Maija C. Martin

During a jury trial for importing cocaine, the accused raised the defence of duress, testifying she and her son were forced at gunpoint to carry the drugs.

In cross-examination, the Crown suggested an alternate theory that the accused initially agreed to carry the drugs voluntarily but was only coerced when the perpetrators forced her son to participate.

The accused denied this.

The court ruled that the Crown could not advance this alternate theory to the jury, finding it lacked an air of reality and was purely speculative, as there was no direct or circumstantial evidence to support it.

The Crown appealed the respondent's acquittals on drug trafficking and firearms charges, which followed a successful pre-trial Charter application that excluded evidence obtained via a general warrant and subsequent search warrant.

The reviewing judge had excised portions of the Information to Obtain (ITO) based on a finding that the respondent had a reasonable expectation of privacy in video surveillance footage from a condominium's publicly accessible vestibule.

The Court of Appeal held that the reviewing judge erred in this finding, as the respondent had no control over the vestibule, it was accessible to the public, and the information obtained did not significantly engage his informational privacy interests.

With the video evidence included, there were sufficient grounds to issue the general warrant, and it was in the best interests of the administration of justice.

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

The applicants, Lakhpreet Brar and Sukhvir Singh, sought a stay of proceedings under section 24(1) of the Charter due to a breach of their section 11(b) right to be tried within a reasonable time.

The court applied the Jordan framework, calculating the total delay for Brar as 22 months and 10 days, and for Singh as 24 months and 8 days, both exceeding the 18-month Provincial Court ceiling.

The court found minimal defence delay (3 days for Brar, 4 days for Singh) and rejected arguments that COVID-19 or the case's complexity constituted exceptional circumstances justifying the delay.

Consequently, the court found a breach of the applicants' Charter rights and ordered a stay of proceedings for both.

The Crown appealed the seven-year sentence imposed on the respondent for attempted murder of his pregnant intimate partner.

The Court of Appeal found that the sentencing judge erred in principle by failing to adequately apply the primary sentencing objectives of denunciation and deterrence, particularly in a domestic context, by misunderstanding the aggravating impact of planning and deliberation, and by misidentifying the appropriate sentencing range.

The Court emphasized that rehabilitation should not outweigh denunciation and deterrence in such serious cases and that sentencing ranges evolve with societal understanding of domestic violence.

The Court also found an error in the application of "Duncan" credits, which were treated as a direct reduction rather than a mitigating factor.

The appeal was allowed, and a sentence of 15 years imprisonment was substituted, less credit for time served.

The appellant appealed his convictions for importing heroin, possessing heroin for the purpose of trafficking, and possessing proceeds of crime over $5,000, and sought leave to appeal his global sentence of 12 years.

The Court of Appeal dismissed the appeal, finding no reversible errors in the trial judge's refusal of a mistrial due to non-disclosure of alternate suspects, the handling of eyewitness identification evidence (applying the curative proviso), the admission of police opinion evidence, or the instructions on post-offence conduct.

The court also dismissed the sentence appeal, finding the 12-year global sentence fit given the seriousness and quantity of the drugs involved.

The appellant, Tyrell Stewart, appealed convictions for unlawful possession of a firearm with ammunition and possession of a firearm while prohibited.

The central issue at trial was the appellant's possession of a handgun and ammunition found during a search warrant execution at a basement apartment.

The trial judge inferred knowledge and control based on circumstantial evidence, including the appellant having keys to the premises and a "lived-in quality" of his possessions there.

The appeal raised arguments concerning misapprehension of evidence, reversal of the burden of proof, unreasonableness of the verdict, and lack of formal arraignment.

The Court of Appeal dismissed the appeal, finding the trial judge's conclusions reasonable and that any procedural irregularities did not cause prejudice.

The appellant, Asher Veliz, appealed his convictions for drug trafficking and a related firearm offence, and his global net sentence of 4.5 years.

He argued breaches of his Charter rights under ss. 8, 9, and 10(b) concerning arbitrary arrest, an invalid search warrant, and denial of his right to counsel of choice.

