Richard N. Stern

The appellant, Oliver Ritchie, appealed his convictions for luring a child under 16 and communicating for the purpose of obtaining sexual services of a minor, and sought leave to appeal his 16-month sentence.

The convictions stemmed from an online police sting operation where a detective impersonated a 14-year-old girl.

The appellant denied sending the texts, claiming a stranger used his phone.

The Court of Appeal dismissed the appeal from conviction, finding no errors in the trial judge's application of the law regarding age presumption, evidence assessment, or the W.(D.) analysis.

Leave to appeal sentence was granted but the appeal was also dismissed, as the sentence was not demonstrably unfit and aligned with the Supreme Court's directive in Friesen for increased sentences in child sexual offense cases.

The defendant brought a motion requesting the presiding judge recuse himself because the judge, prior to his appointment, had briefly represented the defendant's counsel and had also represented the local police service in a matter involving the same counsel.

The Criminal Lawyers' Association intervened, arguing for an automatic disqualification rule when a judge's former client appears as counsel.

The court rejected the automatic disqualification argument, applying the standard test for reasonable apprehension of bias.

Finding that the prior retainers were over 20 years old and did not raise a reasonable apprehension of bias, the court dismissed the recusal motion.

Michael Hennesy pleaded guilty to assault following a racist verbal and physical attack on a Chinese student on a bus during the early pandemic.

The victim experienced significant emotional distress.

The court considered Hennesy's tragic personal history, including childhood trauma, addiction, and a lack of prior criminal record, as mitigating factors.

However, the racist nature of the assault and its broader societal impact were deemed aggravating.

The judge imposed a four-month conditional sentence of imprisonment, followed by one year of probation, emphasizing the need to denounce racist conduct despite the offender's personal circumstances.

The appellant was convicted of child luring after communicating online with an undercover police officer posing as a 15-year-old girl.

The trial judge relied on the statutory presumption of belief in age and the appellant's failure to take reasonable steps to ascertain the interlocutor's age.

On appeal, the court applied the Supreme Court's intervening decision in Morrison, which struck down the presumption of belief in age as unconstitutional.

The Court of Appeal held that the trial judge's reliance on the unconstitutional presumption and the failure to take reasonable steps to establish the essential element of belief was a reversible error.

The appeal was allowed, the conviction and conditional stays were set aside, and a new trial was ordered.

The defendant, Tahir Ali, was charged with multiple drug trafficking offenses and manslaughter related to an opioid overdose death.

The court acquitted the defendant on charges of trafficking and possession for trafficking on April 9, 2017, and manslaughter, due to reasonable doubt regarding the source of drugs and causation of death.

The court also acquitted the defendant on a charge of trafficking on April 28, 2017, as the specific substance trafficked was not proven.

However, the defendant was convicted of possession of heroin and furanyl fentanyl for the purpose of trafficking on April 28, 2017, as the arrest was deemed lawful and the seized evidence admissible.

Following a late-night bar ejection, two security workers were tried for aggravated assault arising from serious facial and eye injuries suffered by an intoxicated patron.

The court accepted the independent bystander evidence that one accused repeatedly smashed the patron's head into a glass door and punched him in the face, and rejected speculation that the injuries were caused by an accidental fall onto nearby objects.

Applying the W (D) framework and the criminal burden of proof, the court found the evidence against that accused proved guilt beyond a reasonable doubt.

As to the second accused, the evidence of participation in the beating was inconsistent and left the court with a reasonable doubt.

One accused was convicted and the other acquitted.

The appellant pleaded guilty to possession of powder cocaine for the purpose of trafficking and was sentenced to 12 months' imprisonment.

He appealed the sentence, seeking a reduction to six months less one day to avoid immigration consequences, arguing the trial judge failed to properly consider his post-traumatic stress disorder and misapprehended the sentencing range.

The Court of Appeal dismissed the appeal, finding the trial judge carefully considered all relevant factors and imposed a fit sentence within the applicable range.

The accused was charged with drug trafficking and related offences after a police officer observed a hand-to-hand drug transaction inside the accused's parked motor vehicle.

The officer made the observation while standing on a public sidewalk, looking through the open passenger window.

The accused brought a Charter application arguing that the officer's visual observation constituted an unreasonable search under s. 8 of the Charter, seeking exclusion of the evidence under s. 24(2).

The court dismissed the application, holding that the accused had no reasonable expectation of privacy in his observable activities inside a motor vehicle parked on a public street, and therefore the observation did not constitute a search.

The accused, charged with first-degree murder, brought a motion for a non-suit on the classification of the murder.

The accused argued that the victim was already dead when the acts constituting the alleged sexual assault occurred, and therefore s. 231(5)(b) of the Criminal Code could not apply.

The court dismissed the motion, applying the 'single transaction' principle from R. v. Paré and R. v. Westergard, which holds that the exact sequence of the murder and the underlying offence is irrelevant as long as they form a continuous sequence of events.

The court found sufficient evidence to leave the charge of first-degree murder with the jury.

The Crown sought to admit a confession made by the accused to undercover police officers during a 'Mr. Big' operation.

The accused applied to exclude the evidence, arguing that the surreptitious recording authorizations were invalid, that his right to silence under s. 7 of the Charter was violated, and that the confession should be excluded under common law principles of abuse of process and prejudicial effect.

