Michael Perlin

The appellant, Trevor Basso, appealed his conviction for sexual assault with a minor and his sentence.

He also sought to admit fresh evidence regarding his intellectual disability and ineffective assistance of counsel.

The Court of Appeal dismissed the fresh evidence motion, finding it would not have affected the trial outcome.

The conviction appeal was dismissed, as the trial judge's findings on the appellant's recklessness regarding the complainant's age were consistent with the mens rea requirements clarified in R. v. Carbone.

While the 12-month sentence was affirmed as fit, the court exercised its discretion to consider the constitutionality of the mandatory minimum sentence for sexual assault under s. 271(a) of the Criminal Code.

Drawing parallels with R. v. B.J.T., the court declared the mandatory minimum unconstitutional under s. 12 of the Charter due to gross disproportionality in hypothetical scenarios.

The remnant of the appellant's custodial sentence was permanently stayed.

The appellant appealed a 22-month jail sentence for accessing and possessing child pornography, seeking a conditional sentence and arguing errors in considering an unconstitutional mandatory minimum and failing to weigh health problems.

The Crown conceded the unconstitutionality of the minimum but argued the sentence was fit.

The Court of Appeal upheld the 22-month sentence, finding it appropriate given the nature and volume of the material, and that health issues were considered.

However, on consent, the court allowed the appeal to substitute a 20-year Sex Offender Information Registration Act (SOIRA) registration for the lifetime order, applying the Supreme Court of Canada's decision in R. v. Ndhlovu.

The appellant was convicted of second-degree murder and sentenced to life imprisonment with 15 years parole ineligibility.

He appealed his conviction, arguing errors in admitting his utterance to police, the Crown's improper firearm demonstration during closing arguments, and confusing jury instructions on motive.

He also appealed his sentence as unfit.

The Court of Appeal dismissed the appeal from conviction, finding no error in the admission of the utterance (appellant was not detained), no unfairness regarding the firearm demonstration, and no confusion in motive instructions.

The Court also dismissed the appeal from sentence, finding it fit and within the appropriate range, considering aggravating factors such as intimate partner violence and breach of trust.

The Crown appealed from the Court of Appeal for Ontario's finding that s. 33.1 of the Criminal Code, which bars accused persons from raising a defence of self-induced extreme intoxication akin to automatism, violates ss. 7 and 11(d) of the Charter and is not saved by s. 1.

The Court dismissed the appeals on the basis of the companion decision in R. v. Brown, 2022 SCC 18, which held s. 33.1 unconstitutional and of no force or effect.

The Court further held that ordinary horizontal stare decisis principles govern prior s. 52(1) declarations of unconstitutionality issued by superior courts within the same province, applying the Spruce Mills criteria, and that a trial judge is not strictly bound to follow such a declaration unless it is distinguishable or one of the recognized exceptions to stare decisis applies.

The Court also quashed the respondent Chan's application for leave to cross-appeal for want of jurisdiction under s. 691 of the Criminal Code, as no statutory route exists to challenge a new trial order where a conviction was set aside.

The Crown brought an application on behalf of 54 respondents seeking an order to extend the time to pay the victim surcharge by 99 years.

This application was a response to the Supreme Court of Canada's decision in R. v. Boudreault, which struck down the mandatory victim surcharge as unconstitutional.

The court, adopting the reasoning from a similar prior decision, found it had jurisdiction under section 734.4 of the Criminal Code to vary the payment time and that it was in the interests of justice to grant the extension, thereby alleviating the impact of the unconstitutional penalties.

The court also addressed the issues of proceeding with respondents in absentia and the dissemination of the order's outcome to affected individuals through community organizations.

The Crown brought an ex parte application on behalf of 721 respondents to vary the time to pay the victim fine surcharge (VFS) by 99 years.

The VFS had previously been struck down as unconstitutional by the Supreme Court of Canada in R. v. Boudreault, leaving thousands of offenders subject to an unconstitutional penalty.

The Superior Court of Justice found it had jurisdiction under section 734.3 of the Criminal Code to grant the extension and that it was in the interests of justice to do so, effectively ensuring no enforcement measures would be taken against these offenders in their lifetimes.

The appellant, Jeffrey Dodman, sought leave to appeal his 12-month custodial sentence for robbery and use of an imitation firearm.

