Marcus Bornfreund

The offender was convicted of manslaughter after shooting his friend with an illegal, homemade 'slap-gun' during a dispute over a vehicle.

The court found the offender's moral blameworthiness to be high, given his possession of the prohibited firearm to protect his drug dealing business and his failure to disengage when he recognized the victim.

The court sentenced the offender to 10.5 years in prison and, finding exceptional circumstances demonstrating a need for specific deterrence and rehabilitation, ordered that he serve half of his sentence before becoming eligible for parole.

Following a jury verdict finding the applicant guilty of manslaughter, the applicant brought a motion seeking the trial judge's recusal from the sentencing hearing, alleging a reasonable apprehension of bias.

The applicant cited several incidents, including the judge's post-verdict comments to the deceased's family, accepting doughnuts brought by the family, and various procedural rulings and expressions of frustration.

The court dismissed the application, finding that a fully informed reasonable person would not apprehend bias from any of the isolated incidents or their cumulative effect, noting that the presumption of judicial impartiality had not been displaced.

The accused, charged with second-degree murder, brought a Corbett application to exclude his prior criminal record from evidence should he choose to testify.

The accused intended to argue self-defence and accident.

The court balanced the probative value of the record against the prejudicial effect of propensity reasoning.

The court excluded the accused's youth offences to prevent undue prejudice but permitted the Crown to cross-examine the accused on his adult convictions for assault, theft, drug trafficking, and dangerous driving, with a limiting instruction to the jury.

During jury selection, a sworn juror advised the court that he was an electrician foreman and his absence would prevent apprentices from working, causing hardship.

The court considered whether the juror could be discharged and replaced before the trial commenced.

Applying section 644(1.1) of the Criminal Code, the court found the juror's circumstances constituted 'other reasonable cause' and discharged him, allowing for a replacement to be selected from the panel.

The accused, charged with second-degree murder, brought a motion for a directed verdict of acquittal at the close of the Crown's case, arguing there was no evidence of the requisite intent for murder.

The defence contended that a 1.5-minute gap in the circumstantial evidence meant the jury would have to speculate on intent.

The court dismissed the motion, applying the common sense inference that a sane and sober person intends the natural consequences of their actions.

The court found that firing a shotgun at close range into the victim's lower torso provided a sufficient evidentiary foundation for a properly instructed jury to infer the intent required for murder.

Sentencing for historical sexual offences committed by an adult uncle against two teenage nieces over a ten-year period at repeated family gatherings.

The court applied the governing sentencing principles for sexual violence against children, giving primary weight to denunciation, deterrence, and separation from society under ss. 718 and 718.01 of the Criminal Code, and treated the offender's position of trust, the duration and escalation of abuse, the rape conviction, and the profound lifelong harm to the complainants as major aggravating factors.

Rehabilitation was given little weight, particularly in light of subsequent sexual offending and the offender's lack of remorse or insight.

A global penitentiary sentence of six years was imposed, together with SOIRA, DNA, weapons prohibition, s. 161, and non-communication orders.

In a jury trial involving historical sexual offence allegations against two teenage family members, the Crown brought a cross-count similar fact application at the close of its case.

Applying the framework in Handy, the court held that the similarities in the surrounding circumstances of the alleged assaults, including familial relationship, age, secrecy, opportunistic abuse in private settings, lewd comments, and attempted bribery, supported admission despite some factual differences between the incidents.

The court also found that, although there was an air of reality to a collusion allegation because the complainants had discussed the abuse before going to police, the Crown established on a balance of probabilities that there was no concoction.

The evidence of each complainant was therefore admissible in relation to the other complainant.

In a pre-trial similar fact application in a historical sexual assault prosecution, the Crown sought to admit the accused's prior sexual offence convictions involving teenage stepdaughters.

Applying the framework in Handy, the court held that the prior conduct and the charged conduct shared sufficient circumstantial similarities, including familial relationships, positions of trust, private settings, and exploitation of vulnerable teenage girls.

The court rejected collusion concerns, found the temporal gap did not materially undermine admissibility given the later-occurring convictions, and concluded that limiting instructions would adequately address moral and reasoning prejudice.

The application was granted and the prior conviction evidence was ruled admissible at trial.

The offender was found guilty by a jury of being an accessory after the fact to murder.

She changed the registration colour of a vehicle used by her boyfriend during a murder to avoid police detection.

The court considered her 876 days of pre-trial custody, credited as 1,314 days (3.5 years).

The court imposed a sentence of one day in jail in addition to the pre-trial custody, declining to order probation as the offender had demonstrated rehabilitation while on bail.

During a jury trial for being an accessory after the fact to murder, the accused argued that the defence of duress should be left with the jury.

The alleged duress arose from the accused’s relationship with a violent offender and prior threatening communications.

The court applied the “air of reality” test and held that there was no evidence of an explicit or implicit threat temporally connected to the accused’s conduct or made for the purpose of compelling the offence.

Earlier threats and violent conduct occurring a year prior lacked the necessary nexus to the impugned acts.

The defence of duress was therefore withdrawn from the jury.

Following jury convictions for participation in a criminal organization involved in trafficking firearms from Windsor to Toronto, the court imposed significant custodial sentences.

The organization coordinated the acquisition, transport, and distribution of numerous illegal firearms, some recovered through police surveillance and search warrants.

The accused participated at different levels of responsibility, with one acting as the leader organizing firearm transfers and others assisting as couriers and custodians.

Emphasizing denunciation and deterrence for firearm trafficking and organized criminal activity, the court imposed consecutive sentences pursuant to s. 467.14 of the Criminal Code.

