Miscarriage of justice

The appellant was convicted of kidnapping, assault, assault with a weapon, uttering death threats, and a human trafficking offence.

He appealed his convictions, arguing that the trial judge improperly used s. 276 of the Criminal Code to disregard all of the complainant’s evidence regarding her work as a sex worker and made errors in assessing her credibility.

The Court of Appeal found that the trial judge erred by effectively excluding a broad area of evidence related to the complainant's sex trade involvement without providing notice or an opportunity for submissions, which constituted a significant breach of procedural fairness and amounted to a miscarriage of justice.

The court allowed the appeal and ordered a new trial.

The accused, E.F., applied for a mistrial following his conviction for sexual assault and assault, alleging ineffective assistance of counsel.

The court dismissed the application, finding that trial counsel provided meaningful assistance and that the alleged deficiencies did not compromise trial fairness or lead to a miscarriage of justice.

The court emphasized the high bar for granting a mistrial on this ground, the strong presumption of counsel competence, and that tactical decisions by counsel, even if questionable in hindsight, do not necessarily constitute ineffective assistance.

The court also found the applicant's testimony regarding his dissatisfaction with counsel and lack of preparation to be inconsistent and undermined his credibility.

The appellant appealed convictions for sexual assault and uttering threats, raising grounds of inadequate trial interpretation and ineffective assistance of counsel.

The Court of Appeal found that while interpretation issues were minor, trial counsel's failure to investigate and utilize a surreptitious audio recording of the complainant's conversation, which contradicted her testimony on a key credibility point, constituted ineffective assistance.

This failure, combined with the trial judge's misapprehension of evidence, rendered the verdict unreliable.

The appeal was allowed, convictions set aside, and a new trial ordered.

The appellant, Terrance Nahmabin, appealed a finding of Not Criminally Responsible on account of Mental Disorder (NCRMD) for various offences.

The Court of Appeal for Ontario found procedural deficiencies in the original NCRMD proceedings, including an improper plea, lack of inquiry into the appellant's understanding of the NCRMD consequences despite his expressed distress, and insufficient reasons from the trial judge explaining the application of s. 16 of the Criminal Code.

The court emphasized the strict requirement for procedural fairness in NCRMD cases due to the serious liberty deprivations involved.

The appeal was allowed, the NCRMD finding was set aside, and a new trial was ordered.

The Crown applied to quash a motion by the appellant to re-open his conviction appeal.

The appellant, convicted of multiple aggravated assaults and assaults with a weapon, sought to re-open his dismissed appeal, alleging insufficient preparation time and improper consideration of grounds, particularly regarding video evidence and identity.

The Court of Appeal found no reasonable prospect of success for the appellant's motion, concluding his arguments were fanciful and the evidence of guilt overwhelming.

The Crown's application was granted, and the motion to re-open was quashed.

The appellant, S.T., appealed his conviction for sexual assault.

The appeal raised two grounds: the trial judge's findings regarding the appellant's sobriety were unreasonable and erroneous, and the trial judge's finding of partiality in a defence witness was not supported by evidence and led to an erroneous rejection of their testimony.

The Court of Appeal dismissed the appeal, finding no material, reversible error.

The court held that the trial judge's assessment of the appellant's intoxication was within their purview and did not require expert evidence.

While the finding of witness partiality was problematic due to lack of opportunity for the parties to respond, it was deemed not material to the overall assessment of evidence or the trial's outcome, and did not result in a miscarriage of justice.

The appellant, convicted of second-degree murder, appealed on two grounds: the constitutionality of the amended s. 232(2) of the Criminal Code regarding provocation, and alleged errors in the trial judge's jury charge on the Not Criminally Responsible (NCR) defence.

The Court of Appeal declined to rule on the constitutional question, finding it was raised tactically for the first time on appeal and lacked an air of reality.

The court also found no reversible error in the NCR instructions, clarifying that the jury was properly guided on the disjunctive nature of the s. 16 test.

The appeal was dismissed.

