Jeremy D. Tatum

The appellant, Connor Davison Gibson, brought a motion under section 683(1)(a) of the Criminal Code and rule 12(8) of the Criminal Appeal Rules for an order directing that the wooden board used to cause the deceased’s death (Exhibit 26 at trial) and the audio of the appellant’s 911 call be sent to the Court of Appeal and produced at the hearing of the appeal.

The Crown opposed, arguing that photographs of the board and a transcript of the 911 call were already in the record.

The court dismissed the motion, finding that the actual board and audio would not add anything meaningful to the panel’s deliberations, but noted the panel retains authority to require production of these exhibits if needed.

The Court of Appeal for Ontario dismissed Jitesh Bhogal’s appeal from his conviction for first degree murder.

The appellant argued that the trial judge erred by not instructing the jury on the defence of extreme intoxication akin to automatism in relation to the alleged sexual assault, and by mischaracterizing expert evidence on the cause of death.

The Court found that there was no air of reality to the extreme intoxication defence on the evidence, and that any misstatements of the expert evidence did not cause substantial prejudice.

The conviction was upheld.

The applicant sought judicial interim release pending his conviction and sentence appeal for firearm offences, including pointing a firearm, assault with a weapon, and possessing a weapon for a dangerous purpose, stemming from a drive-by shooting.

Despite the Crown's consent, the Court of Appeal denied the application.

The court found the appeal grounds, particularly regarding the sentence, to be weak and determined that the applicant's detention was necessary in the public interest, given the serious nature of the gun violence and the need to maintain public confidence in the administration of justice.

The appellant, convicted of manslaughter, brought a motion before the Court of Appeal seeking an order to examine a juror for a reasonable apprehension of bias.

The appellant's mother, Chair of a district school board, asserted that a juror, a vice-principal within the same board, may have been influenced by this professional connection.

The Court dismissed the motion, finding the claim speculative and lacking a sufficient credible foundation to warrant an examination.

The Court emphasized the strong presumption of juror impartiality and the sanctity of jury secrecy, reiterating that an examination cannot be used to create the foundation for such a challenge.

This endorsement from the Court of Appeal for Ontario addresses a non-publication order under s. 517 of the Criminal Code that was imposed at a bail hearing in the court below.

The endorsement states that the full decision, which contains information covered by this order, will not be published online until the non-publication order ceases to be in effect.

In the interim, a physical copy of the decision is available at the Court of Appeal Registry.

The underlying matter is an application to set aside a detention order.

The appellant, Jamil Ahmad Qureshi, appealed his conviction for dangerous driving causing bodily harm and death, arguing the trial judge erred in her legal analysis of the mens rea element.

The Court of Appeal found that the trial judge misapplied principles regarding momentary lapses and conflated civil and criminal negligence standards by failing to adequately explain how the appellant's conduct constituted a "marked departure" from the standard of care.

The Court allowed the appeal and ordered a new trial, but declined to order an acquittal, finding the verdict was not otherwise unreasonable.

The appellant appealed his conviction for sexual assault, raising two grounds: an alleged error in the severance application regarding charges involving two complainants, and serious errors in the trial judge's credibility analysis.

The Court of Appeal dismissed the appeal, affirming the high deference owed to severance decisions and credibility findings.

The court found no error in the application judge's decision to not sever the charges, noting the low threshold for similar act evidence at the severance stage and the lack of injustice given the judge-alone trial and partial acquittal.

The court also upheld the trial judge's credibility assessment, finding no impermissible reasoning or unequal scrutiny.

The Crown appealed stays of proceedings granted to three respondents on the basis of their s. 11(b) Charter right to trial within a reasonable time.

The trial judge had found breaches of the Jordan ceilings, but the Court of Appeal found that she did not adequately account for the systemic disruptions to court operations caused by the COVID-19 pandemic as discrete exceptional circumstances.

The Court provided guidance on how trial courts should account for pandemic-related delays, emphasizing a holistic approach and treating province-wide closures, jury blackouts, local restrictions, and backlog prioritization as discrete exceptional circumstances.

The appeals were allowed, and the stays of proceedings were set aside.

This is an appeal from a sexual assault conviction.

The appellant challenged the verdict, arguing the trial judge misapprehended DNA evidence, leading to an unreasonable verdict.

The complainant had no memory due to extreme intoxication.

DNA tests revealed the appellant could not be excluded as the source of DNA found on the complainant's breast, external genitalia, and vagina.

While the trial judge accepted non-sexual transfer for some DNA, she rejected the submission that there was a rational basis to explain the DNA found inside the complainant’s vagina other than direct contact.

The Court of Appeal dismissed the appeal, finding no basis to interfere with the trial judge's conclusion regarding the DNA evidence and affirming the reasonableness of the verdict.

A sentence appeal was also dismissed as abandoned.

The appellant, Tyrone Burton, appealed his convictions for human trafficking, receiving a benefit from human trafficking, exercising control for the purpose of receiving a benefit from prostitution, and obstruction of justice, as well as his sentence of 10.5 years in custody and a 10-year long-term supervision order.

The Court of Appeal dismissed the conviction appeal, with the exception of two counts of exercising control which were stayed by Crown concession under the Kienapple principle.

The sentence appeal was also dismissed, with the court finding the sentence fit and within range, and upholding the long-term supervision order.

The court rejected arguments regarding the trial judge's application of law, questioning of witnesses, use of evidence, and the appellant's opportunity to testify.

