Jill R. Presser

The appellant was convicted by jury of second degree murder of his common law partner and sentenced to 17 years parole ineligibility.

He appealed both conviction and sentence.

Amicus raised two grounds of appeal: (1) the trial judge erred in failing to declare a mistrial when new evidence emerged during jury deliberations regarding the blue bathrobe used as a murder weapon, and (2) the trial judge improperly limited cross-examination of the officer-in-charge regarding information from a confidential informant about the appellant's alleged ties to organized crime.

The appellant also raised additional arguments regarding Charter violations.

The Court of Appeal dismissed all grounds of appeal, finding no error in the trial judge's handling of the new evidence, the evidentiary rulings, or the sentence imposed.

The appellant appealed his conviction for possession of crack cocaine for the purpose of trafficking.

The sole issue on appeal was whether his trial counsel provided ineffective assistance.

The appellant argued that his counsel was in a conflict of interest by representing both him and a potential third party suspect, the owner of the vehicle in which the drugs were found.

The counsel failed to advance a third party suspect defence and did not disclose the conflict to the appellant.

The Court of Appeal found that an actual conflict of interest existed, that the counsel's representation was materially and adversely affected by the conflict, and that a miscarriage of justice occurred.

The conviction was set aside and a new trial was ordered.

Five appellants convicted of drug-related offences appealed their convictions, challenging the application judge's admission of evidence obtained pursuant to wiretap authorizations under s. 24(2) of the Canadian Charter of Rights and Freedoms.

The appellants argued that the application judge erred in his s. 24(2) analysis by failing to adequately recognize the impact of prior police misconduct and by not giving appropriate effect to findings of serious carelessness in the affidavits.

Ba Tuan Tran also appealed his sentence of 15 months imprisonment.

The Court of Appeal dismissed all conviction appeals and the sentence appeal, finding the application judge's analysis fair, balanced, and correct.

The appellant appealed her conviction on two counts of dangerous driving causing death and two counts of dangerous driving causing bodily harm.

While backing out of a parking spot at a Costco store, the appellant's vehicle accelerated in reverse and crashed into the store's front entrance, killing two individuals and injuring two others.

The appellant claimed her foot became stuck under the brake pedal, preventing her from stopping the vehicle.

The trial judge rejected this explanation as implausible and found the appellant created a dangerous situation by reversing at high speed and taking no corrective action for at least five seconds.

The Court of Appeal upheld the conviction, finding the trial judge properly applied the legal standard for dangerous driving and that the verdict was reasonable.

The appellant was convicted of aggravated assault, firearm offences, and attempt to obstruct justice, receiving a global sentence of 8 years.

He appealed his conviction and 2.5-year consecutive sentence for obstruction of justice, which arose from passing a note to his co-accused during the preliminary inquiry asking her to lie about who possessed a gun.

The Court of Appeal dismissed the conviction appeal, finding the trial judge reasonably inferred the requisite intent.

The sentence appeal was also dismissed, as the sentence was not unfit and the trial judge did not err in principle or double-count aggravating factors.

The appellant appealed his convictions for production of marijuana and possession for the purpose of trafficking, arguing the verdicts were unreasonable and based on circumstantial evidence.

The Court of Appeal dismissed the appeal, finding the evidence against the appellant was very strong, including the presence of nearly 3,000 plants on his farm and his truck equipped to water them.

The court also found no error in the trial judge's credibility assessments.

The appellant appealed his convictions for aggravated sexual assault and forcible confinement.

During and after the trial, the jury foreperson participated in a radio broadcast where he made derogatory and homophobic comments about the trial participants and discussed the case.

The majority of the Court of Appeal found that the juror's conduct created a reasonable apprehension of bias, necessitating a new trial.

The concurring judge found no reasonable apprehension of bias but agreed a new trial was required because the trial judge failed to adequately instruct the jury against using evidence from one count to support findings on other counts.

In a criminal appeal, the court addressed whether the jury charge properly instructed jurors on how to assess a complainant's testimony about events allegedly occurring years earlier in childhood.

The intermediate appellate court had set aside convictions for sexual assault and sexual interference and ordered a new trial.

The court held that, read as a whole, the trial judge's instructions conveyed the correct legal approach to credibility and memory assessment.

The appeal was allowed and the convictions were restored.

The Crown appealed a declaration that the restriction on enhanced pre-sentence custody credit in s. 719(3.1) of the Criminal Code was unconstitutional.

The Court held that denying enhanced credit to offenders denied bail primarily because of prior convictions is overbroad under s. 7 because the provision captures persons unrelated to the public safety objective and affords limited meaningful review of endorsements.

The infringement was not saved by s. 1, as the measure was not minimally impairing and its deleterious liberty effects outweighed its benefits.

The Court also rejected the proposition that proportionality in sentencing process is an independent principle of fundamental justice under s. 7.

The appellant appealed a disposition of the Ontario Review Board, arguing the Board failed to address a treatment impasse and erred in admitting an email into evidence.

The Court of Appeal dismissed the appeal, finding no evidence of a treatment impasse on the record and noting the Board's wide latitude to accept hearsay evidence.

The appellant's continued detention at a maximum secure forensic facility was deemed appropriate.

The appellant appealed a disposition of the Ontario Review Board under Part XX.1 of the Criminal Code.

