Michael S. Dunn

The appellant, Matthew Desouza, appealed his seven-year sentence for human trafficking, assault with a weapon, and failing to comply with a release order.

He argued that the sentencing judge failed to properly apply Gladue principles and that the sentence was unfit.

The Court of Appeal found that the sentencing judge gave appropriate consideration to Gladue factors, the seriousness of the offence, and mitigating factors such as remorse and a guilty plea.

The appeal was dismissed.

J.P., convicted of sexual assault and sentenced to three and a half years incarceration, was denied release pending appeal by a single judge.

J.P. sought a panel review of that decision, arguing the motion judge erred in principle by relying on public safety, misassessing the appeal's strength, and incorrectly finding serious compliance issues.

The Court of Appeal dismissed the request for a release order, finding no palpable and overriding error or material error in principle in the motion judge's decision, which was based on the public confidence component of the public interest test, incorporating public safety and compliance concerns.

The Crown appealed the respondent's acquittal on multiple charges including assault and sexual assault.

The Court of Appeal found that the trial judge erred in law by adopting a "piecemeal" approach to assessing the evidence, specifically by discrediting the complainant's testimony before considering the probative force of a corroborating video.

This error might reasonably have had a material bearing on the acquittal.

The appeal was allowed, and a new trial was ordered on all counts.

The appellant, Adam Collier, appealed his conviction for child luring and child pornography offences, and sought leave to appeal his sentence.

The appeal focused on the trial judge's assessment of his credibility, specifically her reliance on omissions in his pre-trial statement to the police and his demeanor during the interview, in light of his Autism Spectrum Disorder (ASD) diagnosis.

The Court of Appeal dismissed the conviction appeal, finding no error in the trial judge's use of material inconsistencies, including omissions, for credibility assessment.

Leave to appeal sentence was granted, but the sentence appeal and a fresh evidence motion were also dismissed.

The appellant, convicted of two counts of fraud over $5,000, appealed his sentence of two years' less one day imprisonment and two years' probation, along with forfeiture and a fine.

He argued the sentencing judge erred by not granting credit for presentence custody or time under restrictive bail conditions, and that the sentence was demonstrably unfit.

The Court of Appeal dismissed the appeal, finding no error in denying credit for presentence custody due to lack of causal connection to the fraud charges.

While acknowledging an error in the sentencing judge's assessment of the link for restrictive bail conditions, the Court found the conditions were not punitive enough to warrant mitigation.

The Court affirmed the fitness of the sentence, emphasizing the need for denunciation and deterrence for sophisticated frauds.

The appellant, A.V., appealed his conviction for sexual interference under s. 151 of the Criminal Code, committed abroad against his daughter.

The appeal raised three grounds: the constitutionality of s. 7(4.1) of the Criminal Code (overbreadth under s. 7 of the Charter), the trial judge's failure to address reliability concerns regarding the complainant's "flashback" evidence, and the trial judge's alleged improper use of the complainant's prior consistent statements.

The Court of Appeal dismissed all grounds, affirming the trial judge's finding that s. 7(4.1) is not overbroad, as its purpose is to deter Canadian citizens and permanent residents from engaging in child sexual exploitation abroad.

The court also found that the trial judge adequately addressed the complainant's reliability and properly used prior consistent statements for narrative and to rebut recent fabrication, without relying on their truth for bolstering reliability.

The appellant, P.S., appealed his conviction for sexual assault and the imposed sentence of 18 months imprisonment followed by probation.

He sought to convert the remaining 90 days of his sentence to a conditional sentence, citing ailing health issues including COPD, hernia, anxiety, depression, and possible bladder surgery.

The Court of Appeal dismissed the appeal, upholding the sentencing judge's decision, as there was no evidence that the appellant's medical conditions could not be accommodated in a carceral setting.

The appellant, Najib Amin, appealed his murder conviction, arguing the trial judge erred in admitting "bad act" evidence (murder advice given to an undercover officer) and failing to provide proper jury warnings.

The Court of Appeal found that the trial judge incorrectly applied the Handy and Hart tests for admissibility of bad act evidence and confessions from undercover operations.

The murder advice, used to prove identity, lacked sufficient similarity to the actual killing to be admissible under Handy's identity rule.

Furthermore, the trial judge failed to adequately warn the jury about the dangers of misusing this highly prejudicial evidence, creating a real risk of wrongful conviction based on character rather than proof.

The Court allowed the appeal, quashed the conviction, and ordered a new trial.

The applicant, B.B., sought release pending the determination of his appeal from convictions for sexual assault and assault.

The application was dismissed as the applicant failed to satisfy the public interest criterion under s. 679(3)(c) of the Criminal Code.

The court found that the enforceability interest significantly outweighed the reviewability interest, primarily due to the serious nature of the offences and the applicant's inability to provide a sufficiently complete record (missing trial transcripts) to demonstrate that the grounds of appeal clearly surpassed the 'not frivolous' threshold.

The appellant, Alexsander Budimirovic, appealed his conviction for two counts of fraud and one count of attempted fraud.

The appeal raised four grounds: the trial judge's failure to give a limiting instruction on propensity reasoning between counts, error in admitting videotaped hearsay statements (Hockett Statements) for their truth, failure to caution the jury about relying on the Hockett Statements without corroboration, and refusal to grant an adjournment after the appellant discharged his counsel.

The Court of Appeal dismissed all grounds of appeal, affirming the trial judge's instructions on propensity reasoning, the admissibility of the Hockett Statements based on procedural reliability, the adequacy of the caution regarding the statements, and the proper exercise of discretion in refusing the adjournment.

The appellant, S.M., appealed convictions on eight counts related to human trafficking for sex work and assault causing bodily harm, as well as the imposed sentence.