He also appealed the sentence, alleging the trial judge imposed a higher custodial sentence for the drug offence than sought by the Crown without allowing submissions.

The Court of Appeal dismissed all grounds of appeal, finding no errors by the trial judge regarding reasonable and probable grounds for arrest, the validity of the search warrant, or the right to counsel.

The court also found no error in the sentence, noting the global sentence imposed was lower than what the Crown had sought.

The appellant, O.A., appealed convictions for six firearms offences, including discharging a firearm with intent to endanger life, arising from an incident where he allegedly shot at a car.

The appeal challenged the trial judge's findings regarding misapprehension of evidence concerning car dents and the reasonableness of the verdict based on circumstantial evidence.

The Court of Appeal dismissed the appeal, finding no material misapprehension of evidence and that the trial judge's conclusion of guilt was the only reasonable inference available, even without expert evidence or recovery of the firearm.

The court affirmed that common sense inferences are permissible and that the definition of "firearm" under the Criminal Code could include replica or BB guns if they cause similar damage.

The sentence appeal was abandoned.

The appellant, Nicholas Baksh, appealed his convictions for four counts of drug trafficking and three firearm offences.

The appeal raised three grounds: improper use of similar act evidence across trafficking counts, erroneous limitation of cross-examination on an arresting officer's prior discreditable conduct, and unreasonable firearm verdicts based on circumstantial evidence.

The Court of Appeal dismissed the appeal, finding the trial judge correctly distinguished between similar act evidence and cross-count evidence used for identification, properly limited cross-examination consistent with precedent, and that the firearm verdicts were reasonable inferences from the totality of the circumstantial evidence.

Jerome Derby pleaded guilty to four firearm-related offences, including discharging a firearm with intent to endanger life, unauthorized possession of a prohibited firearm, occupying a vehicle with a prohibited firearm, and breach of a weapons prohibition order.

The sentencing judge considered aggravating factors such as the seriousness of the offences, the public setting of the shooting, and the offender's significant criminal record, including a prior manslaughter conviction.

Mitigating factors included the guilty plea, the offender's lived experience with anti-Black racism and poverty, and harsh pre-sentence custody conditions.

The court imposed a global sentence of 9.5 years, which, after credit for pre-sentence custody, resulted in a net sentence of 5 years and 3 months.

The appellant appealed his conviction for aggravated assault, arguing the trial judge erred in assessing eyewitness identification evidence.

The appellant contended that the trial judge improperly treated a witness's testimony as recognition evidence, failed to adequately consider alleged tainting of identification, and erred by not self-instructing on cross-racial identification.

The Court of Appeal dismissed the appeal, finding no error in the trial judge's approach to recognition evidence, her treatment of alleged tainting from a name utterance and Facebook photo, or the absence of a specific self-instruction on cross-racial identification given the trial context and the nature of the recognition evidence.

N.N. pleaded guilty to second-degree murder, while K.H. and Y.N. pleaded guilty to manslaughter, all related to the killing of Hashim Kinani.

The court determined the appropriate youth sentences under the Youth Criminal Justice Act, focusing on the length of the custodial portion and credit for pre-sentence detention.

The decision balanced accountability, rehabilitation, and reintegration, considering the serious nature of the offences, the young persons' backgrounds, and the impact of COVID-19 on their detention conditions.

The appellant, S.R., appealed convictions for sexual assault, touching for a sexual purpose, and invitation to touching for a sexual purpose.

The appeal focused on the trial judge's assessment of the appellant's credibility, specifically alleging material misapprehensions of evidence and a failure to properly assess the evidence of another witness (the complainant's father).

The Court of Appeal found that the trial judge's misapprehensions of the appellant's evidence were substantial and central to the credibility assessment, leading to a miscarriage of justice.

The court also noted an error in failing to assess the credibility of the complainant's father's evidence, which contradicted the complainant's testimony in some respects and supported the appellant's.

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

The appellant, Brandi Mascarenas, appealed her conviction for importing cocaine.

