John M. Rosen

The appellant, a young person, appealed his conviction for sexual assault.

The Superior Court of Justice allowed the appeal, finding that the trial judge made material misapprehensions of evidence regarding the complainant's reason for visiting the appellant's house and the appellant's post-incident text messages.

These misapprehensions fatally flawed the trial judge's credibility assessment of the appellant.

Consequently, the court quashed the conviction and ordered a new trial, making it unnecessary to address the sentence appeal.

This decision concerns the sentencing of the defendant for manslaughter, to which he pleaded guilty.

The offence involved the fatal assault of his intimate partner, who was vulnerable due to drug and alcohol consumption.

The assault was brutal and prolonged, resulting in blunt force trauma and internal injuries.

Aggravating factors included the domestic context, victim vulnerability, the vicious nature of the assault, the defendant's failure to summon immediate medical aid, and prior abuse.

Mitigating factors included the guilty plea, sincere remorse, youthful first offender status, harsh pre-sentence custody conditions, rehabilitative efforts, and strong family support.

The court balanced these factors, imposing a sentence of eight years in jail, less pre-sentence custody credit.

The appellant was convicted of first degree murder by a jury and his appeal to the Court of Appeal for Ontario was dismissed.

On further appeal to the Supreme Court of Canada, the majority allowed the appeal on the ground that the trial judge erred by failing to instruct the jury on the relevance and permitted use of evidence relating to the accused's mental health when charging on the element of intent for murder.

The majority found no error in the trial judge's failure to provide a limiting instruction regarding after-the-fact conduct evidence.

The conviction was set aside and a new trial ordered.

Kasirer J. dissented, finding the jury charge adequate in light of all the circumstances.

The appellants, U.K. and R.P., appealed their convictions for sexual assault, arguing the trial judge erred in jury instructions regarding fabrication as post-offence conduct and the application of the W.(D.) principles.

The Court of Appeal found that the trial judge erred by instructing the jury on fabrication of trial evidence without independent evidence, and by providing a deficient fabrication instruction that failed to distinguish between disbelieved and fabricated evidence, explain independent evidence, or require consideration of alternative explanations.

Furthermore, the trial judge erred in the W.(D.) instruction by conflating the appellants' evidence and treating defence evidence as an all-or-nothing proposition.

These errors were deemed prejudicial, going to the heart of credibility assessment and the burden of proof.

The court declined to apply the curative proviso.

The appellant, Marvin Smith, appealed his dangerous offender designation and indeterminate sentence, imposed after pleading guilty to aggravated assault, intimidation of a justice system participant, and weapon possession.

The central issue was whether the sentencing judge erred in interpreting "pattern of persistent aggressive behaviour" under s. 753(1)(a)(ii) of the Criminal Code, specifically regarding a six-year gap in his criminal history and the admission of hearsay evidence.

The Court of Appeal dismissed the appeal, finding that the sentencing judge correctly concluded the appellant exhibited a pattern of persistent aggressive behaviour, notwithstanding the gap, and that the indeterminate sentence was appropriate given the high risk of reoffending and intractability.

The Crown appealed the acquittal of William Whatcott on a charge of willfully promoting hatred against gay men, stemming from the distribution of flyers at the 2016 Toronto Pride Parade.

The trial judge had acquitted Whatcott, finding the flyers did not constitute hate speech and excluding expert evidence on anti-gay discrimination tropes and evidence of prior discreditable conduct.

The Court of Appeal allowed the Crown's appeal, finding the trial judge erred in excluding the expert evidence, which was necessary to understand how the flyers perpetuated negative stereotypes and promoted hatred in a broader social and historical context.

A new trial was ordered.

The offender, Dylan Dolman-Kencher, pleaded guilty to exploiting a person under 18 (s. 279.011(1) Criminal Code) and breach of probation (s. 733.1(1) Criminal Code).

The Crown sought a six-year sentence, while the defence sought five years.

The court considered aggravating factors, including breach of trust, victim vulnerability, provision of drugs, and prior breach of probation, and mitigating factors such as youth, guilty plea, and harsh pre-trial custody conditions (Duncan credit).

The court imposed a six-year sentence, reduced by a nine-month Duncan credit and a 1.5:1 Summers credit for 792 days of pre-trial custody, resulting in a remaining sentence of 2 years less 2 days, plus 6 months concurrent for the probation breach, followed by two years probation.

The appellant, Jemaal Wilson, appealed his convictions for human trafficking, receiving material benefit, making and distributing child pornography, and procuring, as well as his global seven-year sentence.

The Crown conceded an acquittal for the procuring conviction and a conditional stay for one material benefit conviction (Kienapple principle).

The Court of Appeal found the trial judge erred in applying an overly narrow definition of "control" for human trafficking but upheld the conviction by amending the indictment to include "direction or influence," finding no prejudice to the appellant.

The Court dismissed the appeal regarding the fault element of human trafficking and the complainant's credibility.

On sentencing, the Court found the global seven-year sentence fit, despite the trial judge's error in considering a subsequent manslaughter conviction as an aggravating factor, and clarified that pre-sentence custody should apply to all counts.

The appellant was convicted of first-degree murder after strangling a man during a sexual encounter in a park.

On appeal, the appellant argued that the trial judge made several errors in the jury instructions, specifically regarding the required state of mind for murder, the appellant's mental health, intoxication, the application of reasonable doubt to exculpatory statements, and after-the-fact conduct.

The Court of Appeal dismissed the appeal, finding that the jury charge, when read as a whole and in the context of the trial, properly equipped the jury to decide the case and contained no reversible errors.

The accused, K.F.C., was charged with two counts of sexual assault against his elderly mother's caregiver, Q.Z. The alleged assaults occurred on June 29, 2019.

