Michael Nathan Bernstein

Two brothers were convicted of second degree murder in the shooting death of a gang member.

The Crown's theory was that the brothers acted pursuant to a joint venture to hunt down and kill the victim.

One brother testified he was the shooter and raised defences of self-defence and provocation; the other testified he had no involvement in the killing.

The trial judge's jury instructions improperly conflated the two accused into a single entity by repeatedly using the phrase "John and/or Mato" when describing elements of the offence and defences, failing to distinguish between liability as a perpetrator and liability as an aider or abettor, and assigning the shooter's defences to the non-shooter.

The Court of Appeal allowed the appeal and ordered a new trial, finding the cumulative errors created a significant risk that the jury would approach the liability of the brothers jointly rather than separately.

The appellant appealed his convictions for fraud-related offences involving possession of fraudulent and forged credit cards and identity information.

The central issue was whether evidence obtained from warrantless searches of a USB key and a stolen vehicle should have been excluded under s. 24(2) of the Charter due to breaches of s. 8 rights.

The trial judge admitted the evidence, finding no Charter violation.

On appeal, the court found that the two searches of the USB key were unreasonable and violated s. 8 rights, as they were not truly incidental to the arrest for which the appellant was charged.

However, the court declined to exclude the evidence under s. 24(2), balancing the seriousness of the breach against the minimal impact on the appellant and society's interest in adjudicating the case on its merits.

The appeal from conviction was dismissed.

The appellant also sought leave to appeal his four-year sentence, arguing the trial judge failed to consider rehabilitation.

Leave was granted but the sentence appeal was dismissed as the sentence was not demonstrably unfit.

The appellant was convicted of first degree murder in the shooting death of Keith Brissett.

On appeal, the appellant challenged the trial judge's jury instructions on four grounds: (1) the instruction on the use of a KGB statement containing hearsay evidence of motive; (2) the provision of Vetrovec warnings regarding two disreputable witnesses despite defence objection; (3) the handling of third party suspect evidence regarding Curtis Murray; and (4) the treatment of eyewitness evidence regarding the shooter's skin colour.

The Court of Appeal dismissed all grounds of appeal, finding the trial judge's instructions were legally sound and fair.

The Crown applied for certiorari to set aside a preliminary inquiry judge's decision to discharge two respondents, Justin McGregor and Herve Kalonji, on various drug trafficking and criminal organization charges.

The Superior Court dismissed the application, affirming the narrow scope of jurisdictional review for preliminary inquiry decisions.

The court reiterated that such decisions are reviewable only for jurisdictional errors (e.g., failing to consider all evidence, impermissible weighing), not for errors of law or sufficiency of evidence.

The judge found that the preliminary inquiry judge properly exercised her jurisdiction in concluding there was insufficient evidence for committal, despite some potential errors in her reasoning regarding the evidence.

A 16-year-old appellant was convicted of first-degree murder in the death of his 14-year-old cousin.

The appellant appealed his conviction, arguing that his statements to police were admitted in breach of section 146(2) of the Youth Criminal Justice Act (YCJA) and section 10(b) of the Canadian Charter of Rights and Freedoms.

The trial judge conducted a voir dire and admitted all statements.

The Court of Appeal found that the trial judge made two fatal legal errors: (1) he improperly shifted the burden of proof regarding detention from the Crown to the appellant, and (2) he erred in concluding that section 146(2) protections did not apply because the appellant's detention related to a different offence (obstruction of police) than the ultimate charge (first-degree murder).

The Court of Appeal held that the appellant was psychologically detained and entitled to the protections of section 146(2), which were not provided.

The statements were therefore improperly admitted, and the conviction was set aside with a new trial ordered.

Four appellants appealed their convictions for various offences arising from a large-scale credit card fraud and money laundering scheme operating over several years.

The appellants were convicted of fraud over $5,000, participation in a criminal organization, identity theft, possession of property obtained by crime, and money laundering.

The appellants raised multiple grounds of appeal, including challenges to the single transaction rule, sufficiency of reasons, and the legal test for criminal organization.

