Michael Nathan Bernstein

The applicants, charged with bookmaking and criminal organization offences, brought a pre-trial application challenging the constitutional validity of the gaming and criminal organization provisions of the Criminal Code and related regulations.

They argued that the gaming provisions were ultra vires Parliament's criminal law power, that the regulation deeming gaming offences as 'serious offences' violated section 7 of the Charter due to overbreadth and gross disproportionality, and that the bookmaking prohibition violated freedom of expression and association under section 2 of the Charter.

The court dismissed the application, finding the provisions were a valid exercise of the criminal law power, did not violate the Charter, and in any event, would be saved under section 1.

The appellant appealed his convictions for sexual interference and sexual assault, arguing the trial judge erred in instructing the jury on how to assess the credibility of the complainant, who was 12 at the time of the events and 17 at trial.

The trial judge instructed the jury that they were considering 'the memory of a 12 year old'.

The majority of the Court of Appeal held this instruction was an error in law as it could have confused the jury into assessing the complainant's credibility on non-peripheral matters as if she were 12 years old.

The appeal was allowed and a new trial ordered.

The applicant sought an extension of time to seek a panel review of a 2008 order by a single judge of the Court of Appeal, which had denied his application for an extension of time to appeal his 2002 second-degree murder conviction and sentence.

The Court of Appeal dismissed the application, finding that the applicant failed to provide a reasonable explanation for the seven-year delay in seeking the review and failed to demonstrate any basis to interfere with the single judge's discretionary decision.

The appellant was convicted of aggravated assault, possession of a weapon for a dangerous purpose, and assault following a brawl in a restaurant where he brandished a knife and a patron was stabbed.

The appellant testified he brandished the knife in self-defence and the stabbing was accidental.

The trial judge refused to leave self-defence to the jury, finding it incompatible with accident, and directed the jury that the first two elements of the weapons charge were proven.

The Court of Appeal allowed the appeal and ordered a new trial, holding that the trial judge usurped the jury's fact-finding function, erred in finding self-defence and accident incompatible, and improperly directed a verdict on essential elements.

The appellant was convicted of manslaughter for his participation in a robbery where a co-assailant shot and killed the victim.

The trial judge sentenced him to eight years' imprisonment, treating the use of a firearm as an aggravating factor despite the mandatory minimum under s. 236(a) of the Criminal Code.

On appeal, the Court of Appeal admitted fresh evidence of the appellant's rehabilitation and held that his failure to cooperate with police was not an aggravating factor.

The court reduced the sentence to six years' imprisonment, balancing the aggravating circumstances of the robbery with the appellant's strong mitigating factors and rehabilitative efforts.

The appellant appealed his convictions on the sole issue of whether the 2013 self-defence provisions of the Criminal Code have retrospective application.

The Court of Appeal dismissed the appeal, noting that it had previously determined in R. v. Bengy that the provisions do not have retrospective effect.

The appellant appealed his conviction and sentence for discharging a firearm with intent to endanger life.

The Court of Appeal dismissed the conviction appeal, finding no merit to the claims of ineffective assistance of counsel or unreasonable verdict.

However, the sentence appeal was allowed.

The Court applied a 1.5:1 credit for pre-sentence custody and reduced the sentence to the mandatory minimum of five years, emphasizing the need for restraint when sentencing a youthful first offender with excellent prospects for rehabilitation.

The appellant was convicted of second degree murder and possession of a weapon dangerous to the public peace following the stabbing death of his girlfriend.

At trial, the Crown relied heavily on an eyewitness who was highly intoxicated at the time of the offence.

The appellant was also found in a near-comatose state of alcohol intoxication at the scene.

On appeal, the appellant argued the trial judge failed to adequately instruct the jury on how the eyewitness's reliability and the appellant's extreme intoxication related to reasonable doubt and the requisite intent for murder.

The appellant also argued the verdict was unreasonable.

The Court of Appeal dismissed the appeal, finding the jury instructions were adequate and the verdict was one a properly instructed jury could reasonably render.

The appellant was convicted of first degree murder, second degree murder, attempted murder, and aggravated assault following a series of altercations that began at a pub and ended with two men fatally stabbed.

On appeal, the appellant argued the first degree murder verdict was unreasonable, the jury was improperly instructed on after-the-fact conduct and self-defence, a Crown expert was biased, and he should benefit from retrospective application of new self-defence laws.

The Court of Appeal dismissed the appeal, finding ample evidence of planning and deliberation, no reversible error in the jury instructions, and that the proposed fresh expert evidence did not meet the test for admission.

The appellant was convicted of manslaughter as a party under s. 21(2) of the Criminal Code after his co-accused stabbed the victim during a group fight.

On appeal, the appellant argued the trial judge erred in her instructions to the jury on self-defence, consent, and the use of a prior inconsistent statement.

The Court of Appeal allowed the appeal and ordered a new trial, finding that the trial judge's instruction on consent was confusing and may have improperly led the jury to consider the stab wounds when determining if the victim consented to the initial fight.