She had received a controlled delivery of appliances containing cocaine.

At trial, her explanation for her involvement was rejected by the judge, who concluded she was a willing participant.

The Court of Appeal dismissed the appeal, finding no error in the trial judge's assessment of knowledge, application of circumstantial evidence principles (R. v. Villaroman), or the burden of proof.

The court found the trial judge's reasons, though not lengthy, were adequate.

The appellant was convicted of importing fentanyl and possession for the purpose of trafficking after a controlled delivery of a package from China.

On appeal, she raised several grounds, including errors in jury instructions on importing, circumstantial evidence, and after-the-fact conduct, as well as the unreasonableness of the verdicts.

The Court of Appeal dismissed these grounds but allowed the appeal based on two errors: the trial judge improperly permitted the Crown to invite an adverse inference against the appellant for testifying after another defence witness, and the trial judge erred in dismissing the appellant's application to adduce evidence of a known third-party suspect.

The convictions were set aside and a new trial was ordered.

The appellants were convicted by jury of second-degree murder and aggravated assault arising from a parking lot altercation in which one victim was fatally stabbed and another was wounded.

The Court of Appeal dismissed both appeals, finding that the first appellant's murder conviction was not unreasonable given multiple available routes to liability under ss. 21(1) and 21(2) of the Criminal Code, and that the second appellant's s. 11(b) application was properly dismissed under the Jordan transitional exception.

The court also rejected challenges to the jury instructions on circumstantial evidence, after-the-fact conduct, manslaughter under s. 21(2), and the Vetrovec caution regarding a mixed witness.

The accused was charged with sexual assault, voyeurism, and child pornography offences against the complainant.

The police seized the accused's cell phones and obtained two search warrants.

The accused applied to exclude the digital evidence obtained from the phones, arguing the police failed to make full and frank disclosure in the Information to Obtain (ITO) by omitting recantation letters and denials from a family member.

The court found the police breached s. 8 of the Charter by conducting warrantless searches of the digital media outside the authorized scope and date ranges.

Applying the Grant test under s. 24(2) of the Charter, the court concluded the Charter-infringing state conduct was serious and had a high impact on the accused's privacy interests.

The digital evidence was excluded.

The appellant was convicted by a jury of possession of various controlled substances for the purpose of trafficking and possession of proceeds of crime, following the execution of a search warrant at an apartment and storage unit.

He appealed his convictions, arguing the trial judge gave an unfair and unbalanced jury charge and erred in refusing to hear a mid-trial Charter application challenging the storage unit search.

He also appealed his five-year sentence.

The Court of Appeal dismissed the conviction appeal, finding the jury instructions adequate and the refusal of the untimely Charter application justified.

The sentence appeal was also dismissed, save for setting aside the victim surcharge.

The Attorney General for Ontario and the Criminal Lawyers' Association of Ontario (CLA) sought leave to intervene in an upcoming appeal concerning the scope of the actus reus of importing contraband.

The Attorney General sought to argue the impact of the definition on provincial prosecutions of importing firearms and child pornography.

The CLA sought to argue that extending the actus reus beyond the immediate entry point disproportionately impacts racialized communities, relying on social context evidence.

The court granted both applications for leave to intervene, finding the proposed arguments and materials relevant and non-controversial.

The appellant, Beverley Bernard, appealed her conviction for importing cocaine.

She claimed she was unaware of the drugs concealed in jars in her suitcase, which a stranger had asked her to bring to Canada.

Her appeal was based on four grounds: the trial judge's failure to conduct a voir dire regarding a Jamaican Patois interpreter, misapprehension of evidence, failure to consider the third branch of W(D), and misapplication of R. v. Villaroman.

The Court of Appeal dismissed the appeal, finding that the voir dire issue was not pursued at trial, any misapprehension of evidence was immaterial to the ultimate findings, W(D) was correctly applied, and the trial judge's reasoning, when read as a whole, correctly applied Villaroman by concluding the appellant's evidence defied common sense and supported a finding of deliberate ignorance.