The appeal focused on the calculation of "Downes credits" for pre-trial bail conditions, the appropriateness of a conditional sentence, the impact of post-sentencing events (including COVID-19 risks), and the constitutionality of the mandatory minimum sentence for imitation firearm use.

The Court of Appeal dismissed the appeal, finding the sentencing judge's calculation of Downes credits was a reasonable exercise of discretion, a conditional sentence was inappropriate given the seriousness of the crime, and post-sentencing events did not warrant interference.

The court also declined to rule on the constitutionality of the mandatory minimum or delay the decision pending legislative changes, as the imposed sentence was deemed fit regardless.

The appellant Crown appealed a Court of Appeal decision ordering a new trial for the respondent, who had been convicted of first degree murder after jury selection proceeded without peremptory challenges on the day Bill C-75 came into force.

The majority held that the statutory amendments abolishing peremptory challenges are constitutional because they do not infringe ss. 11(d) or 11(f) of the Charter, as the accused has no right to any particular jury selection procedure and adequate safeguards remain in place through challenges for cause, jury instructions, and the enhanced stand-aside power.

The majority further held that abolition of peremptory challenges is purely procedural and therefore applies retrospectively to all jury selections commencing on or after September 19, 2019.

Abella J. dissented in part, concluding that while the amendments are constitutional, they should apply only prospectively because they affect the accused's substantive right to meaningfully participate in jury selection.

Côté J. dissented in full, finding the abolition of peremptory challenges unconstitutional under s. 11(f) of the Charter as it substantially diminishes the core jury characteristics of impartiality, representativeness, and competence.

The appellant was convicted of sexual assault, sexual interference, and invitation to sexual touching.

He appealed his convictions based on an alleged error in the jury instruction and a request to admit fresh evidence for a partial alibi.

He also appealed his sentence, specifically lifetime prohibition orders under s. 161(1)(a) and (b) of the Criminal Code, arguing their retroactive application violated s. 11(i) of the Charter.

The Court of Appeal dismissed the conviction appeal and the fresh evidence application, finding no reversible error in the jury charge and that the fresh evidence lacked due diligence and cogency.

However, the court allowed the sentence appeal, holding that the retroactive application of s. 161(1)(a) and (b) to offences committed before their 1993 enactment was not justified under s. 1 of the Charter, as there was no compelling temporal justification for their retrospective application in 2005.

The appellant was convicted of multiple offences relating to a residential break-in and theft of firearms.

On appeal, he argued the trial judge erred in denying him standing to challenge a warrantless search of his girlfriend's vehicle, unfairly dismissed his s. 8 Charter challenges and Garofoli application, and erred in finding reasonable grounds for search warrants.

The Court of Appeal dismissed the appeal, finding that while the trial judge acted unfairly in summarily dismissing the Garofoli application and standing arguments without hearing submissions, no miscarriage of justice occurred because the applications had no reasonable prospect of success.

The appellants, in separate incidents, committed violent acts while in states of drug-induced psychosis and automatism.

At trial, they were precluded from raising the defence of non-mental disorder automatism due to section 33.1 of the Criminal Code, which removes the defence for violence-based offences where automatism is self-induced by voluntary intoxication.

The Court of Appeal held that section 33.1 violates sections 7 and 11(d) of the Charter by permitting convictions without proof of voluntariness or the requisite fault element, and by substituting voluntary intoxication for the essential elements of the offence.

The Court further held that these violations could not be saved under section 1 of the Charter.

Section 33.1 was declared to be of no force or effect.

The appeals were allowed, with a new trial ordered for one appellant and acquittals entered for the other on the violence-based charges.

This is a criminal appeal concerning convictions for possession of child pornography, making child pornography, and sexual assault.

The appellant argued that police breached his Charter rights (ss. 8 and 10(b)) through delayed access to counsel, an unlawful strip search, an unauthorized bedpan vigil, unlawful detention, a warrantless apartment entry, and invalid search warrants for electronic devices.

The Court of Appeal found multiple serious Charter breaches, including a reckless disregard for fundamental constitutional rights and significant impact on privacy interests (body, home, devices).

The court re-evaluated the s. 24(2) Grant analysis, concluding that the evidence obtained through these breaches should have been excluded.

