Neill Fitzmaurice

The Court of Appeal for Ontario allowed the appeal of P.P. from convictions for assault, sexual assault, uttering threats, unlawful confinement, and attempted extortion, setting aside the convictions and ordering a new trial.

The court found that the trial judge made errors by relying on unsupported assumptions about arranged marriages, improperly relying on an evidentiary fact without giving counsel an opportunity to make submissions, and drawing conclusions based on government COVID protocols without evidentiary foundation.

These errors rendered the convictions unsafe.

The decision addresses a constitutional challenge to section 16(3) of the Immigration and Refugee Protection Act (IRPA) regarding the search of digital devices at the border.

The court finds that the provision is unconstitutional as it permits searches of digital devices without any threshold, and declares it null and void as against the applicant, Kerwin Sonny.

However, the court declines to exclude the evidence obtained from the search, applying the Grant analysis and finding that the state conduct was not serious, the impact on the applicant was substantial, but society’s interest in adjudication on the merits favoured admission.

The decision also clarifies the scope of standing for Charter challenges and the limits of remedies for third-party Charter violations.

The appellant appealed his convictions for attempted murder, arguing that the trial judge erred in assessing the mens rea required for attempted murder by wrongly attributing the actions of other shooters to him, and that the verdicts on four of the five convictions were unreasonable.

The Court of Appeal dismissed the appeal, finding no error in the trial judge's consideration of the appellant's specific intent.

The court held that the evidence amply supported the findings that this was a pre-planned, deliberate attack by shooters working in concert, and that the only reasonable inference was that all shooters had the specific intent to kill the victims.

The applicant, convicted of sexual assault, assault, and assault by choking, along with breaches of court orders, and sentenced to five years' imprisonment, applied for bail pending appeal.

The Court of Appeal dismissed the application, finding that the applicant failed to demonstrate that his detention was not necessary in the public interest.

The court emphasized the high enforceability interest due to the seriousness of the crimes and the applicant's history of violating court orders designed to protect the complainant, which outweighed the reviewability interest, as the grounds of appeal were not strong.

The appellant, Clifton Vassel, appealed his conviction for first-degree murder, arguing that the verdict was unreasonable regarding planning and deliberation, and that the jury instructions on this element were flawed.

The Court of Appeal dismissed the appeal, finding that the evidence was sufficient for a reasonable jury to conclude planning and deliberation, and that the trial judge's instructions adequately outlined the relevant evidence, even if not exhaustive.

The accused, a 20-year-old first-time offender, pleaded guilty to possessing a loaded prohibited firearm.

The court considered the serious nature of the offence, emphasizing denunciation and general deterrence, but also significant mitigating factors including the accused's youth, lack of criminal history, guilty plea, and particularly the "egregious" and "intolerable" conditions endured during 477 days of pre-sentence custody.

Accepting a joint submission, the court sentenced the accused to time served (credited as 30 months) followed by a three-year probation order, a secondary DNA order, forfeiture, and a firearms prohibition.

The appellant, David Norris, appealed his indeterminate sentence as a dangerous offender, arguing the sentencing judge erred in reversing the onus of proof, misapprehending psychiatric evidence, and misusing Correctional Services Canada evidence.

The Court of Appeal dismissed the appeal, finding the sentencing judge applied the correct legal framework despite a misstatement on onus, properly considered the psychiatric evidence, and appropriately relied on the Correctional Services Canada evidence regarding supervision differences.

Adil Zeno, convicted of accessory after the fact to murder, brought a post-verdict application for a stay of proceedings under ss. 7 and 24(1) of the Charter, alleging abuse of process by the Crown.

The alleged abuse primarily related to a separate murder prosecution and the Crown's position on bail.

The court dismissed the application, finding that the alleged misconduct was not related to the current proceeding and that alternative remedies, such as seeking damages in the other proceeding, were available.

The court emphasized that a stay of proceedings is a drastic remedy reserved for the 'clearest of cases' and that impugned conduct must be related to the proceeding before the court.

The defendant, Adil Zeno, brought a Charter application to exclude video evidence from a cell phone, alleging breaches of his rights under sections 8, 9, and 10(b) of the Canadian Charter of Rights and Freedoms.

The court found that while there was a breach of the defendant's section 10(b) right to counsel due to an unreasonable delay, and accepted for the purpose of the application that there was a section 8 breach related to the search warrant for the cell phone, these breaches were not serious enough to warrant exclusion of the evidence under section 24(2) of the Charter.

The court found the police acted in good faith, and the evidence was reliable and relevant to the Crown's case.

The application to exclude evidence was denied.

The defendant, Adil Zeno, was convicted of being an accessory after the fact to murder.

This decision outlines the reasons for his sentence.

The court considered aggravating factors such as his criminal record, lack of coercion, and the compounding of victim suffering, and mitigating factors including his youth and efforts towards rehabilitation.

The Crown sought a sentence of 4-5 years, while the defence sought 18-24 months.

The court imposed a sentence of three and a half years, which was covered by the 44 months of pre-sentence custody, resulting in a sentence of one day in jail in addition to time served.

A 10-year prohibition order and a DNA order were also imposed, but probation was denied.

Sentencing following a jury trial in which one offender was convicted of manslaughter arising from a fatal street shooting and the other was convicted of accessory after the fact to manslaughter.

The court applied the post-jury-verdict sentencing framework to find that the shooter did not intend to kill, acted in response to a threat or use of force, but used unreasonable excessive force by intentionally firing a loaded handgun.

In fixing sentence, the court emphasized denunciation and deterrence for urban gun violence, prior weapons prohibitions, drug trafficking activity, post-offence flight, and the devastating victim impact, while also giving weight to youth, remorse, support, and harsh pre-sentence custody conditions.

The principal offender received 9 years less 49 months' credit, and the accessory received 2 years less 19.5 months' credit, together with DNA orders and weapons prohibitions.

The appellant Crown appealed after the Court of Appeal quashed the respondent's convictions for sexual interference and invitation to sexual touching, finding them inconsistent with an acquittal on sexual assault arising from the same conduct.

The majority of the Supreme Court held that a legal error in the trial judge's jury instructions — misdirecting the jury that the 'force' required for sexual assault differed from the 'touching' required for the other two offences — materially bore on the acquittal while leaving the convictions untouched, thereby reconciling the apparent inconsistency.

The majority restored the convictions, set aside the acquittal, and entered a stay of proceedings on the sexual assault charge pursuant to s. 686(8) of the Criminal Code.

Brown and Kasirer JJ. dissented in part, arguing that the only available remedy on a Crown appeal from a jury acquittal is a new trial, and that the majority's framework invites improper speculation into jury deliberations contrary to the scheme of the Criminal Code and the Court's prior decision in R. v. J.F.