Ricardo Golec

The Court of Appeal for Ontario dismissed Hunter Smith’s appeal from his conviction and sentence for aggravated assault arising from a nightclub incident.

The court found no merit in the arguments that the trial judge misapprehended the evidence, failed to consider all relevant evidence, or erred in sentencing.

The court addressed the risk of cross-racial misidentification but found it was not a serious danger in this case.

The five-month custodial sentence was upheld as fit and principled.

This sentencing decision addresses the appropriate penalty for Taymoor Pasha, who pleaded guilty to possessing over 15 kilograms of fentanyl for the purpose of trafficking, contrary to s. 5(2) of the Controlled Drugs and Substances Act.

The court reviews the aggravating and mitigating factors, the local context of the opioid crisis in London, Ontario, and the relevant case law, ultimately endorsing a joint submission for a 16½-year sentence (after credit for harsh pre-trial custody and pre-sentence custody).

The decision emphasizes the need for denunciation and deterrence in the face of the ongoing fentanyl crisis and the unprecedented scale of the offence.

This decision concerns the sentencing of Carlos Guerra Guerra for second degree murder, assault with a weapon, obstructing justice, and intimidation of a justice participant, arising from a fatal shooting at a bush party in London, Ontario.

The court reviews the facts, aggravating and mitigating factors, and relevant case law, ultimately imposing a life sentence with 16 years of parole ineligibility, plus additional concurrent and consecutive sentences for the other offences.

The decision provides a detailed analysis of the application of sentencing principles, the impact of gun violence, and the effect of harsh pre-trial custody conditions.

The Court of Appeal for Ontario dismissed the Crown’s appeal from a stay of drug charges entered under section 11(b) of the Charter.

The Crown argued that the trial judge should have deducted 92 days as a discrete exceptional circumstance due to a co-accused’s discharge of counsel.

The Court found no error in the trial judge’s approach or conclusion, holding that the Crown could have proceeded separately against the respondent, as it had with other co-accused.

The stay was upheld.

The Crown appealed a conditional sentence of two years less a day imposed on the respondent for possession of a loaded prohibited firearm.

The respondent had discharged the firearm during a shootout in a public parking lot.

The Court of Appeal found that the sentencing judge erred in principle by prioritizing rehabilitation over denunciation and deterrence, and that the sentence was demonstrably unfit.

However, the majority dismissed the appeal and declined to incarcerate the respondent, citing his significant rehabilitative progress and the time already served under the conditional sentence.

The appellant appealed his convictions for production and possession of methamphetamine for the purpose of trafficking, arguing the trial judge erred in failing to exclude evidence under s. 24(2) of the Charter.

The appellant claimed his ss. 10(a) and 10(b) rights were breached due to a delay in providing a Vietnamese interpreter upon his arrest.

The Court of Appeal found no error in the trial judge's application of the Grant factors, noting the delay was an isolated mistake, the appellant was not mistreated, and the evidence was obtained pursuant to a valid search warrant issued prior to the arrest.

The conviction appeal was dismissed, and the sentence appeal was abandoned.

The appellant, Oleksandr Ostashkov, appealed his conviction and sentence after pleading guilty to breaking and entering and possession of stolen property.

He sought to strike his guilty plea, arguing it was involuntary due to parental pressure.

He also appealed his sentence, claiming it was unduly harsh, particularly the restitution order.

The Court of Appeal found no error in the application judge's finding that the plea was voluntary, noting that while parental pressure was a factor, it did not negate his volitional decision, which was also influenced by new incriminating evidence.

The court also found no error in the sentence imposed, determining it was neither demonstrably unfit nor based on an error in principle, and upheld the restitution order.

Both the conviction appeal and the sentence appeal were dismissed.

The defendant, a young person, was charged with attempted murder.

The court first addressed a Charter application for a stay of proceedings, brought by the defence, alleging lost evidence due to the Crown's failure to call the complainant and another witness.

The court dismissed the application, ruling that an absent witness's potential testimony does not constitute "lost evidence" in the same manner as tangible items, and the state has no obligation to preserve witness availability.

Proceeding to the trial on the merits, the court relied on extensive video evidence and witness testimony to establish the defendant's identity as one of the assailants.

While the Crown proved the defendant stabbed the complainant, the court found that the specific intent to kill, required for attempted murder, was not proven beyond a reasonable doubt.

Consequently, the defendant was acquitted of attempted murder but found guilty of the lesser included offence of assault causing bodily harm.

This is a Crown appeal from sentence.

The respondent was convicted of possession of a loaded prohibited firearm and two counts of breaching weapons prohibition orders.

The sentencing judge imposed a six-year sentence, with concurrent sentences for the breach offences, and failed to impose a mandatory lifetime firearm prohibition.

The Crown argued the sentence was unfit, concurrent sentences were an error, and aggravating factors were not given effect.

The Court of Appeal granted leave, imposed the mandatory lifetime firearm prohibition, and ordered the sentences for the breach offences to be served consecutively to each other and to the firearm offence sentence, correcting errors in principle.

The applicant brought a pre-trial Charter application alleging that police unlawfully intercepted calls between him and his lawyers during a wiretap investigation, violating section 8 of the Charter.

The court found that while two of the three impugned calls did not violate the authorization's minimization terms, one call to the applicant's lawyer was unlawfully intercepted.

However, the court declined to stay the proceedings or exclude the wiretap evidence under sections 24(1) or 24(2) of the Charter, finding the breach was isolated and did not impact trial fairness.

