Nicholas E. Devlin

The Canadian Broadcasting Corporation sought to vary a sealing order made at trial to gain access to DVD audio recordings of an undercover operative for journalistic purposes.

The trial judge had sealed the recordings to protect the identity of the undercover agent.

The Crown opposed the motion, arguing that the circumstances justifying the original sealing order remained unchanged.

The appellate court applied the Dagenais/Mentuck test and found that the sealing order was no longer necessary because reasonable alternative measures—specifically, voice and facial alterations—could adequately protect the operative's identity while allowing media access.

The court granted the motion subject to conditions regarding alteration of the recordings.

The accused appealed convictions for firearms and drug trafficking offences, challenging production orders used to obtain historical text messages from a telecommunications provider.

The Court held the accused had standing under s. 8 of the Charter because he had a reasonable expectation of privacy in the electronic conversation records.

The majority concluded that seizure of already sent and received messages from provider storage was lawfully authorized by the production order regime and did not require a Part VI wiretap authorization.

A dissent would have treated acquisition of those messages as requiring Part VI authorization and would have excluded the evidence under s. 24(2).

The appellant was convicted of multiple counts of possession for the purpose of trafficking and possession of proceeds of crime after police discovered drugs and cash following an anonymous call reporting a break-in at his residence.

The appellant sought to exclude the evidence, alleging that police had staged the break-in and made the anonymous call in breach of his Charter rights.

The pre-trial judge dismissed the application, finding the appellant had not met the burden of proving the illegality of the warrantless entry.

The Court of Appeal allowed the appeal on two grounds: (1) the trial judge erred in finding he lacked authority to permit the defence to record testimony with a high-quality microphone for voice identification analysis; and (2) the trial judge erred in placing the burden of proof on the appellant rather than the Crown to justify the warrantless entry.

The appellant appealed his conviction and sentence for conspiracy to traffic in GHB.

He argued the trial judge erred in assessing the credibility of a police agent, in applying a previous binding decision, and in treating the nature of GHB as a date-rape drug as an aggravating factor on sentencing.

The Court of Appeal dismissed both the conviction and sentence appeals, finding no errors in the trial judge's credibility assessment, legal analysis, or sentencing.

The Crown appealed the accused's acquittal on drug and weapons charges after the trial judge excluded evidence seized from his residence under s. 24(2) of the Charter.

The police obtained search warrants for the accused's restaurant and residence based on a confidential informant's tip.

The Court of Appeal found the information to obtain (ITO) for the restaurant was sufficient, but the ITO for the residence lacked detail and failed to indicate the informant's source of knowledge.

The Court upheld the trial judge's finding that the search of the residence violated s. 8 of the Charter and that the evidence should be excluded under s. 24(2), noting the misleading and careless drafting of the ITO.

The Crown appealed the accused's acquittal on drug and weapons charges, which followed the trial judge's exclusion of evidence seized from the accused's residence.

The police had obtained search warrants for the accused's restaurant and residence based primarily on information from a confidential informant.

The Court of Appeal found that while the warrant for the restaurant was validly issued, the information supporting the residence warrant was insufficient, as it lacked details about the informant's source of knowledge regarding drugs in the home.

The Court concluded that the search of the residence violated section 8 of the Charter.

Applying the Grant framework, the Court upheld the exclusion of the evidence under section 24(2), noting that the police conduct in drafting the Information to Obtain was careless and misleading, rendering the breach serious.

The appeal was dismissed.

The Crown appealed from a sentencing decision declining to impose a $4.7 million fine on an offender convicted of customs fraud involving the same amount.

The Supreme Court held that under s. 734(2) of the Criminal Code, a fine may be imposed only where the court is satisfied on a balance of probabilities that the offender is able to pay it.

Past receipt of illegally obtained funds may support an inference of present ability to pay, but it does not shift a formal evidentiary or persuasive burden to the offender, nor does it compel the sentencing judge to draw that inference.

On the record, the sentencing judge made no reviewable error in concluding she was not satisfied that the offender could pay the fine.

The Crown appealed a decision of the Ontario Superior Court of Justice that struck down the section 38 scheme of the Canada Evidence Act as unconstitutional.

The scheme grants the Federal Court jurisdiction to determine questions of disclosure of information pertaining to international relations, national defence, or national security.

The Supreme Court of Canada allowed the appeal, holding that the scheme does not violate section 96 of the Constitution Act, 1867 or section 7 of the Charter.

The Court found that the scheme preserves the full authority and independence of the judge presiding over the criminal trial to do justice between the parties, including entering a stay of proceedings if necessary to protect the accused's right to a fair trial.

The appellant challenged terrorism convictions and sentence arising from his participation in and support of a group engaged in violent jihad, including training, financing, transporting supplies, and building remote detonator devices.

The court held that the definition of "terrorist activity" in s. 83.01(1)(b) of the Criminal Code did not infringe s. 2(b) of the Charter, rejected the trial judge's "chilling effect" analysis, and upheld the convictions.

The court also held that the armed conflict exception was unavailable and that judicial notice of basic facts concerning Afghanistan was proper.

