John Fennel

The appellants were convicted of manslaughter and first degree murder, respectively, following a fatal shooting during a home invasion.

On appeal, one appellant argued the trial judge erred in admitting highly prejudicial 'resemblance evidence' from his parents based on a surveillance video.

The other appellant argued the trial judge's W.(D.) instructions were deficient for failing to incorporate exculpatory eyewitness evidence, and that the Crown's closing address improperly denigrated that evidence using inadmissible scientific claims.

The Court of Appeal agreed with both appellants, finding the resemblance evidence inadmissible and the jury instructions combined with the Crown's improper closing address fatal to trial fairness.

Both appeals were allowed and new trials ordered.

The accused was charged with first-degree murder after shooting and killing the victim outside Scotiabank Arena.

The accused admitted to the shooting but raised the defence of not criminally responsible (NCR) on account of mental disorder, claiming he believed the victim was the Devil and that he was on a mission to save the world.

The court found that while the accused had a mental disorder, he exaggerated and fabricated symptoms.

Relying on the accused's organized conduct before, during, and after the offence, the court concluded he was capable of knowing his actions were morally wrong.

The NCR defence was rejected, and the accused was found guilty of first-degree murder.

The offender was convicted of unauthorized possession of a loaded restricted or prohibited firearm contrary to s. 95(1) of the Criminal Code and possession of fentanyl for the purpose of trafficking contrary to s. 5(2) of the Controlled Drugs and Substances Act.

The offences occurred during a police search of an illegal bar in Toronto in September 2019.

The offender was 21 years old at the time of the offences and 27 at sentencing.

The Crown sought 7-8 years imprisonment while the defence sought 2 years 9 months.

The court imposed a sentence of 4.5 years total (3.5 years for the firearm offence and 1 year consecutive for the drug offence), taking into account the offender's difficult background, youth at the time of the offences, and the principle of totality, balanced against the serious nature of the offences and the offender's subsequent criminal record.

The accused was charged with second-degree murder in the shooting death of Antoine Bouchard on January 23, 2022, in Thunder Bay.

The accused admitted to shooting the victim but claimed self-defence, asserting that the victim and two others were attempting to rob him while armed.

The Crown presented forensic evidence, including post-mortem examination findings and ballistics analysis.

Key witnesses included the alleged robbers and the accused.

The court found that the accused reasonably believed force was imminent, acted for the purpose of self-defence, and that his response was proportional to the threat faced.

The accused was acquitted of second-degree murder.

The Court of Appeal for Ontario dismissed Baba Ouedraogo’s appeal from sentence, except to vacate the sentencing judge’s recommendation for phallometric testing.

The appellant challenged the imposition of a second Long Term Supervision Order (LTSO), the finding of substantial risk of reoffence, the imposition of lifetime prohibition orders, and the recommendation for phallometric testing.

The court found no error in the sentencing judge’s approach to issue estoppel, risk assessment, or the imposition of prohibition orders, but held that a recommendation for phallometric testing was not legally available without the offender’s consent.

The appellant, Baba Ouedraogo, appealed the imposition of a long-term supervision order following convictions for two serious sexual assaults on strangers.

The Court of Appeal for Ontario found that the sentencing judge’s assessment, including expert evidence, justified the long-term offender designation and dismissed the appeal.

The Court of Appeal for Ontario dismissed J.E.'s appeal from his designation as a dangerous offender and the imposition of an indeterminate sentence.

The court found no reversible error in the sentencing judge’s assessment of the evidence, including expert psychiatric testimony regarding the appellant’s risk and treatability.

The court held that the sentencing judge was entitled to conclude that J.E. posed a high risk of recidivism and that available controls and treatments would not adequately manage his risk to the public.

The appellant, B.B., was convicted of sexual assault and two counts of common assault against his stepdaughter, N.S., following a trial in the Superior Court of Justice.

He appealed only the sexual assault conviction, arguing that the trial judge misapprehended the evidence regarding the timing of the most serious sexual assaults and erred in rejecting the testimony of S.B., the complainants’ mother.

The majority of the Court of Appeal dismissed the appeal, finding no misapprehension of the evidence.

However, Dawe J.A., dissenting, would have allowed the appeal and ordered a new trial, concluding that the trial judge’s error regarding the timing of the assaults played an essential part in the reasoning process leading to conviction.

The Court of Appeal for Ontario allowed the Crown's appeal from sentence, finding that the sentencing judge erred in imposing a conditional sentence and in failing to order a consecutive sentence for participation in a criminal organization.

The court also set aside a restitution order that was not directed to a victim.

In light of the respondent's rehabilitation and time already served, the court substituted a sentence reflecting appropriate credit and stayed the remainder of the sentence and the criminal organization conviction.

The applicant, Thomy Baez-Eusebio, brought two applications: a disclosure application for the Information to Obtain (ITO) for a search warrant under the Liquor Licence Act, and a Charter application seeking exclusion of evidence obtained from a Honda Civic, alleging a breach of his section 8 Charter rights.

The court dismissed both applications, finding that the applicant lacked standing to challenge the Liquor Licence Act search warrant and that the police had reasonable grounds to seize and search the Honda Civic.

The court also denied leave to cross-examine the affiant of the ITO, finding no misleading statements or deficiencies in the warrant process.