Instead, the court ordered a mandatory injunction requiring the police to implement new protocols for blocking lawyers' phone numbers upon a target's arrest.

The appellants appealed their guilty pleas and suspended sentences for assault, claiming ineffective assistance of counsel.

They sought to introduce fresh evidence demonstrating they were misinformed by both their criminal and immigration lawyers regarding the immigration consequences of their pleas, specifically that they would face deportation.

The Superior Court of Justice admitted the fresh evidence, finding the pleas were uninformed and non-consensual.

The appeals were allowed, the convictions set aside, and a new trial ordered.

The appellants, Ting Lin and Shuhao Shi, appealed their convictions for unlawful possession of a Class A precursor (GBL) for producing a controlled substance (GHB) and unlawfully possessing ketamine for trafficking.

They also sought leave to appeal their sentences of six years imprisonment.

The primary ground of appeal was the trial judge's alleged error in failing to instruct the jury on the defence of honest but mistaken belief that their activities were authorized.

The Court of Appeal dismissed the appeals, holding that the Crown is not required to prove an accused's knowledge that their possession was unauthorized, as this would amount to proving knowledge of the law, contrary to s. 19 of the Criminal Code and s. 48(2) of the Controlled Drugs and Substances Act.

The court found no air of reality to the mistake of fact defence based on the evidence.

Leave to appeal sentences was granted, but the appeals were dismissed as the sentences were not demonstrably unfit.

The Crown appealed a youth sentence, arguing that the trial judge misinterpreted s. 39(1)(d) of the Youth Criminal Justice Act by not imposing a custodial sentence despite finding it an 'exceptional case'.

The Court of Appeal dismissed the appeal, clarifying that an 'exceptional case' determination under s. 39(1)(d) does not automatically mandate a custodial sentence if the sentence imposed adequately reflects societal values and the YCJA's principles.

The appellant appealed his convictions for assault, assault with a weapon, forcible confinement, and criminal harassment against his former partner.

At trial, the appellant and the complainant gave conflicting evidence, making credibility the central issue.

The trial judge convicted the appellant but failed to make specific findings of fact, explain why he accepted the complainant's evidence despite inconsistencies, or address the appellant's credibility.

The Superior Court of Justice allowed the appeal, finding the trial judge's reasons insufficient to permit meaningful appellate review, and ordered a new trial.

The accused brought a Charter application to exclude evidence seized from his vehicle, arguing a six-hour delay in accessing counsel violated his s. 10(b) rights.

The court found the police violated the accused's s. 10(b) rights due to inadequate resource allocation, which constituted a serious institutional disregard for Charter rights.

The evidence was found to be temporally and contextually connected to the breach.

Applying the *Grant* factors, the court concluded that admitting the evidence would bring the administration of justice into disrepute, thus excluding the heroin and other items seized from the vehicle.

The accused, Sabrullah Khan, was charged with trafficking heroin.

The Crown's case was entirely circumstantial, relying on the transfer of a package containing 991.36 grams of heroin to an individual (Mr. Rilling) whom Khan did not know, in suspicious circumstances.

The central issue was whether the Crown proved beyond a reasonable doubt that Khan knew the package contained heroin or was wilfully blind to its contents.

The court considered the totality of circumstantial evidence, including the absence of direct evidence and the evidence that Mr. Hatemi (the drug network leader) often employed "blind couriers." The court found that while an inference of knowledge was reasonable, it was not the *only* reasonable inference, as it was also plausible that Khan was an unwitting courier.

Consequently, the Crown failed to prove knowledge or wilful blindness beyond a reasonable doubt, and Khan was found not guilty.

The appellant appealed both conviction and sentence following his guilty plea to 12 counts of fraud.

The appellant sought to set aside his guilty pleas on grounds of involuntariness and inadequate legal advice, and challenged the trial judge's finding of unreasonable delay under s. 11(b) of the Charter.

The Court of Appeal dismissed both appeals, finding the guilty pleas were voluntary and informed, and that the appellant was foreclosed from advancing the s. 11(b) argument once the guilty pleas were upheld.

On sentencing, the court upheld an eight-year federal penitentiary sentence, a restitution order of $6,261,632, and a fine of $6,261,632 in lieu of forfeiture, finding the sentence appropriate given the large-scale, sophisticated Ponzi-like fraud scheme, prior fraud-related criminal record, and significant aggravating factors.

The appellant, Althea Reyes, appealed her conviction for failing to appear before court.

At trial, she conceded the actus reus of the charge and argued an honest but mistaken belief regarding her attendance.

On appeal, she sought to raise a new argument that she was not required to attend court, which was contrary to her trial position.

The court dismissed the appeal, finding that the appellant failed to meet the preconditions for raising a new issue on appeal, including the sufficiency of the evidentiary record and the absence of tactical reasons for not raising it at trial.

The court also declined to admit fresh evidence (transcripts from prior proceedings) as the Palmer test for admissibility was not satisfied.

The appellant appealed his convictions for multiple drug trafficking offences and sought leave to appeal his sentence.

The charges stemmed from two indictments: the first arising from a warrantless police entry into a hotel room, and the second from subsequent search warrants based on information obtained from cell phones seized during the hotel room entry.

The trial judge found the hotel room entry violated s. 8 of the Charter but admitted all evidence under s. 24(2), finding the breach was mitigated by police good faith and the appellant's reduced expectation of privacy.

The appellant was convicted of all charges and sentenced to 10 years imprisonment.

The Court of Appeal dismissed both the conviction appeal and the sentencing appeal.