Nick Devlin

Two separate appeals concerning the entrapment defence in dial-a-dope drug trafficking investigations.

In Williams' case, the trial judge found entrapment and stayed drug trafficking charges, but the Crown appealed.

In Ahmad's case, the trial judge rejected an entrapment application and convicted the accused.

The Court of Appeal held that police may provide opportunities to sell drugs to persons associated with phone lines reasonably suspected of being used in dial-a-dope operations, even without reasonable suspicion that those individuals are engaged in criminal activity, provided the police are conducting a bona fide inquiry.

The majority found no entrapment in either case.

The concurrence reached the same result but on the basis that police had reasonable suspicion that both accused were engaged in criminal activity.

Three appellants challenged mandatory minimum sentencing provisions for unauthorized production of marijuana under the Controlled Drugs and Substances Act as violating s. 12 of the Canadian Charter of Rights and Freedoms (cruel and unusual punishment).

The Court of Appeal found that certain mandatory minimum provisions were grossly disproportionate when applied to reasonably foreseeable circumstances, including cases involving minimal involvement, mistaken licensees, and situations lacking culpability regarding statutory aggravating factors.

The court struck down provisions imposing two and three-year mandatory minimums for production of more than 500 plants and the statutory aggravating factor provision.

The court reduced one appellant's sentence and dismissed appeals in the other cases.

The appellant appealed a conviction entered by Justice Chapin of the Ontario Court of Justice on July 15, 2014.

The appeal was allowed on consent.

The conviction was quashed and an acquittal was entered.

The appellant appealed her conviction from the Superior Court of Justice, arguing that the trial judge committed a palpable and overriding error by failing to make more detailed inquiries into the appellant's mental status while she was testifying.

The Court of Appeal rejected this submission, finding that the trial judge had made sufficient inquiries, the appellant had confirmed she was able to continue and had no difficulty with her memory, and defence counsel did not pursue the issue at trial.

No fresh evidence was produced to support the appellant's claim that her mental status would have interfered with her ability to testify.

The Crown brought a motion for directions seeking to abridge time, dismiss the appellant's appeal from conviction and sentence, and issue a warrant for the appellant's arrest.

The appellant had been convicted of conspiracy to commit fraud and falsely obtaining a refund or credit under the Income Tax Act, and was sentenced to 30 months imprisonment.

Released pending appeal with a surrender date of May 1, 2017, the appellant failed to surrender and lost contact with counsel.

The Court of Appeal granted all three orders, finding the appellant in breach of his recognizance and deeming his failure to surrender as an abandonment of his appeal.

The Supreme Court clarified bail principles under s. 515 of the Criminal Code, including strict adherence to the ladder principle and the limited role of cash bail.

It held the bail review judge erred by insisting on a combined cash-plus-surety release and by relying on speculation rather than evidence.

The Court allowed the appeal, reversed the constitutional declaration against s. 515(2)(e), and replaced the release order with a cash-only release on the same terms.

The appellant was a passenger in a vehicle stopped by police following a 911 call reporting two men with handguns.

The police conducted a high-risk takedown and arrested the appellant.

A search incident to arrest revealed marijuana and cash, and a subsequent strip search at the station revealed cocaine.

The appellant was convicted of possession of cocaine for the purpose of trafficking.

On appeal, he argued the police lacked objectively reasonable and probable grounds for the arrest, rendering the search unlawful under sections 8 and 9 of the Charter.

The Court of Appeal dismissed the appeal, finding the police had objectively reasonable and probable grounds to arrest based on the detailed and corroborated information from the 911 callers.

The appellant appealed his convictions for firearms and drug offences, as well as his sentence of eight years' imprisonment.

He argued the trial judge erred by failing to give a W.(D.) instruction regarding defence witnesses, by finding he lacked standing to challenge a search under section 8 of the Charter, and by denying enhanced pre-trial custody credit for harsh lockdown conditions.

The Court of Appeal dismissed the appeal, finding no W.(D.) instruction was required, the appellant was merely a privileged visitor with no reasonable expectation of privacy in the searched residence, and there was no evidence of adverse effects from the lockdown conditions to warrant enhanced credit.

The appellant sought a review of a single judge's order dismissing a motion for bail and refusing to expedite an appeal in a habeas corpus proceeding.

The appellant had since been released on bail, rendering the habeas corpus proceeding moot.

The appellant also sought to have outstanding criminal charges dismissed due to alleged improper solitary confinement, which the court noted was a matter for the trial court.

The Court of Appeal dismissed the motion to review and dismissed the underlying appeal as moot.

The appellant was convicted of firearms and drug trafficking offences following a police investigation involving wiretaps.

He appealed his convictions, arguing he should not have been named as an 'other known person' in the initial wiretap authorization, and appealed his sentence of five years and seven months on the basis of the totality principle.

The Court of Appeal dismissed the appeal, finding the low threshold for naming a known party in a wiretap authorization was met and the global sentence was reasonable.

The appellant was convicted of firearms and drug trafficking offences based largely on historical text messages obtained via a production order.

On appeal, he argued he had standing to challenge the order under section 8 of the Charter and that the police should have obtained a Part VI wiretap authorization instead of a production order.