Lin Yang appealed his conviction for possession of marijuana for the purpose of trafficking.

The appeal focused on the trial judge's assessment of the credibility of the sole defence witness, Ze Yi Xu, who offered exculpatory evidence.

The Court of Appeal found that the trial judge made two material errors in assessing Mr. Xu's credibility: a misapprehension of evidence regarding vehicle availability and an illogical reasoning error concerning Mr. Xu's delay in informing the police.

These errors were deemed essential to the trial judge's rejection of the witness's testimony.

The appeal was allowed, and a retrial was ordered.

The defendants, excluding Justin Noseworthy, brought a motion to set aside a prior order from January 31, 2023, which had dismissed their motion to adjourn trial and ordered costs against them.

They argued that the plaintiff had misled the court by later increasing the number of witnesses, leading to the trial's adjournment.

The court dismissed the defendants' motion, finding that the additional witnesses would not have changed the original decision to refuse the adjournment.

The court emphasized that reopening a motion is reserved for exceptional circumstances and that the plaintiff's actions did not constitute misleading the court.

The court also maintained the prior order prohibiting further motions without leave due to the parties' history of unnecessary motions.

Costs were awarded to the plaintiff on a substantial indemnity basis due to the defendants' unfounded allegations of misleading the court.

The accused, M.A., brought two post-conviction applications: one under s. 11(b) of the Charter for unreasonable delay, and another to reopen the trial or declare a mistrial based on ineffective assistance of counsel and fresh evidence.

The court found a Charter s. 11(b) violation due to excessive delay (totaling 57 months, well over the 18-month ceiling for provincial courts), staying the original four charges.

Regarding the second application, the court admitted fresh evidence from M.A. and three other witnesses, which seriously undermined the Crown's case.

The court found that trial counsel's decision not to call this exculpatory evidence was not a tactical decision but an error, leading to a miscarriage of justice.

Consequently, the findings of guilt on the remaining charges were set aside, and those charges were dismissed, as the new evidentiary matrix left the judge with a reasonable doubt as to M.A.'s guilt.

This is an appeal by Amadin Asemota from his conviction for assault causing bodily harm and assault with a weapon.

The appellant alleged ineffective assistance of trial counsel, citing various failures including inadequate disclosure review, failure to pursue Charter violations (stolen chain, strip search), improper advice on immigration consequences, breach of the Browne v. Dunn rule, and failure to locate witnesses.

The court found that the appellant failed to establish the factual basis for most of his claims and that trial counsel's conduct did not amount to incompetence.

The court emphasized the deference owed to counsel's strategic decisions, especially given the appellant's uncooperative behaviour and late disclosure of information.

The appeal was dismissed, and the conviction was upheld as safe.

This is a motion brought by Raed Jaser, an appellant in a terrorism-related conviction appeal, seeking production of a post-sentence psychiatric report pertaining to his co-accused, Chiheb Esseghaier.

Jaser argues the report is necessary to support a fresh evidence application on appeal, contending that if Esseghaier was unfit to stand trial, it could constitute a miscarriage of justice for Jaser.

The Crown opposed the production.

The Court of Appeal, applying the Trotta and McNeil factors, found that Jaser met the prima facie entitlement for production.

Given Esseghaier's privacy interests as a non-party, the court ordered the psychiatric assessment to be produced to the panel for in camera inspection, reserving the decision on full production to the parties.

The appellant, convicted of breaking and entering, sought to re-open his dismissed appeal and admit fresh evidence, including his own and his co-accused's affidavits denying his participation.

The Court of Appeal dismissed the application, finding the fresh evidence not reasonably capable of belief due to inconsistencies, implausibilities, and contradictions with trial counsel's evidence and physical evidence.

The court emphasized the finality principle in re-opening appeals and the high threshold for admitting fresh evidence.

The appellant, convicted of second-degree murder, appealed on the ground that the trial judge erred by not providing a specific corrective instruction to the jury regarding a co-accused's counsel's speculative theory of the case.