The appellant was convicted of second-degree murder following a fatal stabbing during a parking lot altercation.

On appeal, he argued that he should benefit retrospectively from the new self-defence provisions in the Criminal Code, and that the trial judge erred in refusing to leave the defence of provocation with the jury and in her W.(D.) instructions regarding self-defence and exculpatory statements.

The Court of Appeal dismissed the appeal, holding that the new self-defence provisions are substantive and apply prospectively only.

The court also found no error in the trial judge's assessment that provocation lacked an air of reality, nor in her jury instructions.

In a manslaughter appeal, the Crown challenged an order for a new trial based on alleged misdirection to the jury concerning post-offence photographs and characterization of a school conversation as a confession.

The Court held the photographs were admissible on identity because appearance at the time of the offence was in dispute and any prejudice was manageable through limiting instructions.

Reading the charge as a whole, the Court found no realistic risk that jurors would reason impermissibly from broad eyewitness descriptions.

The Court also held that referring to confession in recounting the Crown's submissions was not a toxic instruction where the jury was repeatedly cautioned to assess the actual words and context.

The appeal was allowed, the conviction restored, and sentencing issues were remitted.

The appellant appealed his conviction for assault causing bodily harm against his nephew.

The appellant admitted to kicking the complainant in the head and body after the complainant fell to the ground during a physical altercation.

The trial judge rejected the appellant's claim of self-defence, finding the kicks were administered out of anger and a desire to inflict punishment.

The Court of Appeal dismissed the appeal, holding that the trial judge's findings were supported by the evidence, he did not misapprehend the law of self-defence, and his reasons were adequate.

The appellant was convicted of manslaughter following a fatal barroom altercation.

He appealed on the basis that the trial judge erred in her jury instructions regarding self-defence under sections 34(2) and 35 of the Criminal Code.

The Court of Appeal found that the trial judge erred by instructing the jury to assess the lawfulness of the victim's assault from the accused's perspective rather than the victim's, and by failing to leave section 35 with the jury.

The appeal was allowed, the conviction set aside, and a new trial ordered.

The appellant was convicted of manslaughter as a party to a robbery during which the victim was shot and killed.

At trial, the Crown relied heavily on the evidence of the appellant's teacher, who testified the appellant confessed to being present but not the shooter.

The trial judge admitted two photographs of the appellant taken at the time of his arrest to show his appearance at the time of the offence, as his appearance had changed significantly by trial.

The Court of Appeal held that while the photographs were admissible, the trial judge's jury instruction on their use was confusing and effectively invited the jury to treat an in-court, single photo lineup as circumstantial evidence of identity.

The appeal was allowed and a new trial ordered.

The appellant appealed his convictions and sentences for threatening death, assault, sexual assault, and breach of probation against his former intimate partner.

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

However, the sentence appeal was allowed because the trial judge imposed a sentence substantially higher than the Crown's suggested range without providing reasons or an opportunity for submissions.

The global sentence was reduced from 6 years to 3 years and 8.5 months.

The appellant pleaded guilty to break and enter, robbery, forcible confinement, and assault resist arrest following a home invasion involving an 86-year-old victim.

He was sentenced to eight years in addition to nine months of pre-trial custody.

On appeal, he argued the sentence was unfit because it exceeded the Crown's requested eight-year range.

The Court of Appeal dismissed the appeal, finding the trial judge properly considered a mental health and risk assessment report indicating a high risk to re-offend, and that the sentence fell within the established range for home invasions.

The appellant brought a motion to reinstate his appeal against conviction and sentence for sexual offences, which he had previously abandoned in 2003.

A prior motion to reopen the appeal was dismissed in 2005 after the appellant failed to file a factum.

In the current motion, the appellant argued the appeal should be reopened because the Crown fraudulently concealed relevant case law.

The Court of Appeal dismissed the motion, finding no merit to the allegations of concealment and no error by the trial judge that would justify granting the relief.

The appellant appealed his conviction for conspiracy to defraud the public, arguing that the victims were corporations operating 'big box' retail stores and therefore did not constitute the 'public' under s. 380 of the Criminal Code.

The Court of Appeal dismissed the appeal, holding that the word 'public' can describe a segment of the community targeted by a fraud, and that corporations are not excluded from the concept of the public.

The court found the indictment properly charged a conspiracy to defraud the public and the appellant suffered no prejudice.

The appellant appealed a murder conviction arising from a circumstantial case centred on bloody palm prints found on a garage wall near the deceased's body.

He argued that an extract from his post-arrest police statement should have been admitted as a prior consistent statement to rebut alleged recent fabrication or, alternatively, under the spontaneous reaction exception recognized in Edgar.

The court held that the Crown's cross-examination alleged only that the appellant was lying because he was the perpetrator, not that some later event created a motive to fabricate, so the traditional exception did not apply.

The statement was also inconsistent with the appellant's trial account on the critical timing of the light switch and there was no evidentiary foundation to establish spontaneity or that it was made when first confronted with the accusation.

The court also rejected the complaint about instructions concerning an alternative suspect, finding no evidence connected that witness to the killing.