The Court of Appeal dismissed the appeal, finding no error in the application judge's conclusion that the appellant lacked standing.

The Court further held that a Part VI authorization is prospective and not required for the search and seizure of historical text messages already in existence.

The appellant was convicted of firearms offences based on text messages found on his co-accused's cell phone.

The appellant challenged the search of the co-accused's phone under s. 8 of the Charter.

The application judge held that the appellant lacked standing because he had no reasonable expectation of privacy in text messages once they reached the recipient's phone.

The Court of Appeal dismissed the appeal, affirming that the sender loses control over the messages once received, thereby extinguishing any objectively reasonable expectation of privacy.

The accused, a political worker during the 2011 federal election, was convicted under the Canada Elections Act for his role in a 'robo-calls' scheme that directed voters to false polling stations.

He was sentenced to nine months' incarceration and 12 months' probation.

Both the accused and the Crown appealed the sentence.

The Court of Appeal dismissed both appeals, finding that the sentencing judge properly balanced the mitigating factors of the youthful first-time offender with the need for denunciation and deterrence for an unprecedented electoral fraud offence.

The Court declined the Crown's request to establish a sentencing range of two to five years for electoral fraud.

The appellant, Velle Chanmany, appealed his conviction for breaching a recognizance condition prohibiting cell phone possession.

The trial judge found a s. 8 Charter violation but admitted the evidence under s. 24(2).

On appeal, the court found no s. 8 or s. 9 Charter violation regarding arbitrary detention or unreasonable search for identification, but a serious s. 10(b) Charter violation for failing to immediately advise the appellant of his right to counsel upon investigative detention.

Applying the s. 24(2) Grant test, the court concluded that the deliberate nature of the Charter breach and its significant impact on the appellant's rights outweighed society's interest in the reliable evidence, leading to its exclusion.

The appeal was allowed, conviction set aside, and an acquittal entered.

The appellant was convicted of conspiracy to import cocaine, importing cocaine, and possession for the purpose of trafficking.

He appealed his convictions, arguing that the trial judge erred in dismissing his pre-trial motions alleging violations of his section 8 Charter rights.

The appellant challenged the search of a shipping container by customs officials, the issuance of a wiretap authorization, and the granting of search warrants.

The Court of Appeal dismissed the appeal, finding that the customs search was authorized under the Customs Act, the wiretap authorization met the investigative necessity requirement, and the conduct of the Justice of the Peace in issuing the search warrants did not create a reasonable apprehension of bias.

The appellants appealed their convictions for cocaine trafficking, arguing that the motion judge's conduct raised a reasonable apprehension of bias and that various production orders, warrants, and wiretap authorizations were invalid.

They also argued that the search of a Blackberry was unreasonable and that intercepted communications were protected by spousal communication privilege.

The Court of Appeal dismissed the appeal, finding no reasonable apprehension of bias, upholding the validity of the warrants and authorizations under the Garofoli standard, and concluding that spousal communication privilege does not extend to common-law spouses.

The appellants, charged with drug offences, sought disclosure of police policy directives regarding confidential informants during their preliminary inquiry.

After the Crown refused disclosure, the preliminary inquiry judge issued subpoenas duces tecum to the police chiefs.

A Superior Court judge quashed the subpoenas, finding the preliminary inquiry judge lacked jurisdiction to order what amounted to third-party disclosure.

The appellants appealed.

Although the appeal was moot because the appellants had since pleaded guilty, the Court of Appeal exercised its discretion to hear it.

The Court dismissed the appeal, holding that a preliminary inquiry judge cannot use a subpoena duces tecum to circumvent the jurisdictional limits on ordering production of third-party records, which must be sought before a trial judge under the O'Connor regime.

The appellant appealed a one-year sentence for possession of 97 grams of marijuana.

The Crown conceded the sentence was unfit as it was imposed due to a misapprehension of law that a mandatory minimum applied.

The Court of Appeal accepted a joint submission, allowed the appeal, and varied the sentence to 12 days imprisonment, equating to time served.

The appellant was convicted of three counts of knowingly making a false statement in a loan application under the Canada Small Business Financing Act and sentenced to a conditional sentence and a fine in lieu of forfeiture of $495,049.02.

He appealed the conviction, arguing it was unreasonable based on circumstantial evidence, and the sentence, arguing the fine exceeded the proceeds he personally benefited from.

The Court of Appeal dismissed the appeal, finding the circumstantial evidence clearly established the invoices were false and prepared by the appellant.

The court also upheld the fine, noting the appellant had possession and control of the loan proceeds and transferred them out of the country, making it unnecessary to prove he personally benefited on a dollar-for-dollar basis.

The applicant was found guilty of trafficking marijuana and sought a stay of his upcoming sentencing from the Court of Appeal, alleging a reasonable apprehension of bias by the trial judge.

The applicant requested that sentencing be stayed pending his conviction appeal, or alternatively, that he be sentenced by a different judge.

The Court of Appeal dismissed the motion, finding no basis to intervene prior to sentencing and holding that the proper course was for the applicant to raise the bias allegation with the trial judge.