The leader received a total sentence of 12 years less credit for pre‑trial custody, while the courier received 6 years less credit.

The accused sought permission to challenge prospective jurors for cause on the basis of extensive pretrial publicity concerning a major police wiretap and gang investigation, and on the basis of racial bias tied to the accuseds' black Somalian ancestry.

The court held there was a realistic potential for partiality in the jury panel and that a challenge for cause was required to protect the right to a fair trial by an impartial jury.

The court rejected Crown objections that the proposed questions were offence-based, intrusive of juror privacy, or unduly lengthy, while modifying the wording to avoid any appearance of bias against police.

The application was granted and the jury panel could be questioned in accordance with Appendix A.

In this criminal evidentiary ruling, the Crown sought to adduce police recognition evidence identifying two alleged unindicted co-perpetrators in security video footage connected to a firearms transportation investigation.

The court applied the prior acquaintance and better-position requirements governing non-expert recognition evidence and held that the officer's cumulative familiarity, derived from multiple good-quality photographs, videos, and later in-court observation, was sufficient.

The court further found the proposed recognition would assist the jury given the practical difficulty of reviewing the footage unaided.

The application was granted, the video and stills were admitted, and the Crown was prohibited from eliciting extrinsic identifying information in chief.

On a Crown application in a criminal jury proceeding, the court ruled on the admissibility of Somali language translation evidence relating to intercepted private communications forming a critical part of the prosecution case.

Applying the expert-opinion admissibility framework under Mohan, as informed by Abbey, the court held that the proposed witness was qualified by experience to provide opinion evidence translating the Somali portions of the recordings.

The court found that the defence objections concerning training, methodology, dialect knowledge, and objectivity went primarily to weight rather than admissibility.

The probative value of the opinions substantially exceeded any prejudicial effect, and the evidence was admitted with procedural directions governing how the recordings, transcripts, and viva voce translations would be presented to the jury.

The appellant pleaded guilty to production of marijuana and received an absolute discharge.

No mandatory firearms prohibition order was made, but police refused to return his firearms.

The appellant appealed to set aside his guilty plea.

The Court of Appeal found that the Crown erroneously elected to proceed summarily on an exclusively indictable offence, and the trial judge failed to put the appellant to his election for mode of trial.

This failure deprived the trial court of jurisdiction, which could not be cured on appeal.

The Court also clarified that a mandatory firearms prohibition does not take effect without a judicial order.

The appeal was allowed and a new trial ordered.

The appellant appealed his convictions for failing to stop at the scene of an accident involving bodily harm and death.

He argued that he rebutted the presumption of intent to escape civil or criminal liability under s. 252(2) of the Criminal Code because he pulled over after the accident.

The Court of Appeal dismissed the appeal, finding that the trial judge properly concluded the appellant knew his vehicle had been struck, stopped only to assess the damage, and left to avoid liability because he was driving without the requisite licence.

Accused persons charged with murder brought applications to exclude historical text messages obtained by police through a production order directed to a telecommunications provider.

They argued that s. 487.012 of the Criminal Code did not authorize the production of private communications, or alternatively that the provision violated s. 8 of the Charter.

The court held that stored historical text messages constitute “data” within the meaning of the provision and that obtaining them by production order does not amount to interception of private communications under Part VI.

The statutory prerequisites for a production order satisfied constitutional standards for reasonable search and seizure.

The applications to exclude the evidence were dismissed.

Accused persons charged following a large police investigation sought disclosure of source materials underlying wiretap authorizations to support anticipated Garofoli and Dawson applications.

The defence argued that all investigative materials, including pre‑Part VI materials referenced or relied upon by the affiant, were presumptively relevant and disclosable under Stinchcombe principles.

The Attorney General of Ontario argued that disclosure should be limited to materials relevant to the accused’s ability to make full answer and defence at trial unless the defence first demonstrated a reasonable possibility that additional materials would assist in challenging the authorization.

The court acknowledged conceptual difficulties with the Crown’s narrower approach but held that existing authorities required an accused to meet a minimal relevance threshold before obtaining additional disclosure beyond what was before the authorizing judge.

Applying principles of judicial comity and following prior decisions adopting that approach, the court dismissed the disclosure applications.

The applicant, charged with accessory after the fact to murder, was denied bail on the secondary ground.

After a year in pre-trial custody, she brought a second bail application based on a change in circumstances, which the Superior Court dismissed for lack of jurisdiction, holding that only the Court of Appeal could review the decision under s 680 of the Criminal Code.

On review, the Court of Appeal held that the Superior Court and the Court of Appeal have concurrent jurisdiction to hear a second bail application based on a change in circumstances.

The Court found a material change in circumstances due to the significant trial delay and the applicant's changed personal circumstances, and ordered her release on strict conditions.

The appellant appealed convictions and sentence imposed after guilty pleas to two offences under the Securities Act for trading securities while subject to a cease trade order and trading without registration.

He argued that his guilty pleas were not unequivocal, voluntary, or informed and therefore constituted a miscarriage of justice, and alternatively that the custodial sentence imposed was cruel and unusual or unfit.

The court held that the plea inquiry conducted by the trial judge demonstrated that the pleas were unequivocal, voluntary, and informed, and that the appellant’s mistaken personal belief that a conditional discharge might be available did not invalidate the pleas.

The court further held that the 90‑day intermittent custodial sentence and probation order were entitled to deference and were not demonstrably unfit given the need for deterrence and denunciation in securities offences.