Michael A. Crystal

The appellant, Jesse David Harvey, appealed his sentence of 3 years' incarceration for numerous breaches of probation orders and assault, having abandoned his conviction appeal.

The primary ground of appeal was that the sentencing judge erred by referring to the Crown's consideration of a dangerous offender application.

The Court of Appeal dismissed the appeal, finding the sentence was fit and that the sentencing judge's brief reference to a dangerous offender application, when contextualized by the appellant's repeated failure to abide by court orders in a domestic violence situation, did not constitute an error or transform the sentencing into an informal dangerous offender hearing.

The appellant appealed his sentence on two grounds: the sentencing judge's alleged failure to consider Gladue factors and an error in calculating Duncan credits.

The Court of Appeal found that the Gladue factors were expressly waived by the appellant, and even if considered, would not have impacted the sentence given his lengthy criminal record and the serious nature of the charges.

The court also found no basis to interfere with the trial judge's discretionary calculation of Duncan credits for harsh conditions of incarceration.

The appeal was dismissed.

The appellant, D.M., appealed his dangerous offender designation and indeterminate sentence, which followed convictions for sexual assault and child pornography.

The Crown conceded that the sentencing judge erred by not explicitly considering the appellant's future treatment prospects at the designation stage, as required by R. v. Boutilier.

However, the Court of Appeal found this error to be harmless, concluding that the overwhelming evidence, including consistent psychiatric opinions on the appellant's high risk of sexual recidivism and his lack of credibility regarding amenability to treatment, compelled the dangerous offender designation and indeterminate sentence.

An application to admit fresh evidence was also dismissed as it would not have altered the outcome.

The appeal was dismissed.

The applicant sought bail pending appeal after being convicted of sexual assault, uttering death threats, and breaching a release order, resulting in a three-and-a-half-year imprisonment sentence.

The application for bail pending appeal was dismissed.

The court found that while the appeal was not frivolous and the applicant would likely surrender, detention was necessary in the public interest due to an extensive criminal history, including prior sexual assault and harassment convictions, and a significant track record of breaching court orders, which outweighed the proposed surety's assurances.

The appellant, D.B., appealed his convictions for two counts of sexual touching of his stepdaughter, A.G., contrary to s. 151 of the Criminal Code.

The appellant argued the trial judge misapprehended important evidence, failed to reconcile material inconsistencies, unevenly scrutinized evidence, and provided inadequate reasons.

The Court of Appeal found no reversible error, concluding that the trial judge's assessment of the evidence, including the victim's letter, was reasonable and did not unfairly scrutinize the evidence.

The appeal was dismissed.

The appellant sought leave to appeal a 6-year sentence for aggravated assault, which included credit for pre-sentence custody and harsh conditions of confinement.

The conviction stemmed from a violent knife attack on his former partner's husband.

The sentencing judge emphasized general deterrence and denunciation, noting the victim's severe injuries, the appellant's use of two knives, his related criminal record, and the attack occurring partly in front of his daughter.

The Court of Appeal found no error in the sentencing judge's assessment of the appellant's limited insight into the gravity of the offence, which restricted the weight given to his rehabilitative potential.

The application for leave to appeal was granted, but the appeal itself was dismissed, upholding the original sentence.

The appellant appealed his conviction for sexual assault, arguing that the trial judge erred in her credibility assessment by suggesting his evidence was tailored to the complainant's testimony.

The Court of Appeal found that the trial judge committed a legal error by impugning the appellant's credibility on this basis, as it undermined his constitutional right to be present at trial and make full answer and defence.

The court determined this error played a significant role in the trial judge's rejection of the appellant's evidence.

The appeal was allowed, and a new trial was ordered.

The applicant, serving a life sentence for first-degree murder and attempted murder with no parole eligibility for 25 years, applied under s. 745.6 of the Criminal Code for a reduction in his parole ineligibility period.

The screening judge considered the applicant's institutional record, letters of support, and the nature of the gang-related offences.

The court dismissed the application, finding that the applicant's lack of remorse and failure to take accountability for the specific violent acts meant there was no reasonable prospect a unanimous jury would reduce his parole ineligibility.

The Crown appealed a Court of Appeal decision that had set aside a jury's convictions of the respondent for indecent assault and gross indecency on the ground that the verdict was unreasonable.

The sole issue was whether inconsistencies in the complainant's testimony — as between his police statement, preliminary inquiry evidence, and trial evidence — were so significant that a conviction based on his evidence was unreasonable as a matter of law.

The majority held that the inconsistencies, while troubling, did not render the jury's verdict unreasonable, as the complainant offered an explanation (that counselling had improved his memory) and the jury was entitled to accept it after thorough cross-examination and a comprehensive, unchallenged jury charge.

The majority further held that the Crown was not required to adduce further evidence or expert evidence regarding the role of counselling in refining memory.

The convictions were restored; Brown and Rowe JJ. dissented, substantially for the reasons of Justice White below.

The accused was convicted of operating a motor vehicle while impaired by drugs (fentanyl and xanax) causing the deaths of two people, and criminal negligence causing death.

The accused crossed the center line at high speed and struck the victims' vehicle head-on.

The court weighed the gravity of the offence and the need for general deterrence against the accused's significant mitigating factors, including his youth, lack of criminal record, severe childhood trauma that led to his opioid addiction, and his extensive rehabilitation efforts.

The court sentenced the accused to 5 years' imprisonment and imposed a 7-year driving prohibition.

The accused was charged with impaired care or control of a motor vehicle.

During a voir dire, the defence sought to admit hearsay statements made by an unknown female witness to a police officer.

The female stated that she did not know the accused personally and that they intended to go to the vehicle to smoke marijuana.

