Nathan J.S. Gorham

The appellants, David Brown and Daimian Johnson, appealed their sentences for drug trafficking offences, arguing that the sentencing judge failed to give sufficient credit for various mitigating factors, including multiple arrests, restrictive bail conditions, and cooperation with authorities.

The Court of Appeal dismissed both appeals, finding that the sentencing judge had properly identified and considered the mitigating factors and that the sentences imposed were reasonable and reflected the circumstances.

The applicant, Jeremy Bailey, sought bail pending appeal of his 2016 drug trafficking convictions, after his initial bail pending appeal was revoked due to new drug charges and breaches of conditions.

He argued that the subsequent stay of his 2018 charges and potential Charter violations related to his April 2020 arrest constituted a material change in circumstances.

The Court of Appeal denied the application, finding that despite these new developments, the lingering public safety concerns and the need to maintain public confidence in the administration of justice, particularly given his "flagrant" breaches of prior bail conditions, outweighed the reviewability interest.

During a trial for first degree murder, the defence applied to exclude utterances made by one co-accused to a friend, arguing they were more prejudicial than probative to the other co-accused.

The Crown also sought to admit text messages extracted from the co-accused's phone.

The court ruled that the utterances were admissible, as their probative value outweighed the prejudicial effect, and juries are presumed to follow instructions limiting the use of such evidence against a co-accused.

The court also ruled that the text messages were admissible, finding that the Crown had met the modest threshold for authentication under s. 31.1 of the Canada Evidence Act through direct and circumstantial evidence.

The Crown brought an application during a first-degree murder trial to admit several ante mortem statements made by the deceased under the principled exception to the hearsay rule.

The statements primarily concerned the accused's anger towards the deceased and the accused allegedly stealing the deceased's apartment keys.

The court applied the framework from Bradshaw and Khelawon to assess substantive reliability, using corroborative evidence where appropriate.

The court admitted the statements made to the deceased's sister, a close friend, the building superintendent, and the property manager, finding them reliable.

However, statements made to the deceased's boyfriend and another friend were excluded due to reliability concerns and unclear declarant identity.

In a joint trial for first-degree murder, the applicant co-accused brought a pre-trial motion to adduce evidence of the respondent co-accused's prior discreditable conduct through Crown witnesses.

The applicant sought to introduce this evidence to support a cutthroat defence and explain her state of mind.

The court reviewed various proposed items of evidence, ruling some admissible (such as prior violence towards the applicant and possession of a firearm) and others inadmissible (such as drug use, out-of-court statements, and speculative intimidation) based on relevance and the balancing of probative value against prejudicial effect.

The Crown applied to adduce evidence of prior discreditable conduct against the accused in a first-degree murder trial.

The proposed evidence included the accused's prior possession of a firearm, threats made against the deceased, and participation in a prior shooting incident.

The court found that the evidence was relevant and material to the issues of identity, animus, and motive.

Applying the framework for prior discreditable conduct, the court concluded that the probative value of the evidence outweighed its prejudicial effect, and ruled the evidence admissible with certain edits.

The appellant pleaded guilty to aggravated sexual assault after randomly attacking and raping a stranger walking home at night.

He was sentenced to 12 years' imprisonment.

On appeal, the appellant argued the sentencing judge misapplied Gladue principles by finding his Indigenous heritage moot due to the severity of the offence, and failed to apply principles of proportionality and restraint.

The Court of Appeal found that while the sentencing judge erred in his Gladue analysis, the 12-year sentence remained fit given the egregious nature of the random attack and the need to prioritize denunciation and deterrence.

The appellant, a psychologist, was convicted of three counts of sexual assault against three male patients during relaxation therapy sessions.

On appeal, he argued the trial judge erred by admitting formal admissions made by his counsel in prior disciplinary proceedings, by allowing the similar fact evidence of each complainant to be used across counts, and by failing to properly instruct the jury regarding potential collusion and adverse inferences.

The Court of Appeal dismissed the appeal, finding the disciplinary admissions were properly admitted as admissions against interest, the similar fact evidence was correctly weighed for probative value versus prejudicial effect, and the jury instructions were adequate.

The Crown appealed the acquittal of the respondent on one count of sexual assault.

The appeal raised three grounds: whether the trial judge erred in not finding sexual assault on the couch, whether the reasons were inadequate regarding conflicting evidence about pinning, and whether the trial judge relied on myths and stereotypes.

The court dismissed the appeal, finding that the trial judge's factual findings on consent were reasonable, his reasons were adequate, and he did not rely on impermissible stereotypes in his credibility assessment, having properly cautioned himself.

The applicant, Andre Tully, facing serious drug and gun charges with a significant criminal record, applied for bail after 18 months in custody, citing potential trial delays due to the COVID-19 pandemic.

The court addressed jurisdictional issues regarding the bail application, ultimately proceeding as either a s. 520 bail review or exercising ex officio powers under s. 515 of the Criminal Code.

The court found that the proposed strict house arrest bail plan with three sureties and electronic monitoring adequately addressed secondary ground concerns regarding public safety.

Furthermore, the court considered the COVID-19 pandemic as a significant factor under the tertiary ground, weighing the elevated risk of infection in custody, potential trial delays, and the public interest in reducing the remand population against the gravity of the offences.

Bail was granted with strict conditions.

The defendant, charged with first-degree murder, brought a pre-trial motion (voir dire) to exclude a statement given to police, arguing a violation of his s.10(b) Charter right to counsel.

The police denied his request to contact his stepmother to arrange counsel of choice, instead directing him to duty counsel.

