Morris Pistyner

The appellant appealed his conviction for possession for the purpose of trafficking cocaine and related weapons offences, as well as his five-year sentence for trafficking.

The appellant argued that the trial judge misapprehended the evidence regarding his presence in the bathroom and possession of the cocaine, that the verdict was unreasonable due to unexplained contradictions, and that he received ineffective assistance of counsel because a key witness was not called.

The Court of Appeal dismissed all grounds of appeal, finding that the trial judge's findings of fact and credibility were supported by the evidence and owed deference, that fresh evidence regarding ineffective assistance did not meet the Palmer test, and that the sentence was fit and within the appropriate range.

The appellant sought leave to appeal a 16-month global sentence imposed for trafficking in crack cocaine while on probation.

Although the sentencing judge initially misunderstood counsel's submission regarding the proposed sentence, the Court of Appeal found the sentence was fit given the nature of the offense, the quantity and type of drugs involved, and the breach of probation.

The sentencing judge appropriately declined to impose an unfit sentence to avoid adverse immigration consequences for the appellant.

Leave to appeal was granted but the appeal was dismissed.

The appellants were convicted by a jury of conspiracy to traffic in cocaine and possession of proceeds of crime.

They appealed their convictions on the grounds that jurors were exposed to extrinsic information (including internet searches and old newspaper articles) during the trial, and that the trial judge erred in her instructions on the co-conspirator hearsay exception.

The Court of Appeal dismissed the appeal, finding no reasonable possibility that the extrinsic information affected the verdict given the trial judge's instructions and the nature of the information.

The court also upheld the trial judge's conspiracy instructions as compliant with the Carter and Mapara framework.

The appellant appealed his conviction and sentence for possession of a large amount of heroin.

The Court of Appeal dismissed the conviction appeal, finding no error in the trial judge's finding of wilful blindness based on admissible evidence of earlier shipments.

The sentence appeal was also dismissed, as the trial judge properly considered the parity principle and mitigating factors.

Applying the principle from R. v. Sidhu, the court held that the appellant's mistaken belief in the nature of the substance seized could not be treated as a mitigating factor.

The appellant appealed an order varying a restraining order that permitted the sale of a property and directed the distribution of proceeds to a mortgagee.

The Court of Appeal quashed the appeal, finding that neither the Controlled Drugs and Substances Act nor section 490 of the Criminal Code provides a right of appeal from an order varying a restraining order in these circumstances.

The Crown appealed the accused's acquittal on a charge of possession of cocaine for the purpose of trafficking.

The trial judge had excluded the evidence of 205 kg of cocaine found in the accused's tractor-trailer, finding a breach of s. 8 of the Charter.

The Court of Appeal allowed the appeal and ordered a new trial, holding that the trial judge erred by placing the onus on the Crown under s. 24(2), by finding that a concurrent criminal law purpose invalidated a regulatory search under the Highway Traffic Act, and by failing to meaningfully balance the Grant factors.

The appellant appealed his conviction and sentence for possession of cocaine for the purpose of trafficking.

He argued that the trial judge erred in accepting the police officers' evidence over his own regarding who discarded the cocaine.

The Court of Appeal dismissed the conviction appeal, finding no error in the trial judge's credibility findings.

The sentence appeal was also dismissed as moot since the sentence had already been served, and was otherwise fit.

The Crown appealed the accused's acquittal on drug trafficking charges.

The trial judge had found that an undercover police officer entrapped the accused by asking 'Can you hook me up?' without reasonable suspicion, and excluded the evidence under s. 24(2) of the Charter.

The Court of Appeal allowed the appeal, holding that the officer's question was merely an investigative step and did not provide an opportunity to commit an offence.

The Court set aside the finding of entrapment, entered guilty verdicts, and remitted the matter for sentencing.

The Court also noted that entrapment should only be considered after a finding of guilt, and that a stay of proceedings, rather than exclusion of evidence, is the proper remedy.

