Paul Alexander

The appellants, Andrew Smoke and Eric Smoke, appealed their convictions for the second degree murder of Andrew “Scruff” Davis.

The Court of Appeal for Ontario dismissed both appeals, finding no error in the trial judge’s instructions to the jury regarding aiding and abetting, after-the-fact conduct, and the use of statements attributed to Andrew.

The court also found the verdict against Eric was not unreasonable, given the circumstantial evidence, including DNA and video evidence.

The Court of Appeal for Ontario considered whether a search warrant was validly issued in a drug trafficking case.

The appellant argued that the Information to Obtain (ITO) was misleading and incomplete, and that the reviewing judge improperly relied on evidence not before the issuing judge.

The Court found a breach of section 8 of the Charter but held that the evidence should not be excluded under section 24(2), as the breach was not serious, the police acted in good faith, and the evidence was critical to the Crown's case.

The appeal was dismissed.

The Court of Appeal for Ontario dismissed the Crown's appeal from a stay of proceedings granted due to a breach of the respondents’ rights under section 11(b) of the Charter.

The court agreed with the trial judge that last-minute offering of earlier trial dates did not require defence counsel to be available, nor did it make any resulting delay attributable to the defence.

The court also found the case was not sufficiently complex to justify an exception to the Jordan framework, and the presence of a Garofoli application did not elevate the case’s complexity.

During a jury trial for illegal possession of a handgun, the defence sought to introduce text messages to impeach the credibility of a key Crown witness, Veronica Sinclair.

The defence alleged Sinclair had animus towards the accused's family due to her disapproval of a romantic relationship between her daughter and the accused's sister.

Sinclair denied this during cross-examination.

The court ruled the text messages inadmissible, finding them to be collateral evidence and noting the defence's failure to confront the witness with the messages during cross-examination, as well as a lack of due diligence in their late presentation.

Bronson Lake pleaded guilty to second-degree murder of his girlfriend, Kim Gagne.

The court determined the period of parole ineligibility.

The Crown sought 16 years, while the defence argued for a lower end of the range, emphasizing the guilty plea.

The court considered aggravating factors, including the brutality of the domestic violence and lack of clear mental illness, and mitigating factors, such as the guilty plea and lack of prior criminal record.

The judge imposed a life sentence with 14 years of parole ineligibility, finding the brutality of the murder warranted a strong denunciatory sentence.

The applicant applied for certiorari to quash his committal for trial on a charge of first degree murder and substitute a charge of second degree murder.

He argued there was no evidence of forcible confinement or that he was a party to it.

The Superior Court of Justice dismissed the application, finding that the preliminary inquiry judge made no jurisdictional error.

There was some evidence upon which a properly instructed jury could find that the victim was forcibly confined by an unidentified man acting in concert with the applicant during the shooting.

This is a sentencing decision following convictions for impaired driving and sexual assault.

The offender, Hurshed Tursunov, had a prior impaired driving conviction.

The sexual assault involved a paramedic providing medical assistance in an ambulance.

The court considered aggravating factors, including the prior conviction, the collision, flight from the scene, lack of insight, and the vulnerability of the victim.

Mitigating factors included the financial impact of incarceration on the offender's family and the conditions of serving time during the pandemic.

The court balanced principles of denunciation, deterrence, proportionality, and restraint, imposing a total custodial sentence of 75 days, along with a probation order, driving prohibition, weapons prohibition, Sex Offender Information Registration Act (SOIRA) order, and DNA order.

This is an application for bail pending appeal of a prison sentence for manslaughter.

The applicant, who pleaded guilty to manslaughter after initially being charged with murder, was sentenced to 51 months' imprisonment for killing his friend with a machine gun.

The Crown conceded leave to appeal and that the applicant was not a flight risk.

However, the court dismissed the application for bail, finding that the appeal lacked sufficient merit to cause unnecessary hardship, and that the applicant's detention was necessary in the public interest given the aggravating features of the offence and the slim chances of a substantial sentence reduction on appeal.

Leave to appeal the sentence was granted.

The offender pleaded guilty to aggravated assault after attacking a building superintendent with a knife.

The court accepted a joint submission for a four-year sentence, taking into account the offender's schizophrenia, guilty plea, and harsh conditions of pre-sentence custody during the COVID-19 pandemic.

Applying enhanced credit for time served, the court suspended the passing of sentence and imposed three years of probation.

The appellants, Alton Grant and Shaqwan Kawano, appealed their first-degree murder convictions.

The Court of Appeal found that the trial judge erred in instructing the jury on how to assess exculpatory eyewitness identification evidence, specifically regarding a key witness whose testimony arguably contradicted the Crown's theory of identity.

This error was deemed serious and not curable.

The court dismissed Grant's Charter s. 11(b) application for unreasonable delay and found the verdict against him was not unreasonable.

However, due to the misdirection on eyewitness identification, the appeals were allowed, and new trials were ordered for both appellants.

The defendant, Hurshed Tursunov, was charged with impaired driving and sexual assault.

The charges arose from a collision with a TTC bus, subsequent observations of intoxication by a civilian witness and paramedics, and an alleged sexual assault on a paramedic.

The court found the defendant guilty on both counts, relying on the civilian witness's observations and the defendant's admission of being drunk, corroborated by professional witnesses' observations and a booking video.

