Jack Gemmell

In a criminal appeal from jury convictions for first degree murder and attempted murder, the Court addressed whether lesser included offences of second degree murder and manslaughter had an air of reality and had to be left with the jury.

The majority held the trial judge erred by not leaving those included offences on the murder count, and upheld the order for a new trial on that count.

The Court held the error did not taint the attempted murder convictions and rejected additional challenges regarding jury aids, juror bias, and propensity instructions.

The appeal and cross-appeals were dismissed.

The appellants were convicted of procuring, receiving a material benefit from sexual services, and advertising sexual services.

At trial, the judge applied section 276 of the Criminal Code to restrict the appellants from cross-examining the complainant about her prior work in the sex trade.

On appeal, the Court of Appeal held that section 276 does not apply categorically to sexual services and human trafficking offences, and that the trial judge erred in applying it to restrict relevant cross-examination.

The Court declined to apply the curative proviso, allowed the appeals in respect of the sexual services offences, and ordered a new trial.

An appeal against a conviction for trafficking MDMA was dismissed.

The appellant, Rajindra Becessar, appealed his conviction for firearm possession, challenging a pre-trial ruling that admitted his statement to police.

The application judge had found breaches of the appellant's s. 8 (search) and s. 10(b) (right to counsel) Charter rights, excluding evidence from the search but admitting the statement.

On appeal, Becessar argued the statement should have been excluded due to the cumulative effect of the breaches, specifically that it was obtained in a manner infringing his s. 8 rights.

The Court of Appeal dismissed the appeal, finding that this argument was not properly raised or supported with evidence before the application judge, thus she made no error in her analysis.

The appellant, Andre Appleton, was convicted of second-degree murder and aggravated assault following a stabbing incident.

On appeal, he argued that the trial judge erred in instructing the jury that evidence regarding a potential third-party suspect (Ibrahim Muhia) was irrelevant and in effectively directing that another individual (SHG) was the second man involved in the fight.

The Court of Appeal found that the trial judge erred by improperly restricting the jury's consideration of evidence that could have raised a reasonable doubt about the appellant's guilt, particularly concerning the identity of the stabber and co-participants.

The Court held that no formal third-party suspect application was required as the Crown had already made Muhia's potential involvement a live issue.

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

The accused, David Eyong-Eyong, brought an application seeking an order to compel the Crown to call specific eyewitnesses or, alternatively, for the court to call them.

The defence argued that the Crown's failure to call these witnesses adversely impacted trial fairness, especially given the lack of audio in video evidence forming the crux of the Crown's case.

The Crown opposed, asserting prosecutorial discretion and arguing that judicial intervention was only warranted for abuse of process.

The court dismissed the application, finding that the applicant had not met the onus for intervention on any standard of review and that the circumstances were not exceptional enough to impact trial fairness, particularly as the defence would have the opportunity to call and examine these witnesses.

The appellant, Jasper Atienza, appealed his conviction for first-degree murder.

He raised three grounds of appeal concerning the trial judge's jury instructions: (1) whether the evidence showed only one vehicle at the shooting scene; (2) the probative value of post-offence association with co-accused Laurie Phan regarding planning and deliberation; and (3) inferring guilt from his failure to disclose his destination when leaving an apartment.

The Court of Appeal dismissed the appeal, finding no reversible error in the jury instructions.

The court affirmed the trial judge's discretion in reviewing evidence, noting the weakness of the two-car theory and that Ms. Phan's acquittal rendered any potential error regarding post-offence association harmless as it negated a joint planning theory.

The court also found no prejudice from the brief reference to the appellant's undisclosed destination.

This appeal concerns a wrongful conviction for manslaughter, stemming from the unreliable expert evidence of disgraced pathologist Dr. Charles Smith.

The appellant, convicted in 1997 for the death of a 17-month-old, sought an acquittal based on fresh expert evidence that contradicted the original "shaken baby syndrome" theory, proposing a "complex fall" as the cause of death.

The court admitted the fresh evidence, including a 911 call transcript and new expert opinions, finding that the modern forensic science undermined the trial evidence.

The court also discounted the appellant's police interview due to coercive interrogation techniques.

Given the lack of reasonable prospect for conviction, the appeal was allowed, the conviction set aside, and an acquittal entered.

The appellants, convicted of first-degree murder and attempted murder, appealed their convictions and sentences.

The Court of Appeal allowed the appeals for first-degree murder convictions, ordering a new trial due to the trial judge's error in restricting routes to liability and failing to leave included offenses (second-degree murder and manslaughter) to the jury.

The court found that the murder and attempted murder charges were not inextricably linked.

The appeals on the attempted murder convictions were dismissed, and leave to appeal the life sentences for attempted murder was granted but the appeals were dismissed, finding no error in principle in the sentencing.

