Martin Kerbel

The accused was charged with indecent act in public and mischief to private property for masturbating on a Toronto subway car on July 7, 2012.

Identity was a key issue at trial.

The Crown sought to introduce lay recognition opinion evidence from two police officers who arrested the accused on July 13, 2012, and who testified that they recognized the suspect in a photograph taken by the complainant as the accused.

The court conducted a voir dire to determine the admissibility of this evidence and ruled it inadmissible.

During a murder trial involving multiple accused, an issue arose regarding a potential conflict of interest after counsel for one accused had previously represented a co‑accused on an unrelated impaired driving matter years earlier.

The court considered whether the prior representation created a risk of misuse of confidential information or an appearance of conflict under the principles in MacDonald Estate v. Martin.

Although the risk of prejudice was assessed as minimal and both affected accused were willing to waive any conflict, the court emphasized the unpredictability of a multi‑accused criminal trial and the need to maintain public confidence in the administration of justice.

The judge permitted counsel to continue acting subject to strict conditions, including written waivers, restrictions on cross‑examination of the former client, and prohibitions on accessing or using any prior confidential information.

Three young women pleaded guilty to forcible confinement and assault causing bodily harm after luring their friend from her home, blindfolding her, forcing her into a vehicle, beating her, and abandoning her unconscious at the roadside.

The Crown sought nine months' imprisonment, while defence counsel argued for a conditional sentence.

The court imposed 195 days in custody followed by two years of probation, finding that while the offenders demonstrated strong rehabilitation potential and remorse, the gravity of the offences and egregious aggravating circumstances required actual imprisonment to satisfy denunciation and general deterrence objectives.

The defendant was charged with refusal to comply with an approved roadside screening device (ASD) demand under section 254(5) of the Criminal Code.

The Crown alleged the defendant refused to provide a suitable breath sample after being lawfully demanded to do so.

The defence challenged both the validity of the demand and the Crown's proof of the requisite mens rea (intentional non-compliance).

The court found the ASD demand was lawful and valid based on reasonable grounds to suspect alcohol consumption.

However, the court acquitted the defendant on the basis that the Crown failed to prove beyond a reasonable doubt that the defendant's failure to produce a suitable sample was intentional, as opposed to a genuine inability to comply despite sincere efforts.

The appellant sought leave to appeal a Summary Conviction Appeal Court decision dismissing his appeal.

The appellant raised a question of law regarding a section 715.1 statement and challenged the trial judge's credibility assessments.

The Court of Appeal refused leave to appeal, finding the legal question had no merit and the credibility issues did not raise questions of law with significance beyond the facts of the case.

The appellant appealed his convictions for sexual assault and sexual touching, as well as his 15-month custodial sentence.

He argued the trial judge erred in finding a sexual purpose for a massage, drawing inferences about access to a residence, rejecting his evidence, and refusing to admit counselling records.

The Court of Appeal dismissed the appeal, finding no errors in the trial judge's comprehensive reasons and concluding the sentence was at the low end of the range.

The appellant appealed her conviction for the second-degree murder of her partner's two-year-old child.

She argued the trial judge erred in instructing the jury on expert pathological evidence regarding blunt force trauma and on her post-offence conduct.

The Court of Appeal dismissed the appeal, finding the trial judge fairly and accurately dealt with the expert evidence and properly instructed the jury that if they accepted the appellant's innocent explanation for her post-offence lies, that conduct could not be used as circumstantial evidence of guilt.

The Crown appealed a summary conviction appeal judge's decision that excluded expert evidence from a practitioner of traditional Chinese medicine.

The Court of Appeal allowed the appeal, finding that the evidence had been admitted on consent at trial and the expert was properly qualified.

The conviction was restored.

The appellant, a priest, appealed his five-year sentence for the repeated, long-term sexual abuse of two young altar boys.

The Court of Appeal dismissed the appeal, holding that a significant penitentiary term was required given the circumstances and that the sentence imposed by the trial judge was not manifestly excessive.

The appellant appealed his conviction for first-degree murder, arguing the trial judge erred by refusing to admit an out-of-court statement he made to his father and by failing to give a 'no probative value' instruction regarding post-offence conduct.

The Court of Appeal dismissed the appeal, finding the hearsay statement did not meet the necessity requirement as the appellant was available to testify, and the jury instruction on post-offence conduct was fair and did not cause significant prejudice.

The appellant appealed his conviction for sexual assault, arguing the trial judge erred in admitting similar fact evidence and in assessing credibility.

The Court of Appeal dismissed the appeal, finding the similar fact evidence was highly probative on the issue of consent and properly used to corroborate the complainant's account.

The Court also held the trial judge correctly applied the W.(D.) framework, assessing all the evidence rather than merely choosing between the complainant's and the appellant's versions.

The appellant sought leave to appeal his conviction, arguing the trial judge erred in considering matters relevant to his credibility that did not directly relate to the amount of alcohol consumed.

The Court of Appeal refused leave, holding that evidence may be relevant to credibility even if it does not directly and expressly relate to alcohol consumption.

The Crown brought a motion to introduce evidence of the accused's discreditable conduct in a trial for sexual assault and unlawful confinement.

The proposed evidence involved prior incidents with the complainant, and a subsequent incident with a second complainant.

Applying the Handy framework, the court admitted the prior evidence involving the complainant, finding it highly probative of consent and animus, but excluded specific inflammatory details.

The court excluded the evidence involving the second complainant, concluding that despite its striking similarities, its highly inflammatory nature and prejudicial effect outweighed its probative value.

The appellant was convicted of first-degree murder in the shaking death of his infant stepdaughter.

At trial, the Crown introduced similar fact evidence of a prior shaking incident to rebut the appellant's defence of innocent intention.

The appellant appealed, arguing the verdict was unreasonable and the jury was improperly instructed on the similar fact evidence.

The Court of Appeal held that while the verdict was not unreasonable, the trial judge failed to adequately relate the similar fact evidence to the legal issue of intent under s. 229(a)(ii) of the Criminal Code.

The appeal was allowed and a new trial ordered.

The Crown appealed a Court of Appeal decision ordering a new trial based on the non-disclosure of a victim impact statement and its admission as fresh evidence.

The Supreme Court of Canada allowed the appeal, finding that defence counsel failed to bring the non-disclosure to the trial judge's attention at the earliest opportunity, making a tactical decision instead.

Furthermore, the proposed fresh evidence failed the due diligence criterion of the Palmer test.

The Court of Appeal's judgment was set aside and the matter remitted.