The court dismissed the application, finding that the accused was not in the functional control of the state, the police conduct was not abusive, the confession was highly reliable, and the wiretap authorizations were validly issued.

The accused, charged with first degree murder, brought a constitutional challenge to s. 184.2 of the Criminal Code, arguing that the provision permitting one‑party consent wiretap interceptions with prior judicial authorization is unconstitutional because it lacks an after‑the‑fact notice requirement.

Relying on R. v. Tse, the accused argued that accountability and reviewability require notice to persons whose private communications have been intercepted.

The Crown argued that the provision remains constitutional because it requires prior judicial authorization based on reasonable grounds.

The court held that the Charter’s s. 8 requirements are satisfied by prior judicial authorization and that the absence of a notice provision does not render s. 184.2 unconstitutional.

The constitutional application was dismissed.

The Crown appealed the sentences imposed on three respondents.

The Court of Appeal found no error in the sentences for Robert Thiffeault Jr. and Robert Thiffeault Sr. given their minor involvement and mitigating factors.

For Donald Harrison, the Court found the trial judge erred as his role was more significant and warranted a reformatory sentence.

However, based on fresh evidence and his compliance with his conditional sentence, the Court declined to incarcerate him.

The appeals were dismissed.

The appellant appealed his conviction, arguing the trial judge erred in finding the necessary mens rea based on wilful blindness.

The trial judge found the appellant should have suspected there was more to a parcel he delivered to a jail than clothing.

The Court of Appeal held that the trial judge erred in law by applying an objective standard ('should have alerted') rather than a subjective one, and by finding a level of suspicion ('may be more') that fell short of the 'probability' required for wilful blindness as defined in R. v. Jorgensen.

The conviction was quashed and a new trial ordered.

The appellant appealed his convictions and sentence.

On consent of the Crown, the Court of Appeal allowed the appeal against conviction on two counts, struck the guilty pleas, and stayed the charges.

The sentence was varied to 20 months concurrent on the remaining convictions, followed by 12 months of probation.

The balance of the appeal was abandoned.

The accused was charged with sexual assault causing bodily harm.

At trial, the Crown introduced similar fact evidence from the accused's former wife regarding alleged past assaults to show a propensity for non-consensual, painful sex.

The accused argued the evidence was highly prejudicial and that the former wife and the complainant had colluded.

The trial judge admitted the evidence and left the issue of collusion to the jury, resulting in a conviction.

The Court of Appeal ordered a new trial.

The Supreme Court of Canada dismissed the Crown's appeal, holding that the similar fact evidence was wrongly admitted because its prejudicial effect outweighed its probative value, and the trial judge erred in law by failing to resolve the issue of collusion as a condition precedent to admissibility.

The respondent, an accounting manager, pleaded guilty to fraud and theft after stealing $286,636 and defrauding his employer of $1.9 million to participate in a Nigerian mail scam.

The trial judge imposed a conditional sentence of two years less a day.

The Crown appealed the sentence.

The Court of Appeal allowed the appeal, holding that a penitentiary sentence in the range of three to five years was required given the large-scale fraud, breach of trust, and devastating impact on the employer.

Giving credit for the 9.5 months already served under strict conditions, the Court varied the sentence to two years less a day in custody.

The appellant appealed his conviction for driving with a blood alcohol level over 80, arguing his s. 10(b) Charter right to counsel was violated.

The arresting officer made one attempt to contact the appellant's personal lawyer before connecting him with duty counsel.

The appellant spoke with duty counsel and voluntarily provided breath samples without further complaint.

The Court of Appeal dismissed the appeal, finding the appellant failed to meet the onus of proving a Charter breach as he appeared satisfied with duty counsel's advice at the time.

The appellant appealed a conviction for sexual assault arising from an allegation that intercourse continued after consent was withdrawn and escalated to forced anal intercourse.

The Crown had adduced similar fact evidence from the appellant's former spouse concerning seven alleged incidents of physical and sexual abuse.

The court held that the proposed evidence lacked the necessary pattern or distinctive similarity, was weakened by credibility frailties and potential collusion, and primarily invited impermissible propensity reasoning.

Because its slight probative value was outweighed by its highly prejudicial effect, the evidence should not have been admitted.

A new trial was ordered.

The appellant appealed sentences imposed at the conclusion of three separate trials arising from three discrete sets of criminal acts occurring within roughly two weeks.

The Court of Appeal considered the aggregate 18-year sentence, functionally equivalent to 20 years with pre-trial custody, through the lens of the totality principle.

Given the combination of firearm, drug trafficking, forcible confinement, assault, and attempted murder offences, including planning and deliberation in the most serious incident, the court held the overall sentence was fit and within range.

Leave to appeal sentence was granted, but the sentence appeals were dismissed.

The appellant appealed his convictions for possession of a restricted weapon and possession of cocaine for the purpose of trafficking, arguing that the trial judge misapprehended the evidence, improperly relied on his failure to testify, and lacked evidentiary support for a trafficking-purpose finding.

The Court of Appeal held that it was permissible for the trial judge to note the absence of evidence supporting any inference other than guilt.

The court found sufficient circumstantial evidence linking the appellant to the motor vehicle in which the weapon and drugs were found.

Any misapprehension as to the location of the drugs in the vehicle did not amount to reversible error, and the conviction appeal was dismissed.