Jill R. Presser

Maxwell Johnson was convicted of trafficking cocaine, possession of marijuana for the purpose of trafficking, and possession of proceeds of crime.

He was initially sentenced to six months' imprisonment concurrently.

He appealed the sentence, arguing the trial judge erred in applying sentencing ranges for street-level trafficking to a 'share trafficking' scenario and in reducing the weight given to his first offender status.

The Court of Appeal found errors in principle regarding the application of sentencing ranges and the consideration of first offender status.

The appeal was allowed, and a six-month conditional sentence was substituted for the original custodial sentence, to be served concurrently, followed by one year of probation.

The appellant appealed his convictions related to a firebombing, arguing the trial judge erred in relying on circumstantial evidence.

The prosecution's case relied heavily on electronic messages sent via TextNow, SMS, and Facebook, as well as a blurry surveillance video and a stolen van.

The Court of Appeal found the trial judge erred by failing to recognize the inherent fallibility of the electronic messages, improperly relying on worthless video identification evidence, and inadequately addressing the timeline of the stolen van.

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

Three family members appealed their convictions and sentences arising from a scheme to steal lottery tickets from customers at their family convenience store, one of which won a $12.5 million prize.

The Court of Appeal dismissed the conviction appeals, finding all verdicts were reasonable.

On sentence, the court reduced one appellant's custodial sentence from four to three years and reduced her restitution obligation, but otherwise upheld the sentences.

The court upheld the constitutionality of the mandatory minimum imprisonment provisions under s. 462.37(4) of the Criminal Code, distinguishing Boudreault on the basis that the fine in lieu of forfeiture regime targets offenders who possessed proceeds of crime, unlike the indiscriminate victim surcharge.

The s. 11(b) application was dismissed under the transitional exceptional circumstance provision from Jordan.

On the Crown's appeal, the court entered convictions against the acquitted co-accused on theft and possession counts and ordered a new trial on fraud and possession of proceeds counts.

The English-speaking appellants, having obtained orders under s. 530(1) of the Criminal Code for trials before English-speaking judges and juries, sought to challenge prospective jurors for cause under s. 638(1)(f) on the ground of insufficient English language proficiency.

The trial judges dismissed these applications, concluding that a s. 530 order alone did not automatically entitle an accused to such a challenge without an "air of reality" or "realistic potential" for language competency issues.

The Court of Appeal upheld the trial judges' decisions, finding that the s. 530 orders were not necessary in these cases as the trials were already in English, and the purpose of s. 530 is to assist official language minorities, not to enforce minimum fair trial conditions for majority language speakers.

The court affirmed that a threshold showing of realistic potential is required for challenges for cause under s. 638(1)(f), similar to s. 638(1)(b), and that existing jury selection processes (Juries Act qualifications, pre-vetting) adequately address language competency.

The appeals were dismissed, and convictions affirmed.

The appellants, Jermaine Gager and Corey Leonard Smelie, appealed their murder convictions, with Mr. Smelie also seeking leave to appeal his sentence.

They raised several grounds, including errors in qualifying an expert witness on street gangs, inadequate jury instructions, erroneous dismissal of disclosure applications, inconsistent verdicts, and reasonable apprehension of bias by the trial judge.

The Court of Appeal dismissed all appeals, finding no reversible error in the trial judge's rulings or conduct, and affirmed the fitness of the sentence imposed on Mr. Smelie.

The applicant, convicted of first-degree murder, applied for the appointment of a special commissioner to inquire into allegations of juror misconduct.

A juror alleged undue pressure, verbal abuse, and exposure to extrinsic information during deliberations.

The Court of Appeal dismissed the application, finding that the alleged conduct was intrinsic to the deliberation process and protected by the jury secrecy rule.

The court held there was an insufficient evidentiary basis to establish extrinsic influence or obstruction of justice.

Appeal from a conviction for sexual assault.

The complainant, the appellant's former girlfriend, testified that she fell asleep in the appellant's bedroom and awoke to find him having vaginal intercourse with her without consent.