The case hinged on the credibility and reliability of the complainant's and the accused's conflicting accounts.

The court found significant inconsistencies and shifts in the complainant's testimony, particularly regarding injuries, phone calls, and prior statements to police, which undermined her credibility.

While the court also had misgivings about the accused's explanations for certain phone calls and timeframes, it ultimately found that the Crown had not proven the essential elements of the offences beyond a reasonable doubt.

The accused was acquitted on both counts.

The accused was convicted at trial of second degree murder after stabbing the deceased six times during a bar altercation.

The majority of the Court of Appeal overturned the conviction and ordered a new trial, finding an air of reality to the defence of provocation.

The Crown appealed as of right.

The Supreme Court of Canada, applying a correctness standard of review, found no error in the trial judge's determination that there was no air of reality to the provocation defence.

On the evidence, the accused did not act 'on the sudden' before passion could cool — his reaction was the culmination of an altercation he both instigated and anticipated, and he had time and opportunity to reflect before stabbing the deceased.

Three defendants, Levi Alexander, Vejay Alexander, and Lamar Cyrus, pleaded guilty to manslaughter after a planned robbery of a modified starter's pistol resulted in the unintentional shooting death of Alex Perlmutter.

Lamar Cyrus also pleaded guilty to unauthorized possession of a prohibited firearm.

The court accepted joint sentencing recommendations, emphasizing the egregious nature of the offence, the defendants' disregard for court orders (firearms prohibitions, probation conditions), and their serious criminal records.

Mitigating factors included the guilty pleas (though late) and the harshness of pre-sentencing custody during the COVID-19 pandemic.

The victim's family provided impact statements detailing their profound loss.

The appellant, Ahmad Durani, appealed his convictions for criminal negligence causing death while street racing and failing to remain, and his global sentence of 5 years' imprisonment.

The convictions stemmed from a street race that resulted in a fatal collision.

The appellant argued the trial judge erred in analyzing the actus reus and mens rea of criminal negligence and in applying the presumption for failing to remain.

The Court of Appeal dismissed both conviction and sentence appeals, finding the trial judge's conclusions were rooted in evidence and that the appellant's conduct constituted a marked and substantial departure from the norm.

The court also found the trial judge correctly rejected the appellant's statements as "evidence to the contrary" for the failing to remain charge.

The accused was charged with willfully promoting hatred against gay men under s. 319(2) of the Criminal Code after distributing anti-gay flyers at the 2016 Toronto Pride Parade.

The flyers contained graphic images and medical claims about the dangers of the 'homosexual lifestyle', alongside religious messaging.

The court found that while the flyers were offensive and contained exaggerations, they fell into the 'grey zone' between legitimate expression and hate speech, lacking the hallmarks of extreme vilification.

The court also found a reasonable doubt regarding the accused's specific intent to promote hatred, resulting in an acquittal.

The Crown brought an application for an order permitting court security officers to place soft, silent shackles on the young person during his trial for second-degree murder.

The young person opposed the use of shackles, arguing that enhanced procedural protections under the Youth Criminal Justice Act required the least restrictive measures.

The court granted the application, finding that silent shackles balanced the need for courtroom security and the prevention of escape with the young person's dignity and the presumption of innocence, as the shackles would not be visible to the jury.

The young person, charged with second-degree murder, brought a pre-trial application for directions regarding jury selection procedures.

The case had attracted significant pretrial publicity.

The court established a comprehensive jury selection protocol, including liberal pre-screening, specific anti-bias instructions, and a focused challenge for cause process to address potential partiality from media exposure.

The trial judge determined she would ask the challenge questions and adjudicate the challenges individually with other prospective jurors excluded.

The Crown applied to qualify an expert witness to testify on the history and tropes of anti-gay discrimination in the trial of the accused for willful promotion of hatred.

The accused had distributed flyers at the Toronto Pride Parade.

The court applied the Mohan criteria and found that while the expert was qualified and capable of giving unbiased evidence despite his advocacy background, the evidence was not necessary.

The court held that a properly instructed jury could determine whether the flyer constituted hate speech without expert assistance.

Furthermore, the court found that the cost-benefit analysis favoured exclusion due to the high risk of distracting the jury with debates over religious beliefs and political values.

The application was dismissed.

The appellant, Anthony Alas, appealed his conviction for second-degree murder, arguing the trial judge erred by not leaving the defence of provocation with the jury, admitting his police statement, and inadequately charging the jury.

The Court of Appeal allowed the appeal on the first ground, finding that the defence of provocation had an air of reality and should have been considered by the jury, despite trial counsel's concession.

A new trial was ordered.

The court found no merit in the other two grounds of appeal.

The Crown brought an application to introduce flyers distributed by the accused in Saskatchewan in 2000 and 2001 as evidence of motive in a hate speech trial.

In an addendum to previous reasons, the court held that while two of the flyers were capable of showing animus towards gay people, their prejudicial effect outweighed their probative value.

The Crown's application to introduce the Saskatchewan flyers was dismissed.

The accused, Mato Josipovic, applied for judicial interim release (bail) pending a new trial for second-degree murder, citing the potential lethal impact of the COVID-19 pandemic in detention and probable trial delays.

The court considered the primary, secondary, and tertiary grounds for detention under the Criminal Code.

While the primary ground (flight risk) was satisfied, the court found the Crown's case to be overwhelming and the gravity and circumstances of the offense (a public, brutal execution involving multiple shots and danger to bystanders) necessitated detention on the tertiary ground to maintain confidence in the administration of justice.

The specific risks posed by COVID-19 in the detention centre were not found to be higher than in the general population, and potential trial adjournments were deemed uncertain at the time of the application.

The bail application was denied.