The Court of Appeal dismissed the appeal, finding that the Board had no obligation to make further inquiries beyond the joint position of the parties based on the record.

The Court noted the appellant's progress, the existence of a treatment plan, and concluded that the Board's disposition was the least onerous and least restrictive available.

The appellant was convicted of robbery and conspiracy to commit robbery for his role in a home invasion and was sentenced to two years' imprisonment.

He appealed his sentence and introduced fresh evidence demonstrating significant rehabilitation during the five years he spent on bail pending appeal, including maintaining employment, marrying, and volunteering.

The Court of Appeal admitted the fresh evidence and held that returning the appellant to custody would sacrifice his rehabilitation for general deterrence.

The custodial portion of the sentence was reduced to time served.

The appellant appealed his conviction and sentence for discharging a firearm with intent to endanger life.

The Court of Appeal dismissed the conviction appeal, finding no merit to the claims of ineffective assistance of counsel or unreasonable verdict.

However, the sentence appeal was allowed.

The Court applied a 1.5:1 credit for pre-sentence custody and reduced the sentence to the mandatory minimum of five years, emphasizing the need for restraint when sentencing a youthful first offender with excellent prospects for rehabilitation.

The Crown appealed the accused's acquittal on drug production and trafficking charges.

The trial judge had excluded evidence found during a search incident to arrest and subsequent condominium searches, finding the police lacked reasonable and probable grounds for the arrest, thereby violating the accused's Charter rights.

The Court of Appeal allowed the appeal, holding that the trial judge erred in law by failing to assess the objective reasonableness of the grounds for arrest through the lens of an experienced police officer.

When viewed from that perspective, the totality of the evidence, including extensive surveillance, provided reasonable and probable grounds for the arrest.

A new trial was ordered.

The appellant appealed his designation as a dangerous offender and the imposition of an indeterminate sentence following a guilty plea for sexual interference.

He argued the sentencing judge misapprehended evidence regarding his ability to manage his risk in the community using sex-drive reducing medication (Lupron) and sought to introduce fresh evidence of his progress on the medication.

The Court of Appeal dismissed the appeal, finding the sentencing judge reasonably concluded that the mere possibility of taking medication did not adequately reduce the high risk he posed to the public.

The court also dismissed the application to adduce fresh evidence, noting it was not credible due to the appellant's manipulative nature and was more appropriately a matter for parole authorities.

The appellant pleaded guilty to fraud over $5,000, fraud for the benefit of a criminal organization, and money laundering arising from a 'grandparent fraud' telephone scam.

He was sentenced to six years' imprisonment and a $500,000 fine in lieu of forfeiture.

On appeal, the court granted enhanced pre-sentence custody credit of 1.5:1, reducing his custodial sentence and resulting in his immediate release.

However, the court dismissed the appeal regarding the fine, finding the sentencing judge correctly concluded the appellant had control over the proceeds of the fraud and properly assessed the fine amount based on the value of the property controlled rather than the actual benefit received.

The appellant was charged with firearms and drug-related offences.

During a resolution discussion, the trial Crown offered to recommend a conditional sentence if the appellant pleaded guilty and provided a statement admitting he gave false evidence and his counsel knew it.

The appellant rejected the offer and applied for a stay of proceedings, alleging abuse of process.

The trial judge dismissed the application, ruling the discussion was protected by settlement privilege and the appellant failed to provide extrinsic evidence of prosecutorial misconduct.

The Court of Appeal allowed the appeal, finding that an exception to settlement privilege applied due to the allegation of prosecutorial misconduct, and that the unusual nature of the offer met the threshold evidentiary burden to review the Crown's exercise of discretion.

A new trial was ordered.

The appellants were convicted of drug-related kidnapping and robbery.

At trial, two key Crown witnesses recanted their prior statements inculpating the appellants.

The trial judge admitted the prior inconsistent statements for the truth of their contents under the K.G.B. framework but refused to allow defence counsel to cross-examine one of the witnesses on her statement after it was admitted.

The trial judge also admitted the entire transcript of a co-accused's guilty plea proceedings.

The Court of Appeal allowed the appeals and ordered a new trial, finding that the trial judge erred by denying the defence the right to cross-examine the witness on her prior statement and by admitting the guilty plea proceedings where cross-examination was limited by solicitor-client privilege and the statement contained inadmissible hearsay.

The appellant was convicted of aggravated assault following an altercation between boaters that resulted in the complainant losing sight in his left eye.

On appeal, the appellant argued the trial judge misapprehended material evidence regarding the intentional application of force and consent, and failed to consider the defence of accident.

The Court of Appeal dismissed the appeal, finding no misapprehension of evidence and concluding that the trial judge's findings on intentional force and consent foreclosed the defence of accident.

The appellant was convicted of attempted murder and conspiracy to commit murder after his three children tried to kill their mother.

At trial, the Crown theorized that the appellant used his religious beliefs to influence the children, and made inflammatory remarks during closing submissions comparing the appellant to notorious cult leaders and calling him a 'Jesus nut'.

The trial judge did not correct these remarks or instruct the jury on how to use the evidence of the appellant's religious beliefs.

The Court of Appeal allowed the appeal and ordered a new trial, finding that the Crown's improper comments and the trial judge's failure to intervene rendered the trial unfair and caused a miscarriage of justice.