Michal Fairburn

Following a joint trial, both appellants challenged convictions for possession of cocaine for trafficking and related proceeds offences, largely on factual grounds.

The court found no basis to interfere with the trial findings.

Leave to appeal sentence for one appellant was granted but dismissed on the merits.

The appellant appealed his second-degree murder conviction, arguing the trial judge erred in finding a breach of the rule in Browne v. Dunn and in giving a restrictive corrective instruction.

The trial judge had instructed the jury that they could not find a key Crown witness fabricated her evidence about the appellant's confession because defence counsel did not explicitly put that suggestion to her in cross-examination.

The Court of Appeal allowed the appeal, finding no breach of the rule occurred as the tenor of the cross-examination made the defence's position clear.

Furthermore, the corrective instruction erroneously usurped the jury's function by prohibiting them from considering whether the witness fabricated the confession.

The curative proviso was not applied, and a new trial was ordered.

The appellant was acquitted of possession of proceeds of crime after over $1.2 million in cash was excluded from his criminal trial under s. 24(2) of the Charter.

The Crown subsequently applied for forfeiture of the cash under s. 490(9) of the Criminal Code.

The trial judge conducted a fresh s. 24(2) analysis, admitted the evidence, and ordered forfeiture.

On appeal, the appellant argued that his acquittal created an issue estoppel preventing the trial judge from finding his possession was unlawful or conducting a fresh s. 24(2) analysis.

The Court of Appeal dismissed the appeal, holding that the acquittal did not logically necessitate a finding of lawful possession, and that a s. 24(2) analysis in a forfeiture proceeding involves different considerations than in a criminal trial.

An appeal concerning a non-publication order imposed under section 517 of the Criminal Code at a bail hearing.

The Court of Appeal for Ontario issued reasons for decision regarding the applicability and scope of the publication ban, which restricts the publication, broadcast, or transmission of evidence, information, representations, and reasons given at the bail hearing.

The appellants were charged with unlawfully damaging and/or destroying protected rattlesnake habitat contrary to the Endangered Species Act, 2007.

They brought a s. 11(b) Charter application for a stay of proceedings based on unreasonable delay, which was dismissed by the trial judge.

The appellants then sought certiorari and s. 24(1) Charter relief in Superior Court, arguing the trial judge failed to characterize certain disclosure as "obviously relevant" and failed to attribute all delay to the Crown.

The Superior Court dismissed both applications.

The Court of Appeal upheld the dismissal, finding no jurisdictional error and rejecting the argument that the degree of relevance of outstanding disclosure alleviates the defence's obligation to act diligently.

The appeal was dismissed.

The appellant appealed his conviction for sexual assault and the sentence imposed.

The conviction appeal raised two grounds: first, that the trial judge failed to address frailties in the complainant's evidence and material inconsistencies, and second, that the trial judge erred in her section 11(b) Charter analysis regarding defence delay.

The Court of Appeal found no error in the trial judge's credibility assessment or her apportionment of delay.

The appellant received a two-year custodial sentence for a serious sexual assault of a 13-year-old child.

The Court of Appeal dismissed both the conviction appeal and the sentence appeal, finding the sentence fit and appropriate.

Appeal from conviction for aggravated assault of a two-year-old child.

The appellant was convicted based on medical evidence establishing that the child's severe cranial fracture and extensive bruising could not have resulted from accidental falls or self-inflicted injuries.

The appellant provided multiple inconsistent accounts of events, culminating in trial testimony that the child fell from a bed and then engaged in self-injurious conduct.

The trial judge rejected the appellant's credibility based on inconsistencies with medical evidence, the implausibility of the narrative, and the failure to mention the critical fall from the bed in earlier statements.

The appeal challenged whether the trial judge erred by rejecting credibility based on the appellant's access to disclosure and presence at trial.

The court dismissed the appeal, finding no reversible error and applying the curative proviso based on overwhelming evidence.

The appellant appealed a disposition order from the Ontario Review Board continuing his detention at a forensic psychiatric hospital.