The Court of Appeal dismissed most appeals but quashed certain convictions against one appellant that were entered without being charged, and corrected typographical errors in the trial judgment.

The appellant was convicted of second degree murder and aggravated assault following a violent altercation on a restaurant patio.

He appealed on two grounds, claiming the Crown's closing address was improper and that the trial judge's instruction on self-defence was erroneous.

The Crown's closing address did not misstate the legal test for self-defence under s. 34(2) of the Criminal Code, and any inappropriate comments were adequately corrected by the trial judge.

The trial judge's instruction on self-defence was thorough and proper, correctly identifying the three key elements of the defence without improperly adding proportionality as an additional requirement.

The appeal was dismissed.

The appellant was convicted at trial of sexual interference and sexual assault arising from an incident in a laundry room involving a 14-year-old complainant.

The trial judge acquitted the appellant of charges relating to a separate hotel incident but found him guilty of the laundry room charges.

The trial judge's conviction was based primarily on his finding that the appellant's failure to report the complainant's inappropriate sexual comments to her mother, cease contact with her, or tell her such comments were inappropriate demonstrated the falsity of his denial of sexual misconduct.

On appeal, the Court of Appeal found that the trial judge materially misapprehended the evidence by failing to consider the appellant's explanation that he did not report the conversation to the complainant's mother because he feared it would cause a "big commotion" and potentially lead to self-harm by the complainant, given her documented mental health issues.

The Court held this failure to address a plausible explanation constituted a miscarriage of justice and allowed the appeal.

The appellant sought leave to appeal a sentence imposed by the trial judge, arguing that the trial judge erred in rejecting the joint submission on sentence.

The appellant had pleaded guilty to attempted murder of his spouse on the third day of trial.

The Crown and defence had agreed that a sentence of seven years was appropriate.

The trial judge rejected the joint submission as contrary to the public interest and imposed a sentence of 10 years' incarceration instead.

The Court of Appeal upheld the trial judge's decision, finding that the joint submission was so unhinged from the circumstances of the offence and the offender that its acceptance would lead reasonable and informed persons to believe that the proper functioning of the justice system had broken down.

The appellant appealed a sentence of 13 years' incarceration imposed by the trial judge.

The trial judge had imposed a sentence that exceeded the Crown's position by two years without providing the parties an opportunity to make further submissions.

The Court of Appeal found this constituted an error in principle.

However, the court determined that the sentence imposed was entirely fit given the circumstances of the offence and the offender.

The court granted leave to appeal but dismissed the appeal, upholding the 13-year sentence.

The appellant was convicted of first degree murder as the middleman between the deceased's nephew who orchestrated the murder and the hired killer who carried it out.

On appeal, the appellant challenged the jury composition on two grounds: (1) that the trial judge improperly used static triers to decide challenges for cause without a formal application under s. 640(2.1) of the Criminal Code, and (2) that the trial judge erred in discharging an elderly juror with physical disabilities without reasonable cause.

The Court of Appeal dismissed both grounds, holding that the appellant obtained what he wanted in substance regarding jury selection procedures and that the trial judge had reasonable cause to discharge the juror based on his inability to follow proceedings.

The appellant was convicted of second degree murder for the killing of Kerlon Charles.

The Crown's case relied heavily on the testimony of Cleavon Springer, a Crown witness of unsavoury character, who testified that the appellant and six others lured the deceased to an apartment and that the appellant killed the deceased in an execution-style shooting.

The appellant denied being present in the apartment.

The trial judge left second degree murder with the jury despite the defence objection, instructing the jury that the appellant could be guilty as a party to the murder even if they had reasonable doubt that he was the shooter.

After conviction, a juror filed an affidavit claiming that another juror made comments about the appellant's criminal record and gang affiliation, and that the juror had sent her websites about the appellant's criminal history after the verdict.

The trial judge declined to conduct a further inquiry into jury deliberations.

The Court of Appeal upheld the conviction and dismissed the appeal on both grounds.

