Marcella Henschel

The accused, Daniel Kenneth Porter, charged with failing to stop at the scene of a fatal accident, brought an application to exclude evidence obtained by the Crown, alleging a breach of solicitor-client privilege by his former lawyer, Ms. Elme Schmid, under sections 7 and 24(1) of the Canadian Charter of Rights and Freedoms.

The defence argued that Ms. Schmid breached privilege by providing information to the police without explicit waiver, and that the waiver was not voluntary.

The Crown contended that Ms. Schmid's advice was competent, Porter fabricated his account, and any remedy would not apply to a non-state actor.

The court found Porter's evidence unreliable and incredible, preferring Ms. Schmid's testimony, and concluded there was no breach of solicitor-client privilege, finding an implied waiver.

The application to exclude evidence was dismissed, and the trial was ordered to proceed.

The appellant was convicted of multiple firearms offences after police found guns in a duffle bag at his mother's house.

On appeal, he argued the trial judge erred by admitting a recanting witness's videotaped statement under the principled exception to the hearsay rule, by improperly using his pre-trial silence to reject his testimony, and by entering multiple convictions for the same delict.

The Court of Appeal dismissed the appeal against the convictions, finding the hearsay statement met threshold reliability and the trial judge did not rely on pre-trial silence.

However, the court applied the Kienapple principle to enter conditional stays on several duplicate counts.

The appellant, who was unrepresented, pleaded guilty to theft, threatening to use a weapon, and uttering a death threat.

Over his objection, the Crown requested an assessment for criminal responsibility.

The trial judge held a summary hearing, admitted the assessment report, and entered not criminally responsible (NCR) verdicts for the assault and threat charges without informing the appellant of his procedural rights.

The Court of Appeal allowed the appeal, finding that the trial judge failed to ensure the unrepresented appellant understood his rights to testify, call evidence, or cross-examine the report's author, resulting in a miscarriage of justice.

A new trial was ordered.

This was a sentence appeal from the Ontario Court of Justice.

The appellant argued procedural unfairness in sentencing because the trial judge imposed a sentence considerably above the Crown's submission without inviting further submissions and refused to allow the appellant to speak before sentence.

The Court of Appeal found it sufficient to resolve the appeal on those two issues.

Given the time already served and the appellant's continuing commitment to treatment, leave to appeal was granted and the sentence was reduced to time served, with probation terms remaining in force subject to any future variation application.

The appellant pled guilty to manslaughter and was sentenced to nine years globally, with a net sentence of seven years after credit for pre-trial custody.

He appealed the sentence, arguing the sentencing judge erred in his treatment of mitigating factors and in failing to provide 2:1 credit for pre-sentence custody.

The Court of Appeal found no error in the treatment of mitigating factors but concluded the sentencing judge made a mathematical or principled error by failing to apply the intended 2:1 credit.

The appeal was allowed and the net sentence was varied to five and a half years.

The young person appealed convictions for possession of a dangerous weapon, assault with a weapon, and pointing a firearm.

The Court of Appeal upheld the trial judge's reliance on a witness's testimony to support identification evidence.

However, the Crown conceded that the trial judge erred in law by finding that an imitation firearm could support a conviction for pointing a firearm.

The Court declined to apply the curative proviso, set aside the conviction for pointing a firearm, and ordered a new trial on that count.

The remaining convictions were upheld.

The appellant appealed his conviction for weapons offences, arguing the trial judge erred in dismissing his application for a stay of proceedings based on unreasonable delay under s. 11(b) of the Charter.

The appellant challenged the trial judge's attribution of intake and institutional delay, as well as the assessment of prejudice.

The Court of Appeal found the trial judge reasonably characterized the initial four months as neutral intake and properly allocated the delay caused by an adjournment.

The court also upheld the trial judge's finding that the appellant failed to establish significant prejudice.

The appeal was dismissed.

The appellant appealed his sentence, primarily challenging the length of the custodial term.

The Court of Appeal noted that the appellant had already served the jail sentence.

Given the appellant's record and the serious nature of the offences, the court declined to reduce the driving prohibition and found the five-year probation period to be entirely appropriate.

The appeal was dismissed.