The appellant sought a conditional discharge with terms requiring attendance and voluntary readmission.

The Board found that continued detention was necessary as the least onerous and restrictive disposition given the appellant's significant threat to public safety, chronic drug-induced psychosis, severe addiction, and need for supervised community reintegration.

The Court of Appeal upheld the Board's decision, finding it fell within a range of reasonable outcomes and was supported by expert evidence regarding the necessity of hospital-approved housing and the inadequacy of Mental Health Act provisions for rapid intervention.

This decision concerns a non-publication order imposed under section 517 of the Criminal Code at a bail hearing.

The Court of Appeal for Ontario issued reasons addressing the application of the publication ban, which restricts the publication, broadcast, or transmission of evidence, information, representations, and reasons given at the bail hearing.

The decision itself contains information covered by the non-publication order and will only be made available on the Court of Appeal's website once the order ceases to be in effect.

The appellant appealed his conviction on charges of sexual assault and sexual interference, challenging the Ontario Court of Justice judge's refusal to permit him to re-elect trial mode without Crown consent under section 561(2) of the Criminal Code.

The appellant had initially elected trial in the Ontario Court of Justice in August 2020, but sought to re-elect to Superior Court of Justice with judge and jury in January 2021.

The central issue was the proper interpretation of "the day first appointed for the trial" for purposes of the 60-day deadline to re-elect without Crown consent.

The Court of Appeal dismissed the appeal, holding that November 19, 2020—when a section 278.3 application regarding third-party records was scheduled—constituted the day first appointed for trial, making the deadline for re-election September 20, 2020.

The appellant's January 2021 re-election was therefore untimely.

The appellant appealed his conviction for first degree murder on the sole ground that the trial judge erred in dismissing a mistrial application.

The Crown had improperly elicited inadmissible hearsay evidence regarding the appellant's connection to a residential address and inadmissible opinion evidence identifying the appellant in surveillance video from that address.

The trial judge provided a timely and forceful mid-trial corrective instruction and reinforced it in the final charge to the jury.

The Court of Appeal upheld the dismissal of the mistrial application, finding that the corrective instructions were adequate to remedy any prejudice and that a mistrial was not necessary.

The court emphasized that mistrial is a remedy of last resort and that where corrective instructions can safely repair a compromised trial, they should be employed.

Appeal from a conviction for second-degree murder.

The appellant admitted to being the shooter and guilty of manslaughter but contended that his intoxicated state and the suddenness of events should have created reasonable doubt as to whether he possessed the requisite mens rea for murder.

The trial judge provided a rolled-up instruction to the jury on the cumulative effect of evidence regarding intoxication on the mental element for murder.

The appellant argued the trial judge failed to adequately describe evidence of his intoxication from a bartender and evidence of a brewing altercation inside the bar.

The Court of Appeal found no error in the trial judge's approach and upheld the conviction, applying the curative proviso based on the overwhelming Crown case.

Appeal from conviction for sexual assault and related offences.

The sole ground of appeal concerned an unsuccessful application to stay proceedings for unreasonable delay.

After accounting for defence delay, the trial judge found net delay of over 18 months and identified two exceptional circumstances, including pandemic-related backlog.

The appellant argued the trial judge erred by failing to articulate how pandemic delay specifically impacted the case and by speaking in generalities.

The appellate court upheld the trial judge's reasoning, finding it was open to her to rely on her familiarity with the jurisdiction and the pandemic delay it was experiencing, and that she was not required to assign the delay to a particular period of time.

The appellant appealed a three-year penitentiary sentence imposed for two counts of possession for the purpose of trafficking involving approximately 1.2 kilograms of cocaine and over 800 grams of methamphetamine.

The Crown had sought six years while the defence sought a two-year-less-a-day conditional sentence.

The appellant argued the trial judge erroneously relied on other seized items (cash, cocaine press, ammunition, and other drugs) to determine his level of involvement, contending these items had not been proven as separate offences.