The appellant claimed the complainant had consented, saying she initiated the sexual activity.

The trial judge rejected the appellant's evidence and convicted him.

On appeal, the appellant argued the trial judge reversed the burden of proof, misapprehended evidence, and failed to address the defence of honest but mistaken belief in consent.

The Court of Appeal upheld the conviction, finding no reversals of burden, no material misapprehension of evidence, and that the trial judge was not obligated to address the alternative defence given the complete rejection of the appellant's version of events.

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.

Following convictions for lottery fraud, the Crown sought restitution, forfeiture, and fines in lieu of forfeiture against the accused.

The court ordered restitution of $12.5 million jointly and severally against the two primary offenders, declining to add interest.

The court also ordered forfeiture of approximately $7.5 million in seized funds, after returning specific amounts to innocent third parties.

Finally, the court imposed fines in lieu of forfeiture of $2.3 million each on the two primary offenders, with a six-year term of imprisonment in default of payment.

The appellant was convicted of second degree murder for stabbing the deceased 19 times during a fight.

The appellant had armed himself with a steak knife in anticipation of a confrontation and carried it openly as he approached the deceased.

When the deceased said "you're dead," the appellant responded "bring it . . . game on." The trial judge refused to instruct the jury on the partial defence of provocation.

The Court of Appeal upheld this decision, finding that the words "you're dead" did not cause the appellant to lose his power of self-control and act on the sudden, as required by the provocation defence.

The appellant's preparation for the confrontation and his state of readiness negated any element of surprise necessary for provocation.

This decision addresses a constitutional challenge to the mandatory minimum terms of imprisonment in default of payment of fines in lieu of forfeiture under s.462.37(4) of the Criminal Code.

The applicants, previously convicted of fraud, argued that these provisions violated ss. 7 and 12 of the Canadian Charter of Rights and Freedoms.

The court dismissed the application, finding that the mandatory minimum terms were not grossly disproportionate under s.12, considering the legislative purpose of disgorging ill-gotten gains and the availability of other Criminal Code provisions allowing for flexibility (e.g., time to pay, proportionate reduction for partial payment, inability to pay as a reasonable excuse).

The court also found no violation of s.7, as offenders have opportunities to make submissions at various stages of the process.

The appellant appealed her conviction for failing to provide a breath sample into an Approved Screening Device, contrary to section 254(2)(b) of the Criminal Code.

The appeal was based on three grounds: the trial judge's alleged error in relying on roadside utterances for credibility assessment, a misapprehension of evidence regarding the appellant's hearing, and the unreasonableness of the verdict due to an alleged lack of unequivocal refusal.

The court dismissed all grounds of appeal, finding no error in the trial judge's reasoning, no material misapprehension of evidence, and abundant evidence of unequivocal refusal.

An appeal from an Ontario Review Board disposition that detained an NCR accused who had been under the Board's jurisdiction for over a decade following a finding of not criminally responsible for criminal harassment and failing to comply with a recognizance.

The Board determined the appellant posed a significant threat to public safety despite fresh evidence from a clinical forensic psychologist indicating low risk on stalking-specific assessment tools.

The Court of Appeal found the Board's decision unreasonable, holding that the evidence fell short of establishing a significant threat to public safety and that the Board had effectively reversed the burden of proof by relying solely on a moderate-risk HCR-20 V3 assessment without proper expert contextualization.

The Crown appealed a stay of proceedings granted on the basis of unreasonable delay contrary to s. 11(b) of the Canadian Charter of Rights and Freedoms.

The respondents, correctional officers, were charged with failing to provide the necessaries of life following the death of an inmate at the Elgin-Middlesex Detention Centre.

The application judge found the net delay exceeded the 30-month presumptive ceiling established in R. v. Jordan and that no exceptional circumstances justified the delay.

The Court of Appeal allowed the appeal, finding the application judge erred in calculating defence delay, failed to recognize a discrete event, and failed to account for case complexity.

