Michal Fairburn

The appellant, an Aboriginal man, was convicted of manslaughter by a jury in the District of Kenora.

He appealed his conviction on the basis that the jury roll from which his petit jury was selected was unrepresentative, as it systematically under-represented Aboriginal on-reserve residents.

The Court of Appeal found that the state failed to make reasonable efforts to address known, long-standing problems with the delivery and return rates of jury questionnaires on reserves.

This failure violated the appellant's rights under sections 11(d) and 11(f) of the Charter.

The appeal was allowed and a new trial was ordered.

At a preliminary inquiry, the court determined whether sufficient evidence existed to commit three accused to trial.

The primary accused was charged with first-degree murder in connection with the brutal torture and killing of an elderly victim.

The court found evidence supporting committal on first-degree murder based on forcible confinement and planning and deliberation.

The accused's mother was charged with being an accessory after the fact, and the court found evidence that she assisted in the cleanup and disposal of evidence.

A third accused conceded committal.

All three were committed to stand trial.

The appellant appealed his conviction, arguing that the search of his computer bag and the contents of his computer violated section 8 of the Charter.

The Court of Appeal dismissed the appeal, finding that the search of the bag was incidental to the computer search and the evidence was duplicative.

Furthermore, the search warrant for the computer was not overly broad as it was anchored in the specific conditions of the appellant's Long-Term Supervision Order, which prohibited internet access.

The Court held that broad jury vetting consultations with police should not occur, that relevant jury-selection information from police must be disclosed, and that despite non-disclosure in this case there was no reasonable possibility the jury would have been differently constituted, no unfair trial, and no miscarriage of justice.

The appellant challenged fraud convictions on the basis of improper jury vetting by prosecution offices and police database checks of prospective jurors.

The court held that while disclosure obligations were breached and some vetting conduct was improper, a new trial requires a reasonable possibility that proper disclosure would have produced a differently constituted jury.

On the record, that threshold was not met.

The court also held that the conduct did not amount to a miscarriage of justice based on appearance of unfairness.

The appeal was dismissed.

The Court addressed whether Crown-requested police background checks of prospective jurors were permissible and what disclosure duties followed from that practice.

It held that limited criminal-record checks to assess juror eligibility are permissible, and that relevant information obtained for jury selection must be disclosed to the defence.

Applying the appellate non-disclosure framework, the Court found no reasonable possibility that disclosure failures changed jury composition.

The Court also held the impugned conduct did not meet the threshold for miscarriage of justice based on appearance of unfairness.

The appeals from conviction were dismissed.

The appellant appealed his convictions for first degree murder and kidnapping, arguing that the Crown and police engaged in improper jury vetting.

The Crown had requested police to conduct extensive background checks on prospective jurors, including traffic violations and police contacts, and to provide comments on their suitability.

This information was used by the Crown in exercising peremptory challenges but was not disclosed to the defence.

The Court of Appeal found that the extent of the jury vetting, the violation of privacy legislation and Crown policy, and the failure to disclose the information disrupted the balance in the jury selection process.

This created an appearance of unfairness amounting to a miscarriage of justice.

The appeal was allowed and a new trial ordered.

On a Crown appeal in a criminal matter, the Court addressed whether prior compelled civil discovery testimony could be used to cross-examine an accused at trial without violating s. 13 of the Charter.

A majority held that only prior testimony that is itself incriminating engages the constitutional protection, and that non-incriminating prior statements used solely for impeachment do not trigger s. 13.

The majority restored the conviction for dangerous driving causing bodily harm and set aside the order for a new trial.

A dissenting minority would have barred the cross-examination, finding that compelled prior testimony assisting the prosecution in any way should remain protected.

The appellant appealed his conviction for child pornography offences, arguing the trial judge erred in admitting evidence obtained from a search of his computer under s. 24(2) of the Charter.

The police had obtained his subscriber information from his Internet service provider without a warrant, which the trial judge found breached s. 8.

The Court of Appeal dismissed the appeal, relying on its companion decision in R. v. Ward to hold that obtaining the subscriber information did not violate s. 8, and alternatively, that the trial judge made no error in her s. 24(2) analysis admitting the evidence.

The appellant was convicted of accessing and possessing child pornography after police obtained his subscriber information from his Internet Service Provider (ISP) without a warrant, using it to obtain a search warrant for his residence.

On appeal, the appellant argued that the police violated his section 8 Charter rights by obtaining his subscriber information without prior judicial authorization.

The Court of Appeal dismissed the appeal, holding that while the appellant had a subjective expectation of privacy in his internet activity, this expectation was not objectively reasonable given the ISP's terms of service and its legitimate interest in preventing the criminal misuse of its services.

The court also found that the information to obtain the search warrant contained sufficient grounds.

The appellant, a 19-year-old first offender on bail, killed a police officer while fleeing arrest in a stolen vehicle.

He was convicted of manslaughter and sentenced to 12 years' imprisonment and a 10-year driving prohibition.

On appeal, he argued the sentence was unfit and the sentencing judge erred in her findings of fact, admission of a video tribute, and application of sentencing principles.