The appellant, Miguel Chacon-Perez, appealed his conviction for second-degree murder.

The appeal raised four grounds: unreasonable verdict, improper Crown closing address, failure to instruct the jury on manslaughter, and error in denying a jury request for witness testimony.

The Court of Appeal dismissed the first three grounds but allowed the appeal on the fourth ground, finding that the trial judge erred by effectively refusing the jury's request for a read-back of crucial witness testimony related to the identity of the assailant, which was the central contested issue.

A new trial was ordered.

The applicants, arrested in a large-scale police investigation, brought an abuse of process motion seeking a stay of proceedings due to systemic delays in holding their special bail hearings.

They argued that their section 11(e) Charter rights were violated, similar to the applicants in a previous case where a stay was granted.

The court found that while the applicants' rights were violated by the delays, the systemic problem in the jurisdiction had been largely rectified following the previous decision.

As the ongoing systemic delay had been addressed, a stay of proceedings was no longer necessary to protect the integrity of the justice system.

The application was dismissed, though the court noted the Charter violations could warrant a sentence reduction if the applicants are convicted.

The appellant, Andrew Bielli, appealed his conviction for possession of proceeds of crime for the benefit of a criminal organization.

The case centered on a police ruse designed to search the appellant and his vehicle without disclosing the true nature of the investigation, leading to the seizure of evidence.

The application judge found breaches of the appellant's Charter rights under ss. 10(a) and 10(b) but admitted the evidence under s. 24(2), finding no s. 8 or s. 9 breach and police good faith.

The Court of Appeal found that the application judge erred in concluding there was a de facto arrest, thus finding a s. 8 breach.

The Court also found errors in the s. 24(2) analysis, particularly regarding the police's good faith and reliance on prior case law, as the Charter violations were planned and deliberate.

The Court concluded that the impugned evidence should be excluded under s. 24(2) of the Charter.

The appellant appealed his conviction for attempted murder and life sentence imposed by the trial judge.

The victim was shot three times at close range at a busy Toronto intersection after exiting a TTC bus, resulting in permanent paralysis.

The appellant challenged the conviction on the basis of eyewitness identification concerns, arguing the trial judge failed to exercise appropriate caution regarding the reliability of the victim's identification.

The appellant also sought to introduce fresh surveillance video evidence and argued the sentence was demonstrably unfit given his age at the time of the offence.

The Court of Appeal dismissed both the conviction appeal and the sentence appeal, finding the trial judge properly assessed the reliability of the identification evidence and that the life sentence was justified given the serious nature of the unprovoked attempted murder committed with a firearm in a public place.

The accused, charged with multiple counts of fraud, brought an application for a directed verdict at the close of the Crown's case.

The Crown alleged the accused defrauded several complainants by promising large returns on investments in his film company, sometimes impersonating a CSIS agent.

The court granted the directed verdict for one count on consent, but dismissed the application for the remaining counts, finding sufficient evidence of a causal connection between the accused's dishonest acts and the complainants' risk of deprivation.

During a trial for first-degree murder, the court held a pre-charge discussion to determine whether the lesser included offences of manslaughter and second-degree murder should be left to the jury.

The Crown argued that neither should be left, while the defence argued both should be available.

Applying the air of reality test, the court found no evidentiary foundation for manslaughter, as the forensic evidence indicated a targeted killing with no signs of a fight gone wrong.

However, the court found a gasping air of reality to second-degree murder, as a properly instructed jury could find the accused had the intent to kill but have a reasonable doubt regarding planning and deliberation.

Consequently, second-degree murder was left to the jury, but manslaughter was not.

During a trial for first-degree murder, the defence requested a jury instruction that the accused's after-the-fact conduct of attempting to collect the deceased's life insurance and death benefits had no probative value.

The Crown argued the conduct was relevant to the financial motive for the murder.

The court dismissed the defence's request, finding that the post-offence conduct was directly relevant to motive, which in turn was circumstantially relevant to the identity of the killers.

The court declined to give a 'no probative value' instruction.

The appellant was convicted by jury of first degree murder in the death of Clifford Fair.

The Court of Appeal allowed the appeal, finding the first degree murder conviction unreasonable and entering an acquittal on that charge.

The court ordered a new trial on second degree murder due to errors in the trial judge's instruction on the use of after-the-fact conduct evidence.

The evidence established that the appellant struck the deceased with an aluminum pipe during a confrontation in the appellant's apartment, but the court found insufficient evidence to support findings of planning and deliberation required for first degree murder.

The trial judge's misdirection permitted the jury to improperly use after-the-fact conduct (burial, dismemberment, and statements) as evidence of intent and planning, rather than limiting its use to establishing that the appellant unlawfully caused the death.