Jill R. Presser

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.

The appellant appealed a 5-year sentence for a drug offence.

The trial judge found the appellant was a trusted courier and not part of a criminal organization.

The co-accused, an active drug trafficker with a criminal record, received a 4-year sentence.

The Court of Appeal held that the 5-year sentence offended the parity principle, noting the appellant was a youthful first offender.

The appeal was allowed and the sentence was reduced to 42 months.

The appellant, who was found not criminally responsible (NCR) due to schizophrenia, appealed a disposition of the Ontario Review Board that imposed a detention order.

The Board had imposed the detention order primarily because the hospital was conducting a drug reduction program to demonstrate the appellant's need for medication.

The Court of Appeal held that the Board erred by justifying a restriction on liberty based on a risk created by a hospital treatment program rather than considering treatments available in the community.

The Court substituted a conditional discharge, finding it to be the least onerous and least restrictive disposition available given the appellant's progress, lack of prior violence, and family support.

The moving party, a mental health centre, brought a motion to suspend a placement decision of the Ontario Review Board pending appeal.

The respondent, a dual status offender, was ordered by the Board to be transferred from a federal penitentiary to the mental health centre.

The moving party argued that the transfer posed a safety risk and that the Board lacked jurisdiction.

The Court of Appeal dismissed the motion, holding that the test for suspending a placement decision is whether the moving party has shown a compelling reason to doubt the reasonableness of the Board's decision concerning the mental condition of the accused.

The moving party failed to meet this heavy burden.

The appellant appealed his convictions for robbery with an imitation firearm, disguise with intent, and possession of a weapon for a purpose dangerous to the public peace.

The Crown's case was entirely circumstantial, relying heavily on DNA evidence found on a balaclava and toy gun retrieved from a garbage bin near the scene of the bank robbery.

The appellant argued the trial judge failed to consider the whole of the evidence, reversed the burden of proof regarding his testimonial silence, provided insufficient reasons, and reached unreasonable verdicts.

The Court of Appeal dismissed the appeal, finding the trial judge properly applied the law regarding the accused's silence and that the circumstantial evidence reasonably supported the convictions.

The appellant appealed a jury conviction for first degree murder arising from the fatal stabbing of a teenager during a group robbery incident.

The principal issue was whether the evidence could support constructive first degree murder under s. 231(5)(e) of the Criminal Code on the basis of actual or attempted unlawful confinement, including events in a catwalk, the ensuing chase, and a bear hug immediately preceding the stabbing.

The court held that the evidence was capable of supporting at least attempted unlawful confinement, that the restraint was distinct from the killing, and that the jury charge disclosed no reversible error.

Additional complaints concerning jurisdiction, prior discreditable conduct, victim good character evidence, exculpatory instructions, and hearsay rulings were rejected.

The appeal was dismissed.

The appellant challenged a penitentiary sentence imposed following a manslaughter conviction arising from failure to provide necessaries of life to a young child who died after severe burns and delayed medical treatment.

The court rejected arguments that the sentencing judge overstated moral blameworthiness, failed to properly weigh remorse, rehabilitation, restraint, and other mitigating factors, improperly relied on a victim impact statement, or imposed a sentence outside the acceptable range.

The court held that the sentencing judge properly focused on the deliberate withholding of urgently required medical care to protect the offender from blame, and that denunciation and deterrence properly predominated.

However, the Crown conceded an error in the calculation of pre-sentence custody credit under s. 719 of the Criminal Code.

The appeal was allowed only to increase credit for pre-sentence custody, reducing the effective sentence to nine years and six months.

The appellant challenged a Review Board disposition continuing his detention in a maximum secure forensic facility after findings of not criminally responsible on multiple threatening offences.

He argued that the Board failed to address an alleged treatment impasse, failed to order the least onerous and least restrictive disposition, and failed to consider re-integration into society.

The Court of Appeal held that the record supported the Board’s conclusion that the appellant remained a significant threat to public safety, that active treatment efforts were ongoing, and that transfer to medium security was not shown to be appropriate or less restrictive in practical terms.

The appeal was dismissed.

The appellant, who was found not criminally responsible on account of mental disorder, appealed a disposition of the Ontario Review Board ordering his detention in a secure unit.

He sought an absolute discharge, conditional discharge, or transfer to a general unit.

The Court of Appeal dismissed the appeal, noting that an ongoing six-month review by the Board would soon provide a decision based on current medical information.

However, the Court emphasized the Board's obligation to properly determine whether the appellant posed a significant threat to public safety and expressed deep concern over the hospital's delay in transferring the appellant to the secure unit as ordered.

The appellant, who was found not criminally responsible on account of mental disorder, appealed an Ontario Review Board (ORB) disposition ordering his detention at the Centre for Addiction and Mental Health (CAMH).

The appellant argued that CAMH's request for an early review of his previous conditional discharge was an abuse of process, and that the ORB erred in finding he posed a significant threat to public safety and in imposing a detention order.

The Court of Appeal dismissed the appeal, finding that the early review was permitted under the Criminal Code, the ORB applied the correct legal test, and the detention order was the least onerous disposition necessary to ensure CAMH had adequate control over the appellant's housing in the community.

