Misha Alexander Feldmann

The Court of Appeal for Ontario dismissed the Crown's appeal from a directed verdict of acquittal for Abdullahi Osman, who was charged as an accessory after the fact to murder.

The court held that, although attempted murder can in rare cases be an included offence to murder, there was no air of reality to the included offence of being an accessory after the fact to attempted murder in this case, as the evidence was clear that the principal's acts caused the victim's death.

The decision clarifies the law on included offences, the requirements for accessory after the fact liability, and the rare circumstances in which attempted murder may be left to a jury as an included offence where the victim dies.

The decision addresses the admissibility and weight of evidence in a drug trafficking prosecution, focusing on the negligent loss of a police entry video documenting the state of the apartment before a search.

The court finds a breach of section 7 of the Charter due to unacceptable police negligence but declines to exclude the evidence, instead giving reduced weight to the testimony of the officers responsible.

The accused is found guilty on the drug trafficking counts but acquitted on the proceeds of crime count.

The court sentenced Mwanza Serge Mutombo for aggravated assault after a guilty plea.

The facts involved a vicious, unprovoked attack on a vulnerable, homeless victim, resulting in severe injuries.

The court considered aggravating factors such as Mutombo’s significant criminal record, the use of a weapon, and the vulnerability of the victim, as well as mitigating factors including his guilty plea, disadvantaged background, and harsh pre-sentence custody conditions.

The court reviewed relevant case law and sentencing ranges, ultimately imposing a nine-year sentence, less pretrial custody credit, and making ancillary orders including a lifetime weapons prohibition and DNA order.

The accused, Malcom Bryce-Brown, faced ten criminal counts, including sexual assault, assault bodily harm, assault, possession of child pornography, and probation breaches.

The court found the accused guilty of possession of child pornography, two counts of assault (one causing bodily harm), and three related probation breaches based on concessions.

For the remaining counts, including sexual assault and assault bodily harm related to a choking incident, the court found reasonable doubt regarding consent, particularly concerning the agreed-upon "safe word" and the complainant's impaired memory due to marijuana use.

The court also addressed the legal principles of vitiation of consent in sexual activity involving bodily harm, concluding that the Crown did not prove the subjective intent to cause bodily harm required to vitiate consent in the choking incident, nor was sufficient evidence of bodily harm presented.

The defendant sought to exclude evidence (a sawed-off shotgun and ammunition) seized under a search warrant, arguing the warrant was invalid due to a breach of his s. 7 Charter rights (loss of surveillance video) and insufficient grounds.

The court found a s. 7 Charter breach due to unacceptable police negligence in losing the video, remedying it by excising a subjective observation from the Information To Obtain (ITO).

However, the court determined that even with the excision, there were sufficient credible and corroborated grounds from a confidential informant and police surveillance for the justice of the peace to issue the warrant for the defendant's associated residence.

The application to exclude the evidence was dismissed.

The accused pleaded guilty to possession of cocaine and fentanyl for the purpose of trafficking.

A Gardiner hearing determined that the accused believed he possessed only cocaine, not fentanyl.

The court found the accused was not wilfully blind to the nature of the substance.

The accused, a young first-time adult offender with strong family support and early guilty plea, was sentenced to two years imprisonment: fifteen months for cocaine trafficking and nine months consecutive for fentanyl trafficking, with ancillary orders including DNA databank sample, weapons prohibition, and forfeiture.

The appellant was convicted after a 21-day jury trial of 32 charges including sexual assault, assault with a weapon, and assault causing bodily harm.

The convictions arose from a pattern of domestic abuse spanning over 10 years, including facilitation of sexual assault by strangers and assaults with various weapons.

The appellant appealed on grounds of ineffective assistance of counsel and multiple errors in the jury charge.

The Court of Appeal dismissed all grounds of appeal, finding no merit to the claims of ineffective assistance or errors in the charge to the jury.

Applicants charged with possession of marijuana for the purpose of trafficking brought a Charter application seeking exclusion of evidence on the basis that police breached their rights under sections 8, 9, and 10(b) of the Canadian Charter of Rights and Freedoms.

The applicants were stopped by plainclothes detectives during a community policing patrol.

The court found that although the applicants were arbitrarily detained when police blocked their passage on the sidewalk and exited their vehicle, the Charter breaches were not sufficiently serious to warrant exclusion of evidence under section 24(2).

The court admitted the evidence, finding that the detention was brief, the officer had reasonable grounds to arrest based on the smell of marijuana, and the reliable evidence was essential to the Crown's case.