The trial judge's attempt to sever the breaches and stay lesser charges was deemed an error in principle, as the police conduct tainted all evidence.

The appeal was allowed, convictions set aside, and acquittals entered.

The appellant appealed his designation as a dangerous offender and the imposition of an indeterminate sentence.

He argued the trial judge failed to properly assess future risk, denied him procedural fairness, and erroneously applied a presumption in favour of an indeterminate sentence.

The Court of Appeal dismissed the appeal, finding the trial judge properly relied on psychiatric evidence indicating the appellant posed an unacceptable future risk without medication, which he refused to take.

The court concluded the indeterminate sentence was reasonable and necessary to protect the public.

The appellant was convicted of child pornography offences and offences associated with sexual touching of his daughter.

Three series of photographs depicting the victim were found on the Internet.

The appellant admitted to taking innocent photographs but denied taking the pornographic ones and denied distributing any photographs.

He suggested the victim's mother and her new boyfriend had opportunity to commit the offences.

The trial judge rejected the appellant's evidence and found the circumstances consistent with the appellant's guilt with no reasonable alternative inferences.

The appeal was dismissed.

Appellants were convicted of unlawful confinement after making a lawful citizen's arrest of individuals caught stealing from their property.

The appellants bound the thieves with zip ties and, instead of immediately calling police, called the thieves' parents after the thieves allegedly requested this and offered compensation.

The appellants were acquitted of pointing a firearm, extortion, and assault, but convicted of unlawful confinement and received suspended sentences.

On appeal, the court found that the trial judge erred in instructing the jury on the elements of unlawful confinement, particularly regarding the requirement that the Crown prove lack of consent beyond a reasonable doubt.

The Crown's closing submissions incorrectly suggested guilt was automatic upon failure to deliver the accused to police forthwith, without regard to consent.

The trial judge failed to correct these errors and inadequately instructed the jury on consent as an essential element.

The Crown appealed the conviction and sentence imposed by the trial judge.

The Court of Appeal found that the trial judge imposed a demonstrably unfit sentence by failing to recognize that denunciation and general deterrence are paramount sentencing objectives for the offence and by concluding that the minimum sentence required under s. 85(3)(a) of the Criminal Code was grossly disproportionate.

The trial judge's declaration that s. 85(3)(a) was invalid was set aside.

The Court of Appeal substituted a sentence of 18 months' imprisonment, reduced by pre-trial bail conditions and pre-sentence custody credits, resulting in an effective sentence of 13 months less 38 days.

The appellant appealed his conviction on a single charge of sexual interference following a judge-alone trial.

The central issue on appeal was whether the trial judge improperly curtailed defence counsel's cross-examination of the complainant's mother regarding cash payments for child support.

The appellant argued the mother had been motivated to encourage false allegations due to family law proceedings.

The Court of Appeal found no unfairness in the curtailment, noting that the central issue turned on the complainant's evidence, which the trial judge found clear and compelling.

The mother's evidence was largely peripheral and provided only corroboration.

The court also refused to admit fresh evidence as it failed to satisfy the Palmer test.

The appeal was dismissed.

The Court allowed the appeals and held that the mandatory victim surcharge in section 737 of the Criminal Code violates section 12 of the Charter for impecunious offenders.

The provision was declared of no force and effect immediately.

The appellant appealed his conviction for attempted murder and attempt to overcome resistance by suffocation against his wife, and his sentence of 11 years in custody.

The sole issue on appeal concerned the propriety of a sentencing order under section 743.21 of the Criminal Code that imposed an absolute prohibition on contact with his children during the custodial portion of his sentence.

The appellant argued the sentencing judge erred in principle by failing to recognize the division of responsibility between criminal sentencing and family law regimes, and that the family court or Children's Aid Society should determine the nature of his relationship with his children.

The Court of Appeal dismissed the appeal, finding no error in principle and that the sentence was fit.

A police sergeant was convicted of assault causing bodily harm after a trial.

The Crown sought a 60-day conditional sentence, while the defence sought an absolute or conditional discharge with probation and community service.

The court imposed a conditional discharge with 18 months probation, 200 hours of community service, a $1,000 victim surcharge, and DNA databank inclusion.

The court balanced the seriousness of police misconduct and the need for denunciation and deterrence against the officer's exemplary 19-year career, unblemished record, and the out-of-character nature of the incident.