The co-accused's counsel had suggested, without evidentiary basis, that the appellant was involved in an illegal marijuana operation and owed money, contradicting the appellant's defence that he was extorted by the deceased.

The Court of Appeal found that while the co-accused's counsel's comments were improper and lacked evidentiary foundation, the trial judge's general cautionary instructions to the jury about avoiding speculation and relying only on evidence were sufficient.

The court emphasized the high degree of deference owed to a trial judge's assessment of the impact of improper remarks and the chosen remedial steps.

The appeal was dismissed, as the court concluded that the comments did not cause a substantial wrong or miscarriage of justice.

The appellant, convicted of first-degree murder, appealed on three grounds: the motion judge's alleged error in admitting gang evidence, a claimed miscarriage of justice due to trial severance and the jury being unaware of a co-accused's verdict, and the unreasonableness of the verdict.

The Court of Appeal dismissed the appeal, finding no error in the admission of gang evidence, no miscarriage of justice, and that the verdict was reasonable given the evidence of motive, animus, and association.

The appellant, Vincent Bauer, appealed his conviction for three counts of sexual assault, alleging ineffective assistance of counsel.

The appeal focused on trial counsel's failure to effectively cross-examine the complainant, to put the appellant's denial of the allegations to the complainant, and to raise an unsupported automatism defence inconsistent with the appellant's instructions.

The court found that counsel's actions amounted to incompetence and resulted in a miscarriage of justice, rendering the verdict unreliable.

The appeal was allowed, convictions quashed, and a new trial ordered.

This is an application by the appellant to reopen his appeal, which was previously dismissed as abandoned due to his failure to surrender into custody as required by his bail release order.

The appellant had been convicted of drug-related offences, including possession for the purpose of trafficking, and sentenced to seven years' imprisonment.

The Court of Appeal for Ontario denied the application, finding that the appellant's explanation for his failure to surrender was problematic, his grounds of appeal were not strong, the Crown would be prejudiced by the disposal of evidence, and the principle of finality weighed against reopening the appeal.

The appellant, Andrew Burnett, appealed his conviction for second-degree murder on two grounds: procedural error due to email discussions about jury instructions in his absence (violating s. 650(1) Criminal Code) and a breach of his s. 10(b) Charter right to counsel.

The Court of Appeal found that while procedural errors occurred regarding the email discussions, they did not cause prejudice to the appellant.

The court also upheld the trial judge's finding that there was no breach of the implementational component of s. 10(b) Charter right, as the appellant's desire for counsel was ambivalent and he prioritized understanding the case against him.

The appeal was dismissed.

The appellant, convicted of first-degree murder and robbery, appealed on the sole ground that his trial counsel breached the duty of loyalty, effectively depriving him of counsel.

The appellant argued that counsel acted as amicus curiae rather than defence counsel, undermining his defence through misguided actions and communications with the Crown, including lying to gain trust and sharing defence strategy.

The Court of Appeal dismissed the appeal, finding that while counsel's actions were at times misguided and unethical (e.g., lying about his background), they did not constitute a breach of the duty of loyalty.

The court applied the two-part test for breach of loyalty, requiring an actual conflict of interest and impairment of representation, concluding that counsel's actions, though inadvisable, were not motivated by conflicting loyalties but rather by an attempt to manage a difficult client in a challenging case with strong Crown evidence.

The appellant, Michael Trought, appealed his conviction for possession of cocaine for the purpose of trafficking.

He raised two grounds: unreasonable delay under s. 11(b) of the Charter and ineffective assistance of trial counsel.

The Court of Appeal dismissed the s. 11(b) appeal, finding the transitional exceptional circumstance applied and prejudice was not sufficiently established.

However, the court allowed the appeal on the ground of ineffective assistance, concluding that trial counsel failed to properly advise the appellant on the concept of constructive possession and agreed to a "blended procedure" (where voir dire evidence applied to the trial proper) without the appellant's informed consent.

This failure undermined the appellant's fundamental right to decide whether to testify and rendered the trial unfair.

A new trial was ordered.