The court found that the police officer's denial was a clear violation of the well-established duty to facilitate access to counsel, even through a third party, and that the defendant was not reasonably diligent in renewing his request because the officer's initial response was a clear "no." Applying the R. v. Grant factors under s.24(2) of the Charter, the court found the breach serious, the impact on the defendant's Charter-protected interests significant (as it affected his ability to make an informed choice with trusted counsel), and the societal interest in adjudication on the merits did not outweigh the breach given the statement's questionable necessity.

Consequently, the January 25, 2018 statement was excluded.

Sarai Lopez Iglesias, charged with first-degree murder, applied for bail.

The Crown opposed, citing the strength of the case, the gravity of the offence, and concerns on primary and secondary grounds.

The applicant proposed a robust bail plan including house arrest with sureties (her mother and step-father), electronic monitoring, and a substantial pledge.

The court, while acknowledging the strong Crown case and serious nature of the charge, found that the proposed plan, particularly the full-time supervision by the mother, was sufficient to address the concerns on the primary, secondary, and tertiary grounds, and granted bail.

The appellant appealed his sentence imposed by the Ontario Court of Justice, arguing that the sentencing judge erred by refusing to grant enhanced credit for 89 days spent in lockdown during his 528 days of pretrial custody.

The appellant relied on the principle from R. v. Duncan that particularly harsh presentence incarceration conditions can provide mitigation beyond the 1.5 credit under s. 719(3.1) of the Criminal Code.

The Court of Appeal found no error in principle and upheld the sentencing judge's discretionary finding that the appellant did not experience particularly harsh treatment as required by Duncan.

The appellant was convicted of attempted murder following a shooting incident in which he fired multiple shots at the victim.

The appellant appealed both conviction and sentence.

On the conviction appeal, the appellant challenged the trial judge's instructions regarding the use of evidence of after-the-fact conduct, arguing the judge failed to adequately instruct the jury on permitted and prohibited uses of such evidence.

On the sentence appeal, the appellant argued the trial judge failed to apply the fundamental principle of proportionality and improperly considered intent to kill as an aggravating factor.

The Court of Appeal dismissed both appeals, finding that despite some deficiencies in the jury instructions, no substantial wrong or miscarriage of justice occurred, and that the sentence of 11 years imprisonment was fit.

The appellant appealed a conviction entered by the trial judge, raising two grounds of appeal: (1) that the trial judge misused evidence of a prohibition order against the appellant; and (2) that the trial judge improperly enhanced the complainant's credibility based on testimony that was not always favourable to her, when such matters were provable by text messages.

The Court of Appeal dismissed both grounds of appeal, finding that the trial judge properly instructed herself on bad character evidence and that it was open to the trial judge to consider the complainant's acknowledgements regardless of their form.

The conviction appeal was dismissed, and the sentence appeal was dismissed except for the setting aside of the victim fine surcharge.

The appellant appealed her conviction on three counts, seeking to set aside her guilty plea.

The trial judge conducted no plea inquiry and did not read in the facts.

The police synopsis was filed as an exhibit with defence counsel indicating the appellant had reviewed it.

At sentencing, a pre-sentence report revealed the appellant disputed her guilt and suffered from a mental disorder.

Although the sentencing judge obtained verbal acknowledgments from the appellant regarding the facts and acceptance of responsibility, the judge expressed reservations about the genuineness of the appellant's acceptance of responsibility.

The Court of Appeal found the plea was not unequivocal due to the absence of a proper plea inquiry, the mental health issues at play, and the ambiguity regarding what the appellant was accepting responsibility for.

The conviction was set aside and a new trial was ordered.

B.Z. was found guilty by a jury of sexual assault and unlawful confinement.

The court considered aggravating factors, including the violent nature of the assault, non-consensual vaginal penetration, and the victim's emotional trauma, and mitigating factors, such as the offender's lack of prior criminal record and educational background.

The court rejected the defense's submission for a lower sentence and the request to stay the forcible confinement conviction based on the Kienapple principle, finding the acts distinct.

A sentence of 42 months concurrent for both convictions was imposed, along with mandatory ancillary orders, but restitution was denied due to insufficient evidence of the precise amount.

The accused, Andrew Knight, was charged with possessing cocaine and heroin for the purpose of trafficking, found hidden in a car registered to him but also used by his paramour.

The Crown relied on circumstantial evidence to prove knowledge of the drugs.

The court found Mr. Knight's testimony regarding car ownership and his relationship suspicious but accepted that his paramour also used the car.

Applying principles of circumstantial evidence, the court determined that while an inference of guilt was strong, it was not the *only* reasonable inference, as there remained a reasonable possibility that the paramour placed the drugs without Mr. Knight's knowledge.

Consequently, Mr. Knight was found not guilty.

During a trial for second degree murder, the accused brought a Corbett application to prevent the Crown from cross-examining him on his criminal record should he choose to testify.

The accused's record included dated convictions for assault, weapons offences, and property offences.

The court applied the Corbett factors and concluded that the probative value of the convictions was outweighed by their prejudicial effect, particularly given their age and the risk of propensity reasoning.

The application was granted, and the Crown was prohibited from cross-examining the accused on his criminal record.

In a second-degree murder trial, the Crown sought to admit evidence of the accused's prior discreditable conduct, including two knife confrontations with co-tenants and landlord complaints leading to an eviction notice.

The accused conceded the admissibility of a recent knife confrontation with the deceased but opposed other incidents.

The court ruled that an earlier knife incident with other co-tenants (McDonald and Augustine) was inadmissible due to its minimal probative value, stemming from inconsistent witness testimony, and high prejudicial effect, including risks of moral and reasoning prejudice.

Similarly, evidence of general complaints received by the landlord prior to the immediate pre-stabbing events was deemed inadmissible for similar reasons, while evidence related to the immediate pre-stabbing conflict and eviction notice was allowed.