John M. Rosen

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 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.

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 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 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.

In a criminal trial for wilfully promoting hatred, the Crown sought to introduce various blog posts and internet articles as "proposed motive evidence" to demonstrate the accused's animus towards gay people.

The court dismissed the Crown's application, finding that the proposed evidence was not capable of demonstrating the intense and extreme hatred required for motive.

The court ruled that the prejudicial effect of admitting such evidence, which risked distracting the jury with debates over the accused's political and religious views rather than the elements of the offence, significantly outweighed its limited probative value.

Two brothers were convicted of second degree murder in the shooting death of a gang member.

The Crown's theory was that the brothers acted pursuant to a joint venture to hunt down and kill the victim.

One brother testified he was the shooter and raised defences of self-defence and provocation; the other testified he had no involvement in the killing.

The trial judge's jury instructions improperly conflated the two accused into a single entity by repeatedly using the phrase "John and/or Mato" when describing elements of the offence and defences, failing to distinguish between liability as a perpetrator and liability as an aider or abettor, and assigning the shooter's defences to the non-shooter.

The Court of Appeal allowed the appeal and ordered a new trial, finding the cumulative errors created a significant risk that the jury would approach the liability of the brothers jointly rather than separately.

A 19-year-old first-time offender with no criminal record pleaded guilty to discharging a firearm with intent to endanger life contrary to s. 244(1) of the Criminal Code.

The offender arrived at a confrontation armed with a loaded handgun and fired at a group of men near a vehicle.

He was shot in the arm during the exchange of gunfire.

His bullets struck no one, though innocent bystanders in nearby vehicles were endangered.

The offender subsequently passed the firearm to an associate who fired additional shots.

The court imposed a sentence of five years and six months in custody, with enhanced presentence custody credit of one year to account for a jailhouse beating and gunshot wound suffered while in custody.

The appellant appealed his conviction on a single charge of sexual interference following a judge-alone trial.

The central issue on appeal was whether the trial judge improperly curtailed defence counsel's cross-examination of the complainant's mother regarding cash payments for child support.

The appellant argued the mother had been motivated to encourage false allegations due to family law proceedings.

The Court of Appeal found no unfairness in the curtailment, noting that the central issue turned on the complainant's evidence, which the trial judge found clear and compelling.

The mother's evidence was largely peripheral and provided only corroboration.

The court also refused to admit fresh evidence as it failed to satisfy the Palmer test.

The appeal was dismissed.

A 35-year-old female offender was subject to a dangerous offender application following guilty pleas to aggravated assault and breach of probation.

The Crown sought a dangerous offender designation under section 753(1)(a)(i) and/or (ii) of the Criminal Code with an indeterminate sentence.

The court found the offender met the threshold for a pattern of persistent aggressive behaviour demonstrating substantial indifference to foreseeable consequences under section 753(1)(a)(ii), establishing dangerousness beyond a reasonable doubt.

However, the court declined to impose an indeterminate sentence, finding a reasonable expectation that a determinate sentence with a long-term supervision order would adequately protect the public.

The court imposed 7 years imprisonment (less pre-sentence custody credit of 3 years 9 months, leaving 3 years 3 months to serve) followed by a 10-year long-term supervision order.

This addendum addresses the appellant Ronald Cyr's request for clarification regarding the court's refusal to allow him to advance a new Charter argument on appeal.

The appellant sought to argue that sections 7, 11(d), and 11(f) of the Canadian Charter of Rights and Freedoms required that clause 6 of section 3(1) of the Juries Act be expanded to exclude former auxiliary police officers from jury service.

The court declined to permit this new argument, finding no air of reality to the suggestion of bias and noting that sections 670 and 671 of the Criminal Code provided a complete answer to this ground of appeal.

Three accused were convicted of first-degree murder following a trial involving an undercover police operation.

The appellants challenged the conviction on multiple grounds including: (1) the trial judge's refusal to sever the trial; (2) the admissibility of statements made to an undercover officer; (3) jury management issues during sequestration; and (4) various trial procedure matters.

The Court of Appeal upheld the convictions, finding that joint trial was appropriate despite cutthroat defences, the undercover operation did not violate Charter rights, and jury management issues did not constitute a miscarriage of justice.