The appellant appealed sexual assault convictions arising from allegations involving children within a family household and argued, among other things, that the trial judge applied uneven scrutiny to credibility, failed to resolve testimonial inconsistencies, and relied on a critical factual finding without permitting response.

The court held that the reasons disclosed no unbalanced scrutiny, that the trial judge adequately addressed inconsistencies and explained which portions of the evidence were accepted or rejected, and that any inconsistency concerning the timing of a child’s birth was immaterial.

The court also rejected the fresh evidence application because the corrected birthdate would not have affected the trial result.

The appeal was dismissed.

The appellant appealed his convictions for two counts of robbery, arguing the trial judge failed to properly instruct the jury on the frailties of eyewitness identification evidence and the alibi defence.

The Crown's case rested entirely on the eyewitness identification of two victims who had a brief, stressful encounter with the assailant and provided generic descriptions lacking distinctive features.

The Court of Appeal found the jury instructions deficient, particularly regarding the failure to connect the standard instruction on eyewitness frailties to the specific concerns of the case and the lack of a Hibbert caution regarding in-dock identification.

The convictions were quashed and acquittals entered.

The appellant was convicted of multiple historic sexual offences against his niece and sentenced to a total of five years' imprisonment.

On appeal, he argued that the Kienapple principle should apply to stay one count, which the Crown conceded.

He also appealed his sentence, requesting that the five-year total be apportioned into consecutive sentences of less than two years each to preserve his right to appeal a deportation order under the Immigration and Refugee Protection Act.

The Court of Appeal dismissed the sentence appeal, holding that courts cannot impose inadequate or artificial sentences to circumvent Parliament's will on immigration matters, and that a sentence of less than two years for prolonged sexual assault of a child would be patently inadequate.

The appellant appealed his convictions and sentence for firearms offences, arguing the trial judge misapprehended evidence and made unreasonable findings of guilt.

The Court of Appeal dismissed the conviction appeal, finding no critical misapprehensions of evidence and that the findings were firmly rooted in circumstantial evidence.

The sentence appeal was also dismissed, as the appellant was apprehended with a fully loaded semi-automatic handgun while bound by a recognizance and a firearms prohibition, making the sentence fit.

The appellant appealed his conviction for child pornography offences, arguing the trial judge erred in admitting evidence obtained from a search of his computer under s. 24(2) of the Charter.

The police had obtained his subscriber information from his Internet service provider without a warrant, which the trial judge found breached s. 8.

The Court of Appeal dismissed the appeal, relying on its companion decision in R. v. Ward to hold that obtaining the subscriber information did not violate s. 8, and alternatively, that the trial judge made no error in her s. 24(2) analysis admitting the evidence.

The applicant, convicted of first‑degree murder and serving life imprisonment with 25 years’ parole ineligibility, sought a reduction of the ineligibility period under the “faint hope” provisions of s. 745.6 of the Criminal Code.

The court conducted the initial judicial screening required under s. 745.61 to determine whether the application demonstrated a substantial likelihood of success before a jury.

The materials showed exceptional institutional conduct, rehabilitation efforts, and declining health, though the Crown challenged the applicant’s credibility and role in planning the murder.

Weighing the statutory factors including character, conduct during incarceration, the nature of the offence, and the victim impact evidence, the court found the threshold test met.

The application was permitted to proceed to a jury hearing.

The appellant appealed a conviction for care and control of a motor vehicle with blood alcohol exceeding the legal limit and a sentence of six months’ imprisonment with a four-year driving prohibition.

The appellant argued the roadside screening demand was not made “forthwith” under s. 254(2) of the Criminal Code and alleged Charter breaches under ss. 8, 9, and 10.

The court held the demand was made promptly in the circumstances, noting the officer acted reasonably in securing the scene of a collision and arranging for an approved screening device.

However, the sentencing judge improperly treated the appellant as the cause of the collision using a balance of probabilities standard rather than proof beyond a reasonable doubt for an aggravating factor.

The conviction appeal was dismissed but the sentence appeal was allowed and the custodial term and driving prohibition were reduced.

The appellant appealed his convictions for second-degree murder and firearms offences, arguing the trial judge misdirected the jury on post-offence conduct, the mental elements for murder and manslaughter, and failed to accurately summarize defence evidence or leave the defence of accident.

The central issue at trial was whether the appellant or his neighbour fired the fatal shots.

The Court of Appeal dismissed the appeal, finding no reversible errors in the jury instructions.

The court held that the post-offence conduct evidence did not require a special warning, the summary of evidence was fair, and there was no air of reality to the defence of accident.

The appellant appealed a disposition of the Ontario Review Board, seeking an absolute or conditional discharge.

The Court of Appeal upheld the Board's decision that the appellant posed a significant threat to public safety due to his history of violence, mental illness, and limited insight.

The Court found the Board reasonably concluded that a conditional discharge could not sufficiently manage the risk of decompensation and that detention was the least onerous and least restrictive disposition.

The appeal was dismissed.

The appellant appealed a decision of the Ontario Review Board ordering that he continue to be subject to a conditional discharge.

He argued for an absolute discharge, supported by a doctor's opinion.

The Court of Appeal dismissed the appeal, finding that the Board's decision was not unreasonable given the appellant's continuing pattern of criminal behaviour, impulsivity, and need for monitoring.