The Court of Appeal dismissed the appeal, finding no error in principle and concluding that the sentence, while at the high end of the range, was not demonstrably unfit given the paramountcy of denunciation and deterrence in these circumstances.

The applicants, appealing their convictions, sought disclosure or production of band lists used by the Court Services Division to prepare jury rolls in the Kenora District and Simcoe County.

They argued the lists were necessary to demonstrate systemic underrepresentation of First Nations persons on the jury rolls, which violated their Charter rights.

The Court of Appeal granted the application, finding that the requested records met the 'likely relevant' test for third-party production under O'Connor, as they could be used to test the statements of Crown deponents and understand the jury roll preparation process.

Two sets of proposed interveners sought to be added as parties to two separate criminal appeals in order to cross-examine witnesses and tender evidence regarding the jury panel selection process.

The court dismissed the motions to add them as parties, noting that adding strangers as parties to a criminal appeal is inappropriate.

However, the court granted the applicants intervener status as friends of the court and, exceptionally, exempted them from the usual condition of accepting the record as it exists, allowing them to potentially augment the record and cross-examine witnesses.

The appellant appealed his conviction for first degree murder following an 18-month trial.

At the appeal hearing, the self-represented appellant claimed he was unable to make submissions due to his mental state but provided no supporting medical evidence.

The Court of Appeal refused his adjournment request and, after reviewing the record, found no evidentiary or procedural errors by the trial judge.

The court noted the appellant's extensive efforts to delay and obstruct the trial process, commending the trial judge for her restraint and fairness.

The appeal was dismissed.

Multiple appellants challenged jury convictions for two first degree murders and attempted murder arising from a retaliatory gang-related shooting.

The court rejected allegations of unfair trial management, unfair jury instructions, improper admission of prior K.G.B. statements and preliminary inquiry evidence, erroneous refusal of severance, improper admission of intercepted artistic expression, and misdirection on cell phone location evidence.

Applying a threshold reliability analysis informed by Khelawon, the court upheld admission of a key unavailable witness's prior statements.

The court also dismissed a fresh evidence application concerning synchronization of 911 and carrier clocks, holding the proposed evidence would not reasonably have affected the verdict given the broader evidentiary record.

The appellant was convicted of dangerous driving causing bodily harm following a motorcycle accident.

In a related civil action, he was examined for discovery and testified he had no memory of the accident.

At his criminal trial, he gave a detailed account of the accident.

The trial judge allowed the Crown to cross-examine the appellant on his discovery evidence to impeach his credibility, finding that s. 13 of the Charter did not apply.

The Court of Appeal allowed the appeal and ordered a new trial, holding that under R. v. Henry, prior compelled evidence is inadmissible against an accused even for the purpose of challenging credibility.

The appellants appealed convictions for two counts of first degree murder and two counts of conspiracy to commit murder arising from planned execution-style killings.

They argued that undisclosed police criminal-record checks on prospective jurors created an unfair jury selection process and that the trial judge's final charge contained multiple reversible errors, including inadequate Vetrovec cautions and erroneous instructions on duress, conspiracy, included offences, bad character, and written jury materials.

The court held that any positive criminal-record information should have been disclosed, but the appellants failed to show a reasonable possibility that the non-disclosure affected the verdict or the overall fairness of the trial, particularly given trial counsel's awareness and inaction.

Although aspects of the charge were imperfect, the instructions were adequate when read as a whole and the prosecution case was overwhelming.

The appeals were dismissed.

The appellant appealed his conviction for aggravated assault and his one-year custodial sentence.

He argued the trial judge misapprehended evidence regarding his role in a gang attack and provided insufficient reasons.

The Court of Appeal dismissed the appeal, noting the appellant gave two voluntary statements to police explicitly acknowledging his role in the assault.

The court also upheld the sentence, finding it fit given the sudden and vicious nature of the attack by multiple people.

The appellant, convicted of first degree murder, brought an application under s. 684 of the Criminal Code for state-funded counsel for his appeal.

He first requested an adjournment because duty counsel was unavailable, which the court denied as he had prior notice the hearing would proceed regardless.

Applying the Bernardo test, the Court of Appeal dismissed the s. 684 application, finding that the appellant, a former police officer, was capable of effectively presenting his appeal and that the court could properly decide the issues without the assistance of counsel.

The court also directed that the appellant be provided access to legal materials in his cell while in segregation.

The Crown appealed the acquittal of the respondent on charges of attempted murder, conspiracy to commit murder, and counselling to commit murder.

The trial judge had excluded intercepted private communications under s. 24(2) of the Charter, finding that the police affiant and Crown agent acted improperly in obtaining the wiretap authorization.

The Court of Appeal allowed the appeal, holding that the trial judge exceeded his jurisdiction by excising correct information from the affidavit and erred in finding that the remaining information was insufficient.

The Court also found that the trial judge made palpable and overriding errors regarding the conduct of the police affiant and the legal duties of the Crown agent.

A new trial was ordered.