The Crown opposed admission on the grounds that the statements did not meet the threshold reliability requirements for a principled exception to the hearsay rule.

The court found that while procedural reliability was lacking, substantive reliability was established through circumstantial guarantees of trustworthiness, including the female's independent demeanor, corroborating evidence of marijuana in the vehicle, and the nonchalant public attitude toward marijuana use at the time.

The statements were admitted.

The appellant appealed from the dismissal of his application for damages arising from his exclusion from WeChat groups related to his occupation as a real estate agent.

He also sought a declaration that the WeChat groups belonged to the respondent Homelife.

The Court of Appeal dismissed the appeal, finding that an application was not the appropriate proceeding for advancing a damages claim of this type, and that there was no proper evidentiary foundation for either an intentional interference with economic relations claim, a civil conspiracy claim, or the declaration sought.

The appellants appealed an order from the motion judge dismissing a certification motion for class proceedings.

The Court of Appeal found that the motion judge's order was clear and unequivocal in dismissing only the certification motion, not the underlying claims.

Under section 30 of the Class Proceedings Act, an appeal from an order refusing to certify a proceeding lies to the Divisional Court, not the Court of Appeal.

Accordingly, the appeal to the Court of Appeal was quashed without prejudice to the appellants proceeding with the appeal in the Divisional Court.

Ricci Abram, convicted of first-degree murder in 2005, applied for a "faint hope" hearing under s. 745.61 of the Criminal Code to reduce his parole ineligibility period.

The application required judicial screening for merit.

The court, applying the "reasonable prospect of success" standard due to Charter considerations (R. v. Dell), found that the applicant had demonstrated dramatic rehabilitative efforts, strong institutional support, and a deep connection to indigenous traditions.

Despite the brutal nature of the original offence and victim impact, the court balanced these factors with the applicant's significant personal growth and the relevance of Gladue principles.

The application for a jury hearing was granted.

The applicant, convicted of first-degree murder, sought a reduction in his parole ineligibility period under the "faint hope" clause (s. 745.6 of the Criminal Code).

The screening judge applied the less stringent "reasonable prospect of success" test from the 1997 amendments, as the murder occurred in 2003.

Despite some positive institutional conduct, the applicant's abysmal overall conduct, lack of genuine remorse and accountability, and persistent moderate risk for violent recidivism led the court to conclude he failed to meet the test.

The application was dismissed, but a further application was permitted after six years.

The appellants were convicted of three counts of possessing narcotics for the purpose of trafficking and possession of proceeds of crime following a warrantless search of their apartment and a subsequent search pursuant to a warrant.

The trial judge found the warrantless search unconstitutional but admitted the evidence under section 24(2) of the Charter.

The appellants appealed, arguing the trial judge erred in his section 24(2) analysis by failing to consider the searching officer's misleading testimony and by improperly emphasizing objective grounds while diminishing the lack of subjective grounds.

The Court of Appeal allowed the appeal, finding the trial judge committed material errors in his Charter analysis, excluded the evidence, and substituted verdicts of acquittal on all charges.

The appellant was acquitted of conspiracy to commit human smuggling but convicted of two counts of manslaughter by criminal negligence arising from an incident where he transported three Indian nationals on a Sea-Doo across the St. Lawrence River without life jackets, resulting in the capsizing of the vessel and the deaths of two passengers.

The Federal Crown appealed the acquittal on the conspiracy charge, arguing the trial judge erred in excluding the accused's statement and the surviving passenger's hearsay statements.

The accused appealed his convictions, arguing the trial judge misstated the mens rea test and failed to consider all relevant circumstances.

The Court of Appeal dismissed both appeals.

The appellant was charged with child luring after sending sexually explicit online communications to an undercover police officer posing as a 14-year-old girl.

The police used screen capture software to record the communications without prior judicial authorization.

The Supreme Court unanimously dismissed the appeal, though for different reasons: the majority (Brown J., Abella and Gascon JJ. concurring) held that the appellant had no objectively reasonable expectation of privacy because he communicated with someone he believed to be a child who was a stranger; Karakatsanis J. (Wagner C.J. concurring) held there was no search or seizure because the police simply received messages directed to them; Moldaver J. concurred in the result; and Martin J. dissented in part, finding a s. 8 breach but agreeing that exclusion of the evidence under s. 24(2) was not warranted.

The appellant was convicted after a judge-alone trial of possession of cocaine and crack cocaine for the purpose of trafficking, possession of proceeds of crime, and breach of probation.

He appealed his convictions on grounds of Charter delay under s. 11(b), arguing the trial judge erred in applying the law of reasonable doubt, and contending his conviction for drug possession was inconsistent with his acquittal on firearm possession charges.

The Crown cross-appealed the sentence of two years less a day plus three years probation.

The Court of Appeal dismissed both the conviction appeal and the Crown's sentence appeal, finding the delay was reasonable in the transitional post-Jordan context, the convictions were supported by evidence, and the sentence, though lenient, was not demonstrably unfit given the appellant's secondary role in the drug enterprise and rehabilitative efforts.

A police officer was acquitted by jury of sexual assault.

The Court of Appeal set aside the acquittal and ordered a new trial, finding the trial judge erred by refusing to instruct the jury on s. 273.1(2)(c) of the Criminal Code, which provides that no consent is obtained where an accused, by abusing a position of trust, power, or authority, induces a complainant to engage in sexual activity.

The Supreme Court dismissed the appeal, holding that an instruction under s. 273.1(2)(c) was warranted on the facts, as it was open to the jury to conclude the accused used his position of trust and the complainant's intoxicated and vulnerable state to secure her apparent consent to sexual activity.