Howard Leibovich

The appellant appealed his conviction for first degree murder in the death of Ernesto Agsaulio.

The appellant had planned and deliberated the murder of his ex-wife Maria Ching.

When attempting to carry out this plan, Agsaulio intervened to prevent the appellant's entry into the house, and during the ensuing struggle, the appellant mortally wounded Agsaulio.

The trial judge instructed the jury that planning and deliberation regarding the murder of the intended victim (Ching) could elevate an unintended victim's murder (Agsaulio) to first degree murder if committed in the course of carrying out the plan.

The Court of Appeal found this instruction erroneous and substituted a conviction for second degree murder.

The appellant appealed his conviction for second-degree murder on three grounds: (1) whether the trial judge erred in refusing to put the defence of provocation to the jury; (2) whether the trial judge misdirected the jury on the use of evidence that the appellant did not apply the brakes immediately after striking the victim; and (3) whether the trial judge erred in failing to recuse Crown counsel for failing to disclose certain information communicated by a Crown witness.

The Court of Appeal dismissed all three grounds of appeal and upheld the conviction.

The appellant was convicted of second degree murder for stabbing the deceased 19 times during a fight.

The appellant had armed himself with a steak knife in anticipation of a confrontation and carried it openly as he approached the deceased.

When the deceased said "you're dead," the appellant responded "bring it . . . game on." The trial judge refused to instruct the jury on the partial defence of provocation.

The Court of Appeal upheld this decision, finding that the words "you're dead" did not cause the appellant to lose his power of self-control and act on the sudden, as required by the provocation defence.

The appellant's preparation for the confrontation and his state of readiness negated any element of surprise necessary for provocation.

A Toronto police officer was convicted of attempted murder for firing a second volley of six shots at a knife-wielding man lying on a streetcar floor, 5.5 seconds after an initial volley that had fatally wounded the victim.

The officer was acquitted of second-degree murder.

The Court of Appeal upheld the conviction and the six-year sentence, finding the verdicts were not inconsistent and that the mandatory minimum sentences for attempted murder with a firearm do not violate the Charter.

The court rejected the officer's constitutional challenges under sections 7 and 12 of the Charter and dismissed his application to adduce fresh evidence on appeal.

The appellant was convicted by two separate juries of two murders committed in January 2008.

On appeal, the appellant challenged four pre-trial evidentiary rulings: (1) the admissibility of his statements to police on April 15 and 16, 2008; (2) the admissibility of shotgun shells found during a lawful traffic stop on January 15, 2008; (3) the admissibility of a statement made on February 19, 2008 regarding ammunition; and (4) the admissibility of bad character evidence.

The Court of Appeal upheld all evidentiary rulings and dismissed the appeals.

The appellant was convicted of second degree murder after striking the victim with his truck during an altercation.

On appeal, the appellant argued the trial judge erred in instructing the jury on the defence of accident, the use of after-the-fact conduct, and the fault element for murder.

The Court of Appeal agreed, finding the errors compromised the jury's ability to determine the fault element.

The Court dismissed the appeal from conviction but substituted a conviction for manslaughter and imposed a sentence of time served, as jointly proposed by the parties.

The appellant was convicted of first degree murder, sexual assault causing bodily harm, and kidnapping of an eight-year-old child.

On appeal, he argued the trial judge erred in his instructions on post-offence conduct, in admitting a portion of the co-accused's videotaped statement for the truth of its contents, and in failing to give a Vetrovec warning regarding the co-accused's testimony.

The Court of Appeal dismissed the appeal, finding no evidential foundation for an accessory after the fact defence, that the videotaped statement met threshold reliability, and that the trial judge properly exercised his discretion to omit a Vetrovec warning at the tactical request of defence counsel.

During an appeal involving allegations of ineffective assistance of counsel, the appellant's trial counsel retained his own lawyers.

Trial counsel's lawyers inadvertently disclosed a letter between trial counsel and themselves to the appellant's appeal counsel.

Trial counsel brought a motion for the return of the document, asserting solicitor-client privilege.