The Court of Appeal upheld the sentence, finding the trial judge properly considered facts from the agreed statement of facts to assess the appellant's level of involvement and imposed a fit sentence considering all circumstances, including mitigating factors and the appellant's genuine remorse.

The Court of Appeal for Ontario addressed outstanding issues in a motion brought by the respondent seeking orders under ss. 683(1)(a) and (b) of the Criminal Code in support of an anticipated fresh evidence application.

The court considered two primary issues: (1) whether the Executive Legal Officer of the Superior Court should be required to provide a will-say statement and submit to cross-examination regarding communications with trial Crown counsel; and (2) whether counsel for the respondent could communicate with the now-retired trial judge to obtain clarification on matters raised in the trial judge's emails.

The court dismissed the motion for a will-say and cross-examination of the Executive Legal Officer, finding that while the communications were not themselves privileged, the risk of inadvertently disclosing matters subject to judicial immunity outweighed the limited probative value of the evidence sought.

The court also directed that neither counsel could communicate with the retired trial judge, holding that judges cannot waive judicial immunity and that the inquiries sought would necessarily disclose matters covered by judicial immunity.

Three appellants were convicted of first-degree murder in the 2018 shooting death of Nnamdi Ogba.

The appellants appealed on seven grounds, including challenges to jury instructions on modes of participation, admissibility of expert gang evidence, after-the-fact conduct evidence, firearm videos, W.(D.) instructions, Browne v. Dunn breaches, and jury roll compilation errors.

The Court of Appeal found that the jury instructions on modes of participation under sections 21(1)(b) and 21(2) of the Criminal Code were deficient and that there was no air of reality to section 21(2) liability.

The court allowed the appeals, set aside the convictions, and ordered a new trial.

The court upheld the admissibility of expert gang evidence and other evidentiary rulings.

The appellant appealed his convictions for sexual interference, possession of child pornography, making sexually explicit material available to a child, and assault.

He argued that the trial judge failed to properly consider expert evidence regarding his cognitive disability when admitting his police statements and assessing his credibility.

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

However, the court allowed the sentence appeal, finding two errors in principle: the trial judge failed to recognize that the appellant's intellectual disability attenuated his moral blameworthiness despite his understanding of consequences, and the trial judge erred in refusing to grant COVID-19 credit.

The sentence was reduced from six years to four years and three months.

The appellant appealed his conviction for sexual assault, sexual interference, invitation to sexual touching, two counts of assault, and threatening death committed against his 12-13 year-old step-daughter, as well as his indeterminate sentence as a designated dangerous offender.

The appellant challenged the trial judge's credibility findings regarding the complainant and argued the trial judge erred in principle by misapprehending expert evidence regarding age-related attenuation of violence and reoffending.

The Court of Appeal dismissed both the conviction appeal and the sentence appeal, finding no errors in the trial judge's reasoning or application of the law.

The appellant was convicted of sexual assault, invitation to sexual touching, and incest against his daughter, committed between November 1998 and February 2002 when the victim was between 8 and 12 years old.

He was sentenced to 11 years' imprisonment.

On appeal, the appellant challenged the fairness of the trial based on the Crown's closing address and the reasonableness of the incest conviction.

He also appealed his sentence.

The Court of Appeal dismissed both the conviction appeal and the sentence appeal, finding no error in the trial judge's instructions, sufficient evidence to support the incest conviction, and that the sentence was fit and warranted given the appellant's prior conviction for similar offences against a young child.

The Crown appealed an acquittal for sexual assault, arguing the trial judge erred in requiring proof that the offence occurred within a specific one-hour window after the accused raised an alibi defence.

The accused cross-appealed his conviction for assault, arguing the verdict was unreasonable.

The Court of Appeal allowed the Crown's appeal, holding that the exact time of the offence was not an essential element and the alibi did not freeze the Crown's case to the time estimated by the complainant in cross-examination.

A conviction for sexual assault was substituted.

The accused's cross-appeal was dismissed, as the trial judge's treatment of the defence evidence was not inconsistent.