For the sexual assault, the court found the actus reus and mens rea proven beyond a reasonable doubt, noting the defendant's actions and subsequent demeanor.

This criminal trial addressed charges of impaired driving and refusal to provide a breath sample, alongside a Charter s. 9 application alleging arbitrary detention due to an 'over-hold' in police custody.

The court found the defendant was severely intoxicated and that the detention, lasting nearly six hours, was justified for public safety and was continuously monitored.

The s. 9 Charter application was dismissed, and the defendant was found guilty of both impaired driving and refusal to provide a breath sample.

This ruling concerns a voir dire to determine the competence of a proposed Uzbek language interpreter for the defendant's criminal trial on charges of impaired driving and sexual assault.

The defendant required an Uzbek interpreter, and previous attempts to qualify one were unsuccessful.

The court assessed the proposed interpreter, Mr. Bakhtier Shakhnazarov, against the criteria for competent interpretation, including proficiency, type of interpretation, level of need, length and type of proceeding, complexity, and demonstrated ability.

Despite the defendant's counsel raising concerns about formal accreditation and criminal trial experience, the court found Mr. Shakhnazarov competent, emphasizing that accreditation is not dispositive and his extensive experience and education in legal contexts demonstrated the necessary proficiency.

The offender pleaded guilty to possession of child pornography after police found over 18,000 images and 300 videos on his devices.

The Crown sought 27 months in custody, while the defence sought 15 to 16 months.

The court weighed the significant size of the collection and the prolonged period of offending against the offender's guilty plea, lack of criminal record, pro-social background, and low risk of re-offending.

Emphasizing denunciation and deterrence as paramount for offences involving the abuse of children, the court sentenced the offender to two years in custody along with ancillary orders.

The applicant, charged with possession of a loaded handgun, brought a Charter application to exclude evidence and stay proceedings, alleging breaches of ss. 7, 8, 9, 10(b), and 12.

The court found the arrest and subsequent search of the vehicle were lawful based on a reliable 911 call.

While the court found a minor breach of the implementational aspect of s. 10(b) due to a 17-minute delay in contacting duty counsel, it declined to exclude the firearm or the applicant's spontaneous utterances under s. 24(2), concluding the breach was technical and did not warrant exclusion.

The accused, D.B., was charged with sexually assaulting N.S. The central issue at trial was whether D.B. had an honest but mistaken belief that N.S. consented to penetration.

The court considered the couple's established pattern of non-verbally communicating consent after an initial verbal refusal, particularly N.S.'s past practice of signaling readiness through body language after a period of comfort.

The court found D.B.'s version of events, including N.S. repeatedly pressing her vagina against his erection, to be credible and consistent with their established customs.

Doubts were raised about the reliability of N.S.'s testimony regarding the critical moments preceding penetration due to inconsistencies with prior statements and her initial post-incident uncertainty.

The court concluded that D.B. took reasonable steps to ascertain consent given the specific circumstances and their relationship history.

As the Crown failed to prove the mens rea element beyond a reasonable doubt, D.B. was found not guilty of sexual assault.

The accused was charged with sexual assault.

He brought a pre-trial motion under section 276 of the Criminal Code seeking to introduce evidence of prior sexual activity and discussions with the complainant regarding consent and her history of sexual trauma and PTSD.

The Crown and complainant opposed admission, arguing there was no air of reality to the defence of honest but mistaken belief in communicated consent and that the evidence was unduly prejudicial.

The court found the evidence admissible, holding that the accused could rely on evidence of an established pattern of non-verbal communication of consent between the parties to support his defence, provided the evidence met the statutory requirements under section 276(2).

The Crown appealed an acquittal for impaired driving and "Over 80" charges.

The trial judge found a s. 8 Charter breach, excluded evidence, and acquitted the respondent, giving inadequate reasons and failing to apply s. 24(2) Charter principles.

The Superior Court allowed the appeal, finding the trial judge's reasons for breach and exclusion of evidence to be insufficient and legally erroneous.

A new trial was ordered before a different jurist, rather than entering a conviction, due to the lack of clarity in the trial judge's factual findings.

The applicant, Birhan Imam, sought an order of certiorari to quash a committal for trial on a charge of attempted murder, alleging the preliminary inquiry judge applied an erroneous legal test for mens rea.

The Superior Court reviewed the preliminary inquiry judge's reasons, finding that while a specific passage might appear ambiguous, when read in totality, the judge correctly identified and applied the "intention to kill" mens rea for attempted murder as established in R. v. Ancio.

The application for certiorari was dismissed.

The court also held that even if there had been a jurisdictional error, the committal would have been inevitable given the strong evidence of intent to kill, and thus, prerogative relief would have been declined due to lack of prejudice.

Four accused were convicted of drug trafficking offences committed for the benefit of a criminal organization (the Five Point Generals), conspiracy to traffic controlled substances, and firearms offences following a three-month jury trial based largely on intercepted communications.

The appellants challenged their convictions on five grounds: jury selection procedures, cross-examination limitations of the Crown's expert witness, exclusion of defence expert evidence, admission of extrinsic misconduct evidence, and alleged imbalance in the jury charge.

They also appealed their sentences, primarily challenging the credit awarded for pre-sentence custody.

The Court of Appeal dismissed all conviction appeals and three of four sentence appeals, allowing only Shane Evans' sentence appeal based on inadequate credit for pre-sentence custody.