The Court of Appeal dismissed both the conviction and sentence appeals.

Key issues included the application of the s. 276 screening procedure to sex trafficking offences and the trial judge's credibility findings.

The court also addressed the appellant's argument regarding the trial judge's failure to consider systemic anti-Black racism in sentencing, finding no error as the issue was not raised at trial and no foundation was laid.

The appellant, Robert Freedland, appealed his conviction for counselling extortion.

The Crown's case relied heavily on the testimony of a key witness, Mr. James, whose credibility was central.

The Court of Appeal considered two main issues: the admissibility of non-expert opinion evidence from a store clerk and the trial judge's failure to provide a limiting instruction regarding Mr. James's prior consistent statements.

The court found that while the error regarding the non-expert opinion evidence was harmless, the failure to instruct the jury on the limited use of prior consistent statements constituted non-direction amounting to misdirection, which was not salvageable by the curative proviso.

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

This motion concerned a fresh application for a release order pending appeal after the applicant inadvertently failed to surrender on a specified date due to counsel's oversight.

The applicant, convicted of child luring and child pornography offences, promptly surrendered upon discovering the error.

While the Crown consented to release on previous terms, the Court of Appeal, exercising its discretion under s. 679(1) of the Criminal Code, imposed significantly higher financial penalties ($50,000 promise to pay and $20,000 deposit) to ensure public safety, given the nature of the offences and the lack of practical supervision for internet restrictions without sureties.

The Crown appealed a Court of Appeal decision that set aside the accused's conviction for sexual offences against a young child and entered an acquittal.

The trial judge had admitted the child's unsworn videotaped police statement under the principled exception to the hearsay rule after a psychologist concluded the child could not testify without undue trauma.

The Court of Appeal majority found the trial judge erred in the threshold reliability analysis by failing to address the role of cross-examination and making a positive finding of no motive to fabricate.

The Supreme Court of Canada allowed the Crown's appeal, substantially adopting the reasons of the Court of Appeal dissent, and restored the conviction.

The appellant appealed convictions for sexual assault and sexual interference and an indeterminate dangerous offender sentence.

The appeal raised two grounds: an alleged s. 11(b) Charter breach due to delay in the dangerous offender hearing, and an error in the interpretation and application of s. 752.1 of the Criminal Code regarding assessor designation.

The Court of Appeal dismissed the appeal, finding no s. 11(b) infringement as it was a transitional case with exceptional circumstances (dangerous offender proceedings and Crown illness).

While the trial judge erred in applying a presumption for the Crown's proposed assessor under s. 752.1, this error caused no substantial wrong or miscarriage of justice given the fairness of the proceedings and the overwhelming evidence supporting the dangerous offender designation.

The appellant was convicted of criminal harassment, assault, mischief, extortion, sexual assault, forcible confinement, and breach of probation.

He appealed, arguing that the trial judge misapprehended evidence concerning post-offence emails and the testimony of a defence witness, which he claimed undermined trial fairness.

The Court of Appeal dismissed the appeal, finding no misapprehension of evidence regarding the emails (as the overlooked email was not part of the evidentiary record) and no trial unfairness.

The court also found no misapprehension of the defence witness's evidence, as the trial judge's reasons reconciled it with the complainant's testimony.

The conviction appeal was dismissed, and leave to appeal sentence was not granted.

The Crown appealed the acquittals of the respondent on two counts of criminal negligence causing bodily harm, which arose from an incident where her dogs attacked a toddler and a babysitter.

The appeal focused on the trial judge's ruling to exclude evidence of three prior incidents involving the dogs.

The Court of Appeal found that the trial judge erred in law by treating the absence of "discreditable conduct" as a basis for exclusion rather than as a factor in applying the similar fact evidence rule.

The court also found that the trial judge misapprehended material evidence regarding the timing and relevance of the prior incidents.

The appeal was allowed, the acquittals were set aside, and a new trial was ordered, with the prior incident evidence deemed admissible.

The appellant, S.S., appealed his conviction for sexual assault and sexual interference involving his niece, E.B., based on the admission of E.B.'s unsworn, videotaped police statement as hearsay evidence.

The Court of Appeal found that the trial judge erred in assessing the threshold reliability of the statement by downplaying the importance of cross-examination and misapprehending evidence regarding E.B.'s potential motive to fabricate.

The court concluded that without adequate substitutes for cross-examination, the statement did not meet the high standard for threshold reliability, especially given concerns about E.B.'s perception, sincerity, and inconsistent statements.

The appeal was allowed, and an acquittal entered.

The appellant, Hubert Nathanial Shilling, appealed his convictions for two counts of sexual interference and sought leave to appeal his four-and-a-half-year sentence.

The appeal challenged the trial judge's assessment of the complainant's credibility, the rejection of a motive to fabricate, and the use of corroborating evidence.

The appellant also brought a fresh evidence motion, citing his contraction of COVID-19 and a PTSD diagnosis during incarceration, seeking a reduced sentence.

The Court of Appeal dismissed the fresh evidence motion, the conviction appeal, and the sentence appeal, finding no errors in the trial judge's reasoning or the fitness of the sentence.

The appellant, an overnight attendant at a group home, was convicted of criminal negligence causing the death of a resident with developmental disabilities who drowned in a bathtub.

The appellant had left the resident unsupervised, contrary to an "eyes-on" protocol.

On appeal, the court found the verdict unreasonable due to insufficient evidence of causation.

The forensic pathologist's opinion on drowning was based on information not fully supported by the record, and he could not eliminate other potential causes like a sudden cardiac event.

The court noted a risk of the jury reasoning backward from the death to infer causation without sufficient evidentiary basis.

The conviction was set aside, and an acquittal was entered.