The Court of Appeal granted the motion, finding that the letter was privileged, the inadvertent disclosure did not constitute a waiver, and the innocence at stake exception did not apply to abrogate the privilege.

The appellant pled guilty to possession of stolen property, attempted break and enter, and break and enter, receiving a 42-month sentence and a lifetime weapons prohibition under s. 109(3) of the Criminal Code.

He appealed the weapons prohibition, arguing there was no violence used, threatened, or attempted.

The Court of Appeal found that the appellant's actions, which he admitted scared the victims, constituted an implied threat of violence.

The appeal was dismissed, but the prohibition was varied to 10 years at the Crown's request.

The appellant appealed his conviction, arguing that the trial judge erred in drawing an inference of knowledge from circumstantial evidence and reversed the onus of proof.

The appellant also sought to tender fresh evidence.

The Court of Appeal dismissed the appeal, finding that the circumstantial evidence pointed to only one rational conclusion and the trial judge did not reverse the onus of proof.

The court declined to admit the fresh evidence due to the lack of a motion and its irrelevance.

The appellant pleaded guilty to manslaughter in 1992 in connection with the death of her stepdaughter, largely based on the pathology evidence of Dr. Charles Smith.

Decades later, fresh expert evidence unanimously discredited Dr. Smith's findings regarding the cause and mechanism of death.

The Court of Appeal admitted the fresh evidence, finding that the original guilty plea was uninformed and the conviction unreasonable.

The appeal was allowed, the conviction was set aside, and an acquittal was entered.

The appellant appealed his conviction for first-degree murder, arguing the trial judge erred in instructing the jury on unlawful confinement as a basis for first-degree murder, and in relating the evidence of his intoxication and cocaine withdrawal to the requisite intent for murder.

The Court of Appeal dismissed the appeal, finding that the initial restraint of the victim was a distinct act from the subsequent killing, and that the trial judge's instructions on intent and the evidence were adequate.

The appellant pleaded guilty to aggravated assault after inflicting a life-threatening stab wound to the victim's neck and was sentenced to two years less a day imprisonment, plus 7 months of pre-sentence custody credit.

She appealed the sentence, arguing the sentencing judge erred in stating he could not go lower.

The Court of Appeal dismissed the appeal, finding the judge meant a lower sentence was inappropriate, not legally prohibited, and that the sentence was fit given the serious nature of the offence and the appellant's prior conviction for a similar offence.

The appellant was convicted of second degree murder.

At trial, the Crown relied on the testimony of a witness whose memory of seeing the appellant near the crime scene was refreshed through hypnosis, as well as similar fact evidence from a former girlfriend.

The Supreme Court of Canada allowed the appeal and ordered a new trial, holding that post-hypnosis evidence is presumptively inadmissible because it does not meet the reliability requirements for novel scientific evidence.

The Court also found that the similar fact evidence lacked sufficient probative value to outweigh its prejudicial effect, and the curative proviso could not be applied.

The Crown appealed an order transferring a 17-year-old charged with second degree murder from ordinary court to youth court under the Young Offenders Act.

The appeal turned on whether the respondent had shown likely rehabilitation within the seven-year dispositional period, given psychiatric evidence of schizophrenia and possible conduct disorder.

The court held that the youth court judge misconstrued and misapplied the psychiatric evidence by making a definitive finding excluding conduct disorder despite significant evidentiary gaps.

Because the respondent failed to establish likely rehabilitation within the statutory period, the transfer order was set aside and the matter was directed to remain in ordinary court.

The appellant appealed conviction and sentence, arguing error in the admission and use of a letter, improper reliance on sexual activity evidence as bad character evidence, and unfair cross-examination.

The court held that although the Crown had no basis to tender the letter in its case in chief, no prejudice resulted because the appellant would inevitably have testified and the letter could then have been used in cross-examination.

The court further found the trial judge used the impugned evidence only in assessing credibility and not for propensity reasoning.

The appeal was dismissed.

The appellant appealed his convictions for sexual assault and unlawful confinement to the Supreme Court of Canada.

The Court dismissed the appeal from the bench, adopting the reasons of the majority of the Court of Appeal.