The accused, Elmi Ibrahim and Samatar Hamadu, brought an application to quash a search warrant issued under the Controlled Drugs and Substances Act for premises at 2646 Victoria Ave East, Thunder Bay.

They argued that the Information to Obtain (ITO) lacked reasonable grounds and contained misrepresentations regarding the primary residence of a key subject, 'Easy'.

The court, applying the Garofoli process, found that the redacted ITO, when read as a whole and considering the affiant's experience and corroborated confidential informant information, provided sufficient reasonable and probable grounds to believe evidence of drug trafficking would be found at the location.

The court dismissed the application to quash the warrant, ruling the evidence admissible at trial.

The applicant sought to exclude evidence seized during two police operations, alleging violations of sections 8 (unreasonable search and seizure) and 9 (arbitrary detention) of the Canadian Charter of Rights and Freedoms.

The evidence was obtained from a residence and vehicle on April 16, 2021, and from the applicant's person and vehicle on April 20, 2021, in connection with a drug trafficking investigation.

The court dismissed the applications, finding that the police had reasonable grounds for the search warrants and subsequent arrest and searches, based on extensive wiretap and surveillance evidence.

The appellant, Hopeton Wright, appealed his convictions for three counts of sexual interference and three counts of sexual assault (stayed) in relation to two of his common-law partner’s children.

The appeal raised two grounds: the trial judge's admission of similar fact evidence from another child of his common-law partner, and the trial judge's instructions to the jury on prior inconsistent statements.

The Court of Appeal dismissed the appeal, finding no error in the trial judge's decision to admit the similar fact evidence, which was highly probative of a specific propensity, and no consequential error in the jury instructions regarding prior inconsistent statements.

The appellant appealed his conviction for attempted murder using a firearm, arguing the trial judge erred by failing to consider the victim's provocative conduct in assessing the specific intent to kill.

The Court of Appeal dismissed the appeal, finding that the trial judge's reasons demonstrated a proper consideration of all circumstances, including the victim's actions, when determining whether the Crown had proven intent to kill beyond a reasonable doubt.

The court also dismissed the application for leave to appeal sentence due to lack of submissions.

The appellant appealed convictions for sexual assault and forcible seizure, arguing the trial judge failed to provide assistance in advancing a s. 7 lost evidence claim.

The alleged lost evidence involved WhatsApp messages on phones seized by police, but the appellant repeatedly refused to provide passwords.

The Court of Appeal dismissed the appeal, finding no viable lost evidence claim as the evidence remained in the appellant's control and police efforts to access the phones were bona fide.

The court also noted the formidable nature of the Crown's case, including an inculpatory email from the appellant.

K.K. sought bail pending his appeal of sexual offence convictions involving minor complainants.

The appeal grounds included claims that his guilty pleas were involuntary due to the trial judge's erroneous discharge of counsel and denial of an adjournment, leading to pressure to plead guilty while unrepresented.

The Court of Appeal granted bail, finding the appeal was "not frivolous" and that K.K.'s surrender could be assured with appropriate conditions.

The court also determined that detention was not necessary in the public interest, considering K.K.'s compliance with previous release terms and the ability of strict bail conditions to mitigate public safety concerns.

The appellant appealed his sixteen-year global sentence for multiple offences, including home invasion, robbery, sexual assault, and firearms offences.

He argued the sentencing judge erred by first determining a global sentence before articulating individual sentences and that the firearms sentences should have been concurrent.

The Court of Appeal dismissed the appeal, affirming that setting a global sentence first is a valid sentencing method in Ontario and that the consecutive nature of the firearms offences was appropriate given their distinct nature and the clear intent of the sentencing judge.

The Crown applied to have the offender designated a long-term offender following convictions for violent sexual assaults.

The court evaluated psychiatric and psychological evidence regarding the offender's risk of reoffending, including actuarial tools like the Static-99R.

The court found a substantial risk of reoffence but a reasonable possibility of eventual control in the community.

The offender was designated a long-term offender, sentenced to 6 years in custody, and subjected to a 10-year long-term supervision order.

The offender was convicted of serious sexual offences in both the Superior Court of Justice and the Ontario Court of Justice.

The Crown sought Dangerous Offender (DO) and Long Term Offender (LTO) designations in both proceedings.

The offender brought a motion for directions, arguing that issue estoppel should prevent the Crown from litigating the same DO/LTO issues twice based on similar factual records.

The Superior Court dismissed the motion, holding that issue estoppel does not apply to individual sentencing decisions and that the Criminal Code explicitly contemplates an offender being subject to multiple LTO designations.

On a Crown application in a judge-and-jury prosecution for sexual assault and sexual interference involving the daughters of the accused's common-law partner, the court admitted evidence from another child of the household as similar fact evidence.

Applying the framework in Handy, the court found the proposed evidence highly probative on the actus reus issue and on the complainants' credibility insofar as it related to whether the charged acts occurred, based on a situation-specific propensity involving pre-pubescent female children of the partner, abuse in the family home, touching of the vaginal area, and assaults occurring while the children slept or awoke.

The court found the witness's account capable of belief and rejected an air of reality to collusion despite opportunities for communication among siblings.

Any moral or reasoning prejudice was found manageable through limiting instructions, and the probative value outweighed the prejudicial effect.