiary gaps regarding what occurred inside the cell where there was no video surveillance.

The Court of Appeal upheld the conviction for aggravated assault but set aside the convictions for assault with a weapon and possession of a weapon for a purpose dangerous to the public peace on the basis of the Kienapple principle.

The Court also found the trial judge erred in law by bifurcating the sentence, ordering part of it to be served concurrently and part consecutively.

The sentence was varied to two and one-half years to be served consecutively to the appellant's existing sentences.