Joan Barrett

The appellant, Brian Glen Kerr, appealed his convictions for attempting to obstruct justice and two counts of counselling to commit murder.

The central issue was the admissibility and scrutiny of evidence provided by a jailhouse informant, Richard Busch, and the validity of a warrant to intercept communications.

The appellant argued the warrant was not based on credible, compelling, and corroborated evidence, and that the trial judge erred in not excluding the intercepted conversation due to the affiant's failure to disclose sentencing considerations given to the informant.

The Court of Appeal dismissed the appeal, finding that the trial judge properly applied the Debot criteria for warrant validity and that the omission in the information to obtain was inadvertent, not an abuse of process.

The Crown appealed from the Court of Appeal for Ontario's finding that s. 33.1 of the Criminal Code, which bars accused persons from raising a defence of self-induced extreme intoxication akin to automatism, violates ss. 7 and 11(d) of the Charter and is not saved by s. 1.

The Court dismissed the appeals on the basis of the companion decision in R. v. Brown, 2022 SCC 18, which held s. 33.1 unconstitutional and of no force or effect.

The Court further held that ordinary horizontal stare decisis principles govern prior s. 52(1) declarations of unconstitutionality issued by superior courts within the same province, applying the Spruce Mills criteria, and that a trial judge is not strictly bound to follow such a declaration unless it is distinguishable or one of the recognized exceptions to stare decisis applies.

The Court also quashed the respondent Chan's application for leave to cross-appeal for want of jurisdiction under s. 691 of the Criminal Code, as no statutory route exists to challenge a new trial order where a conviction was set aside.

The appellant, Jesse Wabegijig, appealed his convictions, including sexual assault, arguing he acted in a state of parasomnia or extreme intoxication akin to automatism, rendering him not criminally responsible on account of a mental disorder (NCRMD).

The defence presented expert evidence and the appellant testified.

The Crown maintained the appellant was highly intoxicated but not to the point of involuntary conduct, calling its own expert.

The trial judge rejected the defence, preferring the Crown's expert evidence and finding the appellant's testimony not credible on certain issues.

The trial judge also found insufficient evidence for intoxication-induced automatism.

The Court of Appeal dismissed the appeal, finding no material misapprehensions of evidence by the trial judge and upholding her assessment of witness credibility and the weight of expert evidence.

The appellant was convicted of manslaughter after striking and killing a pedestrian with his taxi.

He claimed he did not see the victim and collided due to momentary inattention.

The Crown alleged intentional conduct motivated by road rage.

The trial judge left liability for manslaughter based on unlawful acts of assault and dangerous driving with the jury.

The Court of Appeal allowed the appeal, finding the trial judge erred in instructing the jury on how to apply the W. (D.) framework to the dangerous driving element.

The court held that while the classic W. (D.) instruction was inapplicable due to the modified objective nature of dangerous driving, the accused's evidence still had exculpatory potential and could raise reasonable doubt on whether the Crown proved the elements of dangerous driving.

The court also expressed concerns about the trial judge's conduct and handling of the mistrial application, though found no reasonable apprehension of bias.

The appellant appealed a sentence of five years imprisonment imposed by the trial judge, with credit for 1,226 days of presentence custody resulting in a custodial term of 599 days followed by three years' probation.

The Court of Appeal upheld the five-year custodial sentence as appropriate given the seriousness of the offence and the appellant's mental condition.

However, the court agreed with the parties that the appellant was entitled to an additional 41 days credit for presentence custody, reducing the custodial term to 558 days (time served).

The court rejected the appellant's argument to reduce the probation term from three years to one year, finding the probation order with treatment and counselling terms essential to public protection.

The victim surcharge was deleted.

The appellant was convicted of possession of child pornography and appealed both conviction and sentence.

The Court of Appeal upheld the conviction, finding that the police search of the appellant's computer was reasonable and not unreasonably invasive under section 8 of the Charter.

The court found that where child pornography has been located on a computer during initial examination, it is reasonable for police to examine all images and videos on the computer, as well as Internet search history, to identify further material and determine who was responsible.