The appellants, a father and stepmother, were convicted of second-degree murder in the death of their ten-year-old son following prolonged abuse.

On appeal, the father argued the trial judge erred in denying a mid-trial application for severance after late disclosure of photographs.

The stepmother argued the trial judge erred in finding her pre-arrest and post-arrest statements to police were voluntary.

The Court of Appeal dismissed both appeals, finding no injustice in the denial of severance and upholding the trial judge's application of the law on voluntariness.

In a criminal appeal, the court addressed whether the jury charge properly instructed jurors on how to assess a complainant's testimony about events allegedly occurring years earlier in childhood.

The intermediate appellate court had set aside convictions for sexual assault and sexual interference and ordered a new trial.

The court held that, read as a whole, the trial judge's instructions conveyed the correct legal approach to credibility and memory assessment.

The appeal was allowed and the convictions were restored.

The appellant appealed his conviction for second degree murder following his third trial for the offence.

He argued the trial judge erred by failing to conduct an inquiry into juror bias after receiving a note expressing safety concerns, by giving inadequate instructions on eyewitness identification, and by refusing to grant a mistrial over the Crown's closing remarks.

The Court of Appeal dismissed the appeal, finding that the jury's withdrawal of the note negated the need for an inquiry, the identification instructions were adequate, and the trial judge properly exercised his discretion in addressing the Crown's remarks with an ameliorative instruction.

The appellant was convicted of assault causing bodily harm, sexual assault with a weapon, theft under $5,000, and breach of probation.

He appealed his convictions and sentence, arguing the trial judge misunderstood the evidence, improperly took judicial notice regarding the complainant's underwear, and misapplied the rule in Browne v. Dunn.

The Court of Appeal dismissed the appeal, finding the trial judge did not take judicial notice but rather rejected the appellant's speculative suggestion, and properly applied Browne v. Dunn by noting the defence failed to cross-examine the complainant on their theory.

The appellant appealed his convictions and six-year sentence for historical sexual offences.

He argued the trial judge failed to resolve an inconsistency between the complainant's prior statement and her trial testimony regarding whether her mother and brother entered the room during the assaults.

The Court of Appeal dismissed the conviction appeal, finding the inconsistency did not detract from the overall claim of repeated sexual misconduct and the trial judge's reasons were sufficient.

The sentence appeal was also dismissed as the sentence was proportional to the gravity of the offences.

The appellant was convicted of sexual offences against a complainant who was between 13 and 19 years old at the time.

The appellant, who was in a position of trust, appealed the conviction and the sentence of 7 years' imprisonment.

On appeal, he argued the trial judge erred in applying the W.(D.) principles and improperly treated the case as a credibility contest.

The Court of Appeal dismissed the conviction appeal, finding no error in the trial judge's credibility assessment or application of legal principles.

The sentence appeal was also dismissed as the sentence was fit and within the appropriate range.

The appellant was convicted of second degree murder and four counts of aggravated assault after firing a semi-automatic weapon outside a bar, killing an innocent bystander.

He was sentenced to life imprisonment with parole eligibility set at 22 years.

On appeal, he challenged his convictions based on alleged errors in the jury charge regarding witness credibility, oath-helping, post-offence conduct, and eyewitness identification.

He also appealed his sentence, arguing the trial judge failed to adequately consider his circumstances as an Aboriginal offender and the jury's recommendations.

The Court of Appeal dismissed the appeal, finding no errors in the jury instructions and concluding the 22-year parole ineligibility period was fit given the egregious circumstances of the offence and the appellant's background.

The appellant appealed his conviction for first-degree murder, which was largely based on a confession obtained during a 'Mr. Big' undercover operation.

During the retrial, the Crown introduced highly prejudicial bad character evidence regarding a separate, severed murder charge.

The Court of Appeal found that the trial judge's charge to the jury was deficient, particularly regarding motive and confirmatory evidence, and failed to present the defence's position fairly.

The appeal was allowed and a new trial was ordered.