The Court of Appeal for Ontario held that the police use of Forward Looking Infra-Red (FLIR) aerial camera technology to detect heat emanating from a home constituted a search under section 8 of the Charter.

The Court found a serious breach of the accused's privacy rights, excluded the real evidence under section 24(2), and entered an acquittal.

A note appended to the decision indicates that the Supreme Court of Canada subsequently allowed an appeal of this judgment.

The RCMP used an airplane equipped with a Forward Looking Infra-Red (FLIR) camera to overfly the accused's home without a warrant.

The FLIR image, which detected heat emanations consistent with a marijuana grow operation, was used to obtain a search warrant.

The accused argued the FLIR overflight violated his right against unreasonable search and seizure under s. 8 of the Charter.

The Supreme Court of Canada held that the use of FLIR technology did not violate s. 8, as the accused did not have a reasonable expectation of privacy in the heat distribution patterns on the external surfaces of his home.

The appeal was allowed and the conviction restored.

The Crown appealed a stay of proceedings granted by the trial judge due to unreasonable delay.

The Court of Appeal dismissed the appeal, finding that the Crown failed to justify the delay of over four and a half years from the laying of the initial charges, and that the trial judge's findings regarding the prejudice suffered by the respondent were fully supported by the record.

The appellant appealed his conviction for possession of cocaine for the purpose of trafficking and his sentence.

He argued that the search warrant was invalid due to a defect in the copy and omissions in the information provided by confidential informants.

The Court of Appeal dismissed the conviction appeal, finding the warrant valid and the conviction supported by physical and expert evidence.

The sentence appeal was also dismissed, as the sentence was appropriate given the appellant's extensive record and a conditional sentence was not warranted.

The appellant was arrested for drug trafficking after police observed him engaging in suspected drug transactions.

Following a pat-down search, police conducted a strip search of the appellant in a public restaurant, which included pulling down his pants and forcibly removing a package of crack cocaine from his buttocks.

The Supreme Court of Canada held that while the common law power to search incident to arrest includes the power to strip search, such searches require reasonable and probable grounds and must generally be conducted at a police station absent exigent circumstances.

The Court found the strip search in this case violated s. 8 of the Charter because it was conducted in a public place without exigent circumstances and in an unreasonable manner.

The appeal was allowed and an acquittal entered.

The accused was charged with importing heroin and using a false passport after being threatened by a man in Belgrade who said he would harm her mother if she did not comply.

She raised the common law defence of duress, successfully arguing that the strict immediacy and presence requirements of section 17 of the Criminal Code violated section 7 of the Charter.

The Supreme Court of Canada held that it is a principle of fundamental justice that only voluntary conduct should attract criminal liability.

The Court found that section 17's requirements were too restrictive, infringed section 7, and could not be justified under section 1.

The Crown's appeal was dismissed and the acquittal upheld.

The seven appellants were convicted of trafficking in heroin following an undercover police operation.

They appealed their convictions on several grounds, primarily arguing that the 44.5-month delay between their charges and trial violated their right to be tried within a reasonable time under s. 11(b) of the Charter.

The Court of Appeal agreed with respect to six of the appellants, finding the delay was largely systemic and caused prejudice, and ordered a stay of proceedings for those six.

The appeal of the seventh appellant, who was arrested much later, was dismissed on all grounds, including arguments regarding the destruction of police notes, jury instructions, and sentence fitness.

The appellant challenged marijuana possession and trafficking convictions by arguing that the former statutory prohibition violated s. 7 of the Charter, exceeded federal jurisdiction, and was not proven on the evidence.

The court held that recreational marijuana use, even in the privacy of the home, did not engage protected liberty or security interests as a matter of fundamental personal importance.

Assuming a harm principle formed part of fundamental justice, the court found a reasoned apprehension of non-trivial harm associated with marijuana use and upheld the prohibition except insofar as it failed to include a medical-use exemption.

Because the appellant was not within the class requiring that exemption and the repealed statute could still support prosecution, no stay of proceedings was warranted.

The appeal was dismissed.