The court also found that the mandatory minimum six-month sentence for possession of child pornography was grossly disproportionate in reasonable hypothetical circumstances and violated section 12 of the Charter.

However, the court upheld the ten-month sentence imposed by the trial judge as fit and proportionate, given the serious nature of the offence and the appellant's collection of 89 unique videos and 50 unique images of extreme child pornography.

The appellant appealed his conviction for first-degree murder, challenging the admissibility of his confession obtained through a police undercover operation styled as an insurance fraud scheme.

The operation involved undercover officers posing as a private investigator and a terminally ill man seeking to confess to the murder in exchange for insurance proceeds.

The appellant argued the confession was obtained through a "Mr. Big" operation that did not meet the admissibility criteria established in R. v. Hart and that the trial judge's jury charge was inadequate under R. v. Mack.

The Court of Appeal held that although the operation was a modified version of a classic Mr. Big scheme, the Hart test applied.

The confession met the threshold reliability requirements, the probative value outweighed prejudicial effect, and there was no abuse of process.

The jury charge adequately addressed the Hart and Mack criteria.

The appeal was dismissed.

The applicant sought an order appointing counsel under section 684 of the Criminal Code for a late appeal.

The Crown consented to the extension of time but opposed the appointment of counsel, conceding the applicant lacked sufficient financial means but arguing the appeal was not arguable.

The applicant's principal ground of appeal challenged the trial judge's ruling on a KGB application regarding the admissibility of statements.

The court found no merit in the arguments that the trial judge erred in admitting the statements as substantive evidence and found no merit in other grounds advanced.

The court declined to appoint counsel, finding it was not in the interests of justice to do so.

The appeal concerned whether a drug recognition expert’s opinion under s. 254(3.1) of the Criminal Code is automatically admissible at trial or remains governed by common law expert-evidence rules.

The majority held the provision does not create automatic admissibility, but found the statutory and regulatory framework conclusively establishes the expert’s specialized expertise for administering the 12-step evaluation.

On that basis, and with the other Mohan factors not in dispute, the opinion evidence was admissible without an additional voir dire in this case.

The dissent would have required proof of threshold reliability of the underlying science before admitting the opinion on impairment.

The appeal was dismissed and the new trial order was confirmed.

The appellant was convicted of first degree murder of his daughter-in-law.

At trial, he advanced a non-insane automatism defence, claiming he was in a dissociative state when he shot the victim.

The sole ground of appeal concerned Crown counsel's closing address to the jury.

The defence argued that the Crown violated the principle in Browne v. Dunn by failing to confront defence witnesses with inferences and arguments later urged to the jury.

The trial judge found one Browne v. Dunn violation and two material misstatements of evidence but rejected seven other defence arguments.

On appeal, the court upheld the trial judge's rulings, finding the corrective instructions adequate and the other Crown submissions not improper.

The accused was charged with two counts of uttering threats to cause death contrary to s. 264.1(1)(a) of the Criminal Code.

The charges arose from statements made during a telephone conversation on a train, overheard by a fellow passenger.

The accused allegedly threatened to kill ten female members of Parliament and the spouse of the current Prime Minister.

The court found that while the accused spoke the words in question, they did not constitute threats within the meaning of the statute when considered in full context.

The court held that a reasonable person, fully apprised of all circumstances including the accused's apparent belief that he held a legitimate law enforcement role, would be left in reasonable doubt as to whether the words were actual threats or the ramblings of a mentally unstable individual.

The accused was acquitted on both counts.

The defendant pleaded guilty to sexual interference of a five-year-old child, the defendant's granddaughter, contrary to Section 151 of the Criminal Code.

The abuse occurred over approximately two years, from when the victim was three to five years old, on multiple occasions at both the defendant's home and the victim's home.

The conduct included touching the victim's genitals under her underwear and requiring the victim to manipulate the defendant's genitals, resulting in masturbation with discharge that the victim was required to clean up.

The court imposed a sentence of 14 months imprisonment followed by three years probation, along with ancillary orders including a no-contact order, DNA order, firearm prohibition, Sexual Offender Information Registry requirement, and Section 161 prohibition order with limited exceptions.