The court concluded that the resulting delay for one respondent fell just below the ceiling and for the other fell only three weeks above, justified by case complexity and transitional exceptional circumstances.

The appellant was convicted after a judge-alone trial of nine historical sexual offences against his two biological daughters and his step-daughter, and was acquitted of two charges relating to a third biological daughter.

He received a concurrent sentence of six years' imprisonment.

On appeal, the appellant challenged the conviction on three grounds: (1) the trial judge erred in admitting similar fact evidence across counts; (2) the trial judge improperly admitted evidence of uncharged bad conduct; and (3) the trial judge reversed the burden of proof.

The appellant also appealed his sentence, arguing the trial judge erred in methodology and relied on uncharged acts.

The Court of Appeal dismissed the conviction appeal and allowed the sentence appeal in part, removing an administrative error from the ancillary order.

Two appellants, both found not criminally responsible on account of mental disorder and incapable of consenting to medical treatment under provincial law, appealed detention orders imposed by the Ontario Review Board.

The central issue was whether an accused person incapable of consenting to medical treatment could nonetheless consent to a condition regarding psychiatric or other treatment under section 672.55(1) of the Criminal Code.

The Court of Appeal held that the capacity required to consent to such a condition differs from the capacity required to consent to the treatment itself.

An accused need only understand information relevant to the operation of the condition and appreciate the reasonably foreseeable consequences of agreeing to it, including potential consequences for liberty.

The Court overruled its prior jurisprudence to the contrary and allowed the appeals, remitting the matters back to the Board for re-hearing.

An appeal from an Ontario Review Board disposition concerning an NCR accused person's Charter rights.

The appellant sought systemic remedies from the Board for violations of his section 8 Charter right arising from unauthorized seizure of urine samples.

The Board found the Charter violation but declined to grant systemic remedies, determining it lacked jurisdiction to do so.

The Court of Appeal upheld the Board's decision, holding that while the Board has jurisdiction to determine Charter issues and grant individual remedies, it does not have jurisdiction to impose broad systemic or institutional orders.

The Board's mandate is limited to supervising individual NCR accused persons and ensuring their conditions are least onerous and restrictive consistent with public safety.

Three appellants were convicted of first degree murder, attempted murder, and committing those offences for the benefit of a criminal organization arising from a drive-by shooting in Toronto.

The Crown's case relied heavily on testimony from two gang members who testified the appellants confessed to the shooting.

The appellants challenged numerous aspects of the trial including jury selection procedures, joinder of counts, admission of bad character evidence, ballistics evidence, jury instructions on Vetrovec witnesses, and alleged Charter violations.

The Court of Appeal dismissed the appeals of Atkins and Riley but allowed Wisdom's appeal, finding the trial judge erred in admitting evidence of an attempted theft four months after the shooting, which had minimal probative value but significant prejudicial effect.

The appellant appealed his conviction for two counts of production of marijuana and the dismissal of his Charter s. 11(b) application for a stay of proceedings based on unreasonable delay.

The total delay from charge to conviction was 60 months, exceeding the 30-month presumptive ceiling established in R. v. Jordan.

However, the Court of Appeal found that when delay caused by defence conduct and express waivers was subtracted, the net delay was 23 months, below the presumptive ceiling.

The court also found that even if the net delay exceeded the ceiling, exceptional circumstances (two mistrials) and the transitional provisions of Jordan would justify the delay.

The appeal was dismissed.

The appellant appealed both his conviction and sentence from the Ontario Court of Justice.

On the conviction appeal, the appellant raised two grounds: that the trial judge erred in her similar fact ruling regarding collusion between complainants, and that the trial judge unevenly scrutinized the evidence of the complainants versus the appellant's evidence.

The Court of Appeal found that the trial judge properly considered the possibility of innocent collusion, made findings on the extent of discussions between complainants that were supported by the record, and properly assessed credibility.

The appellant's defence of shady business dealings was found to lack credibility and was contradicted by corporate documents.

Both the conviction appeal and sentence appeal were dismissed.