The accused, charged with second-degree murder, brought an application to exclude DNA and fingerprint evidence, arguing that police violated his s. 8 Charter rights by searching a public genetic genealogy database (GEDmatch) and seizing cast-off DNA without judicial authorization.

The court dismissed the application, finding the accused had no reasonable expectation of privacy in the public database search results.

Furthermore, applying horizontal stare decisis, the court held it was bound by prior decisions establishing that the seizure of discarded items for DNA analysis does not violate s. 8.

This is an appeal from convictions for receiving a material benefit, procuring, and advertising under the Criminal Code.

The appellant argued that the trial judge reversed the burden of proof by seeking positive evidence to support the defence theory.

The Court of Appeal reviewed the trial judge's reasons contextually and found that the judge understood and correctly applied the burden of proof, accepting the complainant's evidence which supported the elements of each offence.

The appeal was dismissed.

The applicant sought a review of a bail judge's decision to continue his detention on a charge of second-degree murder, arguing that a material change in circumstances had occurred due to a trial judge's ruling granting leave to raise a third-party suspect defence.

The Court of Appeal, reviewing the decision de novo, assumed a material change but ultimately found that the apparent strength of the prosecution's case remained very strong despite the third-party suspect evidence.

The court dismissed the application, concluding that detention was still necessary to maintain confidence in the administration of justice, particularly given the horrific nature of the crime, the vulnerability of the victim, and the overwhelming forensic evidence against the applicant.

The applicant, charged with second-degree murder, sought a review under s. 680(1) of the Criminal Code of the dismissal of his third bail application.

The application argued that a pre-trial ruling allowing a third-party suspect defence constituted a material change in circumstances, warranting a de novo bail hearing.

The motion judge found it arguable that the most recent bail judge erred by applying too high a threshold for "material change" and by not fully balancing factors in his alternative reasons for denying bail.

The application for a direction to review by a panel of the court was allowed.

The Crown applied for forfeiture of a $20,000 release order against Abadula Biya and his sureties (his parents) following Mr. Biya's breach of bail conditions.

Mr. Biya had been released on bail pending appeal, which was later successful, leading to a new trial.

Despite a technicality in the latest release order form regarding Mr. Biya's personal liability, the court found jurisdiction for forfeiture based on earlier orders and Mr. Biya's admission of breach.

Applying principles from Horvath and Griffiths, the court considered the sureties' diligence, the family's financial hardship, and the need to maintain bail system credibility.

The court ordered partial forfeiture: Mr. Biya to pay $1,500 over two years, and each surety (his parents) to pay $750 over one year, totaling $3,000.

The appellant, Dylan Hird, appealed his conviction for various offences related to the trafficking and sexual assault of a 15-year-old complainant.

The appeal focused on two grounds: the trial judge's charge to the jury regarding identification evidence and the handling of the police's failure to conduct a photo line-up.

The Court of Appeal dismissed the appeal, finding no error in the trial judge's instructions on identification, which adequately cautioned the jury on eyewitness testimony frailties and the need to prove the appellant's identity beyond a reasonable doubt.

The court also found no error in the trial judge's management of the photo line-up issue, concluding that the approach taken was fair to both the Crown and the defence.

The Crown appealed a stay of proceedings granted due to s. 11(b) Charter delay.

The application judge had calculated the delay, subtracting periods for exceptional events and defence delay, resulting in a delay exceeding the *Jordan* ceiling by 16 days.

The Court of Appeal found an error in the application judge's failure to characterize a 65-day period as defence delay, which was implicitly and unequivocally waived by the defence.

Correcting this error brought the total delay well below the *Jordan* ceiling.

The appeal was allowed, the stay of proceedings was set aside, and the matter was remitted for trial.

The appellant appealed convictions for human trafficking, procuring, and receiving a material benefit from a person under 18, arguing errors in the trial judge's jury charge.

The Court of Appeal for Ontario dismissed the appeal, finding the jury charge was fair and legally sound.

Specifically, the court held that the trial judge correctly instructed the jury on the "purpose" element of human trafficking, the two modes of committing the procuring offence (despite the indictment only specifying one mode, the charge as a whole adequately covered the mens rea for both), and the application of circumstantial evidence for the material benefit charge, consistent with *R. v. Villaroman*.

The Crown appealed a trial judge's decision declaring certain Criminal Code provisions related to sexual services unconstitutional and sought a stay of the declaration pending appeal.

The Court of Appeal applied the tripartite test from RJR-MacDonald Inc., finding a serious question to be tried, irreparable harm to the Crown (public confusion, impact on law enforcement), and that the balance of convenience favoured granting the stay, especially given the short duration of the stay until the appeal hearing.

The appellant, Kumaraguruparan Manickam, appealed his conviction for two counts of fraud over $5,000 and one count of uttering a forged document, and in the alternative, his sentence of 18 months' imprisonment.

The trial judge found the appellant wilfully blind to a fraudulent cheque deposit scheme involving fake business accounts and counterfeit cheques, resulting in over $250,000 loss to banks.

The Court of Appeal dismissed the conviction appeal, finding no palpable and overriding error in the trial judge's finding of wilful blindness or credibility assessment, despite some imprecise language.

The court also granted leave to appeal the sentence but denied the appeal, affirming that the sentencing judge properly applied the principle of restraint while imposing a significant jail sentence due to the seriousness and premeditated nature of the fraud.