On the Crown's cross-appeal, the court found the total sentence manifestly unfit and imposed life imprisonment with ten years before eligibility for full parole.

The appellant, the mastermind of a terrorist bomb plot targeting locations in Toronto, pleaded guilty to terrorism offences and was sentenced to life imprisonment with parole ineligibility of 10 years.

He appealed the sentence, arguing the judge failed to give sufficient weight to mitigating factors and that a fixed term of 18 to 20 years was appropriate.

The Court of Appeal dismissed the appeal, holding that a life sentence was warranted given the catastrophic potential of the plot and the appellant's guarded prospects for rehabilitation.

The Crown appealed the 12-year sentence imposed on the respondent for his role in a terrorist bomb plot targeting locations in Toronto.

The respondent had pleaded guilty to doing anything with intent to cause an explosion for the benefit of a terrorist group.

The Court of Appeal found the sentencing judge over-emphasized mitigating factors and under-emphasized the enormity of the crime.

The effective sentence was increased from 12 to 18 years, and an order was made requiring the respondent to serve one half of his sentence before being eligible for full parole.

The respondent pleaded guilty to participating in a terrorist plot to detonate bombs at the Toronto Stock Exchange, CSIS Headquarters, and a military base.

The sentencing judge imposed a 14-year sentence (7 years after pre-trial custody credit) and declined to increase parole ineligibility, emphasizing the respondent's youth, lack of criminal record, and rehabilitative prospects.

The Crown appealed the sentence.

The Court of Appeal allowed the appeal, holding that the sentencing judge gave inadequate weight to the enormity of the planned mass murder and the unique nature of terrorism offences.

The sentence was increased to 20 years (13 years after credit), and the respondent was ordered to serve one-half of his sentence before being eligible for parole.

The appellant appealed his convictions, arguing that the conduct of a police officer constituted entrapment.

The Supreme Court of Canada dismissed the appeal, agreeing with the Court of Appeal that the brief conversation between the police officer and the appellant did not ground a finding of entrapment.

The Court noted that the appellant was not induced to commit a crime but was already engaged in criminal activities when he allowed the officer to witness a drug transaction.

The appellants were charged with offences under the Fisheries Act for allegedly destroying fish habitat.

The Crown elected to proceed summarily, and the appellants were convicted by a justice of the peace.

They brought an application for prohibition challenging the justice's jurisdiction to try federal offences, which was dismissed by the Superior Court of Justice.

On appeal, the Court of Appeal affirmed that justices of the peace have jurisdiction to try summary conviction proceedings involving federal legislation pursuant to the Criminal Code and the Justices of the Peace Act.

The Crown appealed the conditional sentence imposed on the respondent for a cocaine-related offence, as well as the trial judge's failure to make mandatory DNA and weapons prohibition orders.

The respondent conceded the error regarding the orders.

The Court of Appeal noted that the conditional sentence was manifestly unfit given the amount of cocaine involved.

However, based on compelling fresh evidence regarding the deteriorating health of the respondent and the terminal illness of his son, the court declined to alter the custodial sentence.

The appeal was allowed only to impose the DNA and s. 109 orders.

The appellant was convicted of possession of cocaine for the purpose of trafficking after police found drugs on his person and in his room while executing a search warrant.

On appeal, he argued the search warrant was invalid due to false information in the ITO and that the trial judge improperly instructed the jury regarding his failure to formally complain about alleged police brutality.

The Court of Appeal dismissed the appeal, finding the trial judge made no errors in upholding the warrant's validity or in her jury instructions.

The applicant pleaded guilty to drug and weapons offences and received a lenient sentence based on a joint submission.

Shortly after, the band council on the reserve where he lived passed a resolution banishing him due to his criminal record.

The applicant sought an extension of time to appeal his sentence, hoping a conditional discharge might prompt the band council to reconsider.

The Court of Appeal granted the extension, finding that the unexpected and drastic collateral consequence of banishment justified allowing the late appeal.

The appellant was charged with aiding and abetting Russian nationals to enter Canada without proper documentation.

After a 45-day trial, the trial judge declared a mistrial on his own motion, citing a potential apprehension of bias because he had previously written reference letters for the court reporter, whom the self-represented accused had called as a witness.

The Crown successfully applied to quash the mistrial order.

The accused appealed the quashing order.

The Court of Appeal dismissed the appeal, finding no basis for an apprehension of bias and emphasizing that a mistrial should only be granted as a last resort.

The appellant appealed his sentence, challenging the constitutionality of the fine in lieu of forfeiture provisions under s. 462.37 of the Criminal Code.

The trial judge had imposed a fine of $119,700 with five years to pay and a two-year sentence in default.

The Court of Appeal declined to determine the constitutional issue, finding that the in-person appeal lacked the necessary factual foundation to assess whether the fine was grossly disproportionate.

Leave to appeal the sentence was refused.

The appellant appealed her conviction for possession for the purpose of trafficking, arguing the trial judge misapprehended the evidence and the expert's opinion.

The Court of Appeal dismissed the appeal, finding the trial judge properly rejected the appellant's improbable and inconsistent testimony and